Tampa Shipyards, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Tampa Shipyards used a tower crane to lift and swing a ship-deck section that workers believed weighed 33 tons while the boom was set for a 21-ton capacity. The crane collapsed during the lift and killed two employees. The Commission affirmed a willful general duty clause violation because supervisory leadermen knew about the overload and the company had not established effective weighing, written training, or lift-monitoring controls. Feasible protections included operable load indicators, accurate engineering calculations, a written crane safety program, and management monitoring of lifts near crane capacity. The Commission found that Tampa's longstanding tolerance of overload practices showed plain indifference to employee safety and upheld the $8,000 penalty. The appended ALJ decision also addressed separate citation items, including affirming a serious violation for unavailable fire-extinguishing equipment after a shipboard welding fire.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1910.106(e)(2)(iv)(d); 29 C.F.R. § 1915.52(b)(2).
• Outcome: Willful general duty clause violation affirmed with an $8,000 penalty.
• Key point: Known crane overload practices can support a willful violation when supervisors permit them and the employer lacks effective systems for weighing loads, training operators, and monitoring high-capacity lifts.

Full text (OSHRC public release)

Docket No. 86-0360 86-0469

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 Tampa Shipyards, Inc. ("Tampa") for discretionary review of the
decision of Administrative Law Judge James D. Burroughs.  The portion of the judge's
decision directed for review is his finding that Tampa willfully violated the general duty
clause, section 5(a)(1), of the Occupational Safety and Health Act ("the Act"),
29 U.S.C. � 654(a)(1).[[1]] The Secretary alleged that one of Tampa's cranes was used to
hoist a load that was known to be in excess of the crane manufacturer's recommended load
limitation ("rated load capacity").  While hoisting the load, the crane had
collapsed and killed two employees.  For the reasons set forth below, 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.  At approximately 6:15 p.m. on October 4, 1985, a Tampa crane operator was
using tower crane no. 6 to lift and then horizontally move part of a ship deck called the
"0-1 section." [[2]]   In his decision, Judge Burroughs described the
circumstances that led to the accident:

An eyewitness and participant in the lift, Wendell
Croft, testified to the facts surrounding the lift.  His testimony is
undisputed.  As rigger leaderman for the second shift, he received the turnover sheet
from the day shift leaderman as to what was expected to be completed that evening. 
He was told by Joe Seither, the day shift leaderman, to set the 0-1 section on the bow of
a ship under construction.  He was not given any instructions as to how the lift was
to be made.   He understood the load weighed 33 tons.  This weight was recorded
on his paperwork.  He told William Caulley, leaderman of the crane operators, and
James Morgan, the crane operator, what the load weighed.  The three of them discussed
the load that evening.  Croft assigned two riggers, Michael Sicich and Ezekial Bains,
to assist in hooking up the load and receiving it on the bow.

After discussing the lift and assigning riggers to
assist, Croft went to the supervisor's office.  He returned to the crane site when
they were ready to make the lift and was in radio communication with Caulley. There was
concern over the weight of the load to be lifted.  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.  Croft agreed to watch the rollers of the cab and to notify
Caulley by radio if the rollers commenced to raise off the turntable.  Caulley lifted
the load a height of approximately 6 to 18 inches and held it while Croft observed that
the wheels were firmly on the turntable.  The load was then lifted to a height of 10
feet above the dry dock and held for approximately 90 seconds to make sure the crane would
handle the load.  The wheels remained on the turntable, and Caulley indicated he was
going to place the load.  He commenced swinging the load to the north and the wheels
started to rise from the tracks.  Croft told him that the wheels were coming
up.  As the load was being swung horizontally to the north, the crane toppled.

(Footnotes and citations to record omitted). 
Following an investigation of this incident, the Secretary issued a citation alleging that
Tampa had willfully violated the general duty clause in that "[o]n or about October
4, 1985, and at other times, tower crane(s) were used to hoist loads, or boom out with
hoisted loads, in excess of the crane manufacturer's recommendation."[[3]]  As a
feasible abatement method, the citation stated that Tampa should "comply with the
manufacturer's load rating indicator, which is located inside the cab of each crane,
formulate a crane safety policy and institute a system of enforcement of that
policy."

Judge Burroughs found that the practice of
"[u]tilizing a crane to hoist loads in excess of the crane manufacturer's
recommendation" was "'recognized [as a hazard] by officials of Tampa
Shipyards." He held that such "overloading of a crane can cause it to overturn
and result in death or serious physical harm to employees."  The judge further
found that Tampa had no clearly defined policy for preventing overlifts and, in
particular, that it lacked procedures for accurately determining the weights of the loads
to be lifted.  Judge Burroughs concluded that the hazard could be abated by better
communication and enforcement of detailed safety instructions prohibiting
overloading.  These instructions would include procedures to ensure that accurate
weights are provided to the crane operators.

DISCUSSION

In order to prove a violation of section 5(a)(1) of
the Act, the Secretary must show that: (1) a condition or activity in the workplace
presented a hazard to an employee, (2) the hazard was recognized, (3) the hazard was
likely to cause death or serious physical harm, and (4) a feasible means existed to
eliminate or materially reduce the hazard.   E.g., United States Steel Corp., 12 BNA
OSHC 1692 1697-98, 1986-87 CCH OSHD � 27,517, p. 35,669 (No. 79-1998, 1986). The evidence
must show that the employer knew, or with the exercise of reasonable diligence could have
known, of the violative conditions.   Id. at 1699, 1986-87 CCH 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 judge erred in holding that the Secretary proved: (1) that Tampa failed to use
feasible means to materially reduce the hazard, (2) that Tampa had the requisite knowledge
of the violation, and (3) that the alleged violation was willful. [[4]]

I. Whether there were feasible means to
materially reduce the recognized hazard

As mentioned above, the Secretary bears the burden of
establishing that feasible and useful means existed to eliminate or materially reduce the
recognized hazards. Matthew Burkart, an expert on crane safety operations, testified to
various feasible and useful measures that would minimize the hazard of a crane overload
such as the one that occurred on October 4, 1985.  Those measures included installing
a load indicator on each crane, creating a written crane safety policy, and monitoring
potential overlifts.   We find that the Secretary met her burden of proof 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 vast
facility.  Tampa had attached a weighing device called a load indicator to the boom
of only one of the six cranes (crane no. 3), and that device had been inoperable for at
least six weeks before the accident.

Tampa had no effective system for weighing the
cranes' loads.   Tampa's General Superintendent Ewell Rhoden testified that Tampa had
a dynamometer which leadermen could use to determine the weights of loads about which they
were concerned.  However, there was no evidence that Tampa required the use of the
dynamometer, and the evidence clearly shows that no accurate weighing device was used
consistently for potential capacity loads.  For example, crane operator Joseph Mossey
testified:

when you make a lift, it's general knowledge, and the
way I was taught was if they told you one weight, you try to give yourself approximately
five times [sic] more towards your favor because a lot of times [the] weights are not
correct, ....

There was additional testimony about numerous
specific occurrences of failure to accurately weigh potential capacity loads on the cranes
at issue during the weeks and months before the accident.  The record establishes
that the 0-1 section involved in the accident had not been weighed beforehand.  A
Tampa plant engineer testified that, after the accident, the load was determined to weigh
38.099 tons.   Croft had understood that it weighed 33 tons, and had passed on this
erroneous information to both Caulley and Morgan.  Thus, although Caulley and Croft
knew that crane no. 6 was overloaded before the fatal lift, they did not know the full
extent of the overload.  Crane operator Mossey testified that he lifted the same load
that was involved in the accident, earlier on the day of the accident, using crane no.

3.  He testified that "the only proper way of weighing is with the scales that
are in the crane, and those were not working at the time."  Crane operator
Johnny Lee testified without contradiction that, a few weeks before the accident, a rigger
leaderman misinformed him as to the weight of a piece comparable to the one involved in
the accident.  Crane operator Sims testified that he did not know the weight of
certain grandstands that he lifted a few weeks before the accident, and which he believed
approached or exceeded the crane's capacity.  Crane operator Charles Christie
testified that in approximately August, 1984, he argued at length that it was unwise to
lift a front-end loader whose weight was unknown.  He finally agreed to lift it,
utilizing an extra safety precaution -- an electrician to check the limit switches.  
(A limit switch 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 20 tons, resulting in an overlift.

In addition, crane operator Lee Hansen testified that
many times during the years preceding the accident, the weights provided to him on crane
no. 3 were incorrect.  He explained that he knew this because crane no. 3 had a load
indicator, and he had checked the weights.  Hansen testified that he thought the
weights given to him on other cranes were also wrong, because he would notice himself
leaning forward in the cab, which would feel light, and he would observe unusual stress on
the crane.  He stated that this occurred with the sand pots he routinely lifted as
part of Tampa's ship sandblasting operation.

The testimony of these crane operators establishes
that Tampa did not have an effective system for weighing, or even identifying, potentially
excessive loads.  Burkart, the Secretary's expert witness, testified as to the
measures that were needed:

if you don't know the weight of the load, you either
have a load indicating device on the machine as you pick it up so you can get an accurate
reading before you attempt to lift it, or you make an effort to calculate the load as
accurately as possible through engineering calculations.

He testified that load indicators could be attached
to each of the cranes in question, and that doing so would materially reduce the problem
of inaccurate or unknown weights that crane operators were lifting.  Burkart further
testified that load indicators, which have been on the market for a number of years, are
quite common and accurate. His testimony establishes the feasibility and likely utility of
installing load indicators on each of the six cranes, to materially reduce the risk of
overlifts.

b. Written crane safety program

Tampa recognized the feasibility and utility of a
written program for training crane operators.  Its contract with the employees' union
contained the following provision:

a learner or apprentice program will be instituted at
the Employer's yard.  Each program shall be reduced to writing as mutually agreed by
the parties and such program shall be governed by the terms of those agreements and not
[by] the terms hereof.

Searle Walton, Tampa's safety director, testified
that "how we train the operators is really an apprenticeship program."

However, Walton acknowledged that Tampa had no
written crane safety policy.  Its general employee safety manual did not relate
directly to crane operators, but only to the duties of other employees when dealing with
crane operators.   The only instruction course discussed in the evidence was one
given by the union.[[5]]  Crane operator Barry Sims testified that he had trained new
operators on behalf of Tampa, that he had received no guidance from the company as to what
to tell the trainees, and that the trainees were not tested before they became crane
operators.   Sims further testified that there was no written apprenticeship program
at Tampa.   Crane operator Ashmore testified that his basic instructions on crane
safety were to "use your best judgment."

Burkart testified that Tampa's oral, on-the-job
training for crane operators "appears to be good," but that the lack of written
safety instructions specific to crane operators was a defect in Tampa's safety
program.  The evidence overwhelmingly establishes that Tampa did not have the kind of
written apprenticeship program that it knew was necessary.  Furthermore, Burkart
testified that Tampa's training of operators was deficient in numerous other ways,
including: (1) the failure to tell operators what to look for during the required daily
inspections of cranes;[[6]] (2) the failure to prohibit the operators' practice of lifting
a load of unknown weight off the ground, with the boom angle set, to test the crane's
capacity to transport the load; (3) the apportionment of a trainee's instruction to
several different operators; and (4) the lack of a formal evaluation system to determine a
trainee's qualifications.

Burkart described major improvements that could be
made to Tampa's training program.  He testified that Tampa could readily develop an
outline of what it needed to teach the operators, and a formal method of evaluating
whether the operators were qualified.  He added that having such a program in place
would result in a much safer operation because Tampa would know that its crane operators
were qualified.  We conclude that the Secretary established that Tampa could have
made numerous feasible and useful improvements to its crane safety program that would have
materially reduced the risk of operators attempting overlifts on the cranes.

c. Monitoring Lifts

At the time of the crane collapse, Tampa had no
system for monitoring compliance with the weight limitations of its cranes.[[7]] 
Burkart described a monitoring program that would effectively enforce the prohibition
against overlifts.  He testified that in such a program, the company's management
instructs the crane operators and "front line supervision" (here, leadermen)
never to attempt an overlift, and the leadermen's supervisors monitor lifts "to see
that it doesn't happen."

Burkart testified that most lifts need not be
monitored, because they will not approach the crane's rated capacity.  Thus,
monitoring "a very small portion of [total lifts] soon gets the message across to the
employees that overloads are not going to be tolerated ... [and] creates an
awareness" which results in eliminating overloads.  Burkart discussed various
nuclear power plant construction sites where effective crane safety programs had been
instituted along the lines that he suggested.[[8]]  We find that Burkart's testimony
establishes the feasibility and likely utility of a lift monitoring program in reducing
the risk of overlifts.

Based on the discussion in section I, we find that
the Secretary established the feasibility and likely utility of several abatement steps
that would have materially reduced or eliminated the recognized hazard of hoisting loads
in excess of the crane manufacturer's recommendations.  Those steps included
installing and using a load indicator on each crane, developing a written crane safety
program, and implementing 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 violation is whether the employer knew, or with the exercise of reasonable
diligence could have known, of the violative conditions.  The actual or constructive
knowledge of a foreman or other supervisory employee can be imputed 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 employee who has been delegated authority over other employees,
even if only temporarily, is considered to be a supervisor for the purposes of imputing
knowledge to an employer.   Id. Therefore, the Secretary may establish the requisite
employer knowledge by showing that a supervisor knew or with the exercise of reasonable
diligence could have known of the violative conditions.  The employer can rebut that
showing by offering evidence that the supervisor's failure to follow proper procedures was
unpreventable.   Id.

a. Whether the leadermen were supervisors

Here, the judge found that leadermen such as Croft
and Caulley were supervisors, and that their knowledge of overlifts should be imputed to
Tampa.  Tampa argues that imputing the leadermen's knowledge here is improper,
because they were not supervisors.  For the reasons set forth below, we reject this
argument.[[9]]

Tampa's collective bargaining agreement with its
employees' unions stated that leadermen were first-line supervisors, and that the union
has no right to interfere with the supervisory functions of leadermen.[[10]]  The
leadermen were directly responsible to Tampa's management.  There was no level of
supervision between the leaderman and Tampa's superintendents, Rhoden and Jim Baker. 
In particular, the leadermen were responsible for informing the superintendents of safety
problems reported to them by employees.  As noted above (note 8), the union contract
clearly stated that an employee "will initially raise requests, complaints, or
questions concerning his work" with the leaderman.   We find that where
leadermen such as Caulley and Croft exercised this type of authority over the work being
performed, they were 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 nevertheless proceeded with
the lift, with the boom angle set for a load of only 21 tons.  Under the principles
discussed above, that evidence makes a prima facie 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 safety
policy and was unpreventable.  As mentioned above, to rebut the Secretary's prima
facie proof that the knowledge of company supervisors should be imputed to it, the company
must offer evidence that it had established work rules designed to prevent the violation,
had adequately communicated those work rules to its employees (including supervisors), had
taken reasonable steps to discover violations of those rules, and had effectively enforced
the rules in the event of infractions.  E.g., O'Horo.  See Jones & Laughlin
Steel Corp., 10 BNA OSHC 1778, 1782, 1982 CCH OSHD � 26,128, p. 32,887 (No. 76-2636,
1982) (comparable evidence required to rebut Secretary's prima facie case of violation
under � 5(a)(1)).

In order to prevent overlifts, Tampa needed work
rules designed to ensure that its crane operators and leadermen received accurate weight
estimates for all potential capacity loads, and that they attempted no lift unless the
weight estimate was safely within the crane's rated capacity.  Tampa, however, had no
such rules.   Tampa notes that many of its crane operators and riggers were aware of
an unwritten rule prohibiting crane overloads, because they were told by Anselmi, Tampa's
President, not to make an overload and to come to him if there was an overload.  The
crane operators recognized that it was a matter of common sense not to overload a crane.

However, that general understanding was inadequate to
correct the longstanding, hazardous practices that led to so many overlifts.  As
further discussed below, Tampa's leadermen and crane operators often made lifts based on
inaccurate weight estimates, and they had a practice of testing the crane's ability to
make a potential capacity lift by seeing how far off the turntable the rollers came.
  These practices were not contrary to any of Tampa's work rules. Burkart, the
Secretary's expert witness, testified that if the rollers came off the turntable, it
indicated a "severe overload."  Thus, Tampa did not have the necessary work
rules to deal with the root causes of the overlifts. For this reason alone, Tampa has
failed to rebut the Secretary's prima facie evidence that its leadermen's knowledge of the
violative conditions should be imputed to it.

Even if Tampa had created adequate work rules, there
is no evidence that it attempted to discover violations of crane safety rules.  Thus,
it could not have enforced its work rules effectively.  We therefore conclude that
Tampa has failed to rebut the Secretary's prima facie showing that the knowledge of
leadermen Croft and Caulley of the violative 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 or voluntary disregard for the requirements of the Act, or with plain
indifference to employee safety.   E.g., Williams Enterp., 13 BNA OSHC 1249,
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 their knowledge of violative conditions.  E.g., Donovan
v. Capital City Excavating Co., 712 F.2d 1008 (6th Cir. 1983) (finding of willful
violation required where crew foreman knew that trench was not supported as OSHA
compliance officer had said was required, yet foreman ordered crew 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-level supervisors had received repeated warnings of serious fall hazard, and it
was not corrected); Western Waterproofing Co. v. Marshall, 576 F.2d 139, 144-45 (8th Cir.)
(employer is responsible for willful nature of foreman's disregard of instructions, where
foreman's action is preventable), cert. denied, 439 U.S. 965 (1978) (cited in Georgia
Electric Co. v. Marshall, 595 F.2d 309, 320 n.27 (5th Cir. 1979)).  For the reasons
that follow, we find that Tampa is responsible for the plain indifference to employee
safety that Caulley displayed in permitting the overlift on October 4, 1985.

Caulley was Tampa's chief leaderman for the crane
operators.   He had a longstanding, reckless practice of allowing lifts in excess of
the crane's capacity to proceed with the rollers off the turntable, as he did on October
4, 1985.   Crane operator Barry Sims, who had been a crane 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 "lot of times," and that "[g]enerally when he would come up
in the crane, it was going to be an over lift...." Sims specifically recalled one
such lift with crane no. 3, a month or less before the accident. A smokestack was 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 a 15-ton overlift.

Sims testified that at about the same time, he was
directed to lift some grandstands to be used for the dedication of a ship.  Sims
asked Caulley to 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 that
Caulley watched the rollers while he completed it.  Sims testified without objection
that, "I think my rollers were off ... two inches."[[11]]

Caulley was not the only leaderman who permitted
lifts without ensuring that the rollers would rest firmly on the turntable.  For
example, crane operator Burton Ashmore testified that once, when he brought his
leaderman's attention to the fact that the rollers on crane no. 5 were off 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 not challenged.  There is no evidence that
Tampa's safety practices changed between the time of the leaderman's statement to Ashmore,
and the 1985 accident.

The testimony demonstrates that, specifically during
the weeks and months before the accident, supervisors other than Caulley were informed of
lifts proceeding with the rollers off the turntable.  Mechanic Don Leske testified
that, during a lift on crane no. 6 in mid-September 1985, a few weeks before the accident,
he saw the rollers in the back of the cab come up off the rail.  At that time, he
brought the situation to the attention of the operator of the crane, James Screws.  
Leske testified that he then informed the garage foreman of his observations.

Screws testified that the next morning, he informed
his immediate supervisor, leaderman Marshall Abrams, of the overlift.  He also
testified that it was the leaderman's job to inform General Superintendent Rhoden of such
matters.  Tampa called Rhoden as a witness to testify on other matters, and he did
not refute Screws' testimony in any respect.

Crane operator Ashmore testified that he informed
rigger leaderman Seither, during a lift in mid-1984, that the rollers were not firmly on
the turntable, and that after Seither held a discussion with Rhoden, Rhoden directed
Ashmore to proceed with the lift.  The lift involved a ship section that Ashmore was
sure exceeded the rated capacity of crane no. 5, which he was operating.  The load
was the same kind of 0-1 section that was involved in the 1985 accident. Ashmore testified
that he felt the rear of the crane come up when he initially picked up the 0-1
section.  He then "yelled down" to Seither that the piece was too heavy,
and specifically that the rear end of the crane had come up.

Ashmore then set the load down.  He observed
Seither talking with Rhoden, after which Rhoden walked over, pointed his finger up at
Ashmore, and indicated vehemently that he wanted him to lift the load again.  Ashmore
got the impression from Rhoden's attitude on that occasion that he could be fired for
failure to make an overlift as directed.  Ashmore did not know whether Rhoden
actually knew that the crane was overloaded.  However, Ashmore believed that Rhoden
was within earshot when Ashmore yelled down to Seither about the apparent overlift. 
Ashmore's testimony about that specific incident was not contradicted.

The leadermen's practice of attempting lifts with the
rollers off the turntable was reckless.  As mentioned above, crane operations expert
Burkart testified that if rollers come off the turntable during a lift, it indicates
"a severe overload."  The crane operators who testified had the same
understanding.[[13]]  Burkart explained that the maximum capacity of a crane is rated
at only 75 percent or 85 percent of the load that could cause the rollers to leave the
turntable.  He gave the opinion that the type of crane involved in the accident was
not designed so that the rollers may leave the turntable safely.[[14]]

The evidence demonstrates that none of the cranes at
issue were designed to operate safely with their rollers off the turntable.  The
crane involved 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, as
Tampa's Safety Director testified. [[15]]   Burkart testified that crane nos. 5 and 6
were identical "except for a few small details .... " Crane Operator Lee
testified that crane no. 3 was a Diamond crane.  Tampa presented no evidence that
crane no. 3 was designed to operate safely with the rollers off the turntable.

Under the principles set forth at the outset of this
section, Tampa is responsible for its leadermen's longstanding, well-known and reckless
practice of attempting lifts with the rollers off the turntable.  Tampa is equally
responsible for the well-known, reckless practice of allowing lifts to proceed without an
accurate weight estimate, including potential capacity lifts.  Despite the knowledge
among supervisors of these reckless practices, Tampa's crane safety program remained lax.

For example, as discussed above, Tampa failed to
develop a system calculated to ensure that the crane operators received accurate weight
estimates. Tampa's employee training was haphazard, with no work rules designed to prevent
crane operators from lifting loads that did not have an accurate weight estimate safely
within the crane's rated capacity.  Tampa failed to take steps to create the written
apprenticeship program for crane operators that it was contractually obligated to prepare.
  Nor did it develop a monitoring program to detect violations of crane safety
requirements.

Tampa's failure to provide accurate weighing methods
is particularly difficult to understand in light of crane operator Hansen's testimony that
Tampa actually had load indicators lying on the floor of the cabs on crane nos. 4, 5 and 6
when those cranes were being assembled during his first two years with Tampa, starting in
1980.  Hansen did not know whether the load indicators were actually part of those
cranes.  However, Tampa did not suggest any other reason why they were in the cabs,
and failed to explain why it never installed load indicators on those cranes.

The evidence establishes that Tampa is responsible
for the plain indifference to employee safety that its leadermen showed by their reckless
crane lifting practices, including Caulley's actions on October 4, 1985.  See, e.g.,
Mineral Industries & Heavy Constr. Group, Brown & Root, Inc. v. OSHRC, 639 F.2d
1289, 1295 (5th Cir. 1981) (failure to institute and enforce procedures known to be
required constitutes willful violation).  The evidence shows "such reckless
disregard for employee safety ... that one can infer that if the employer had known of the
[legal provision], the employer would not have cared that the conduct or conditions
violated it."  Williams Enterp., 13 BNA OSHC at 1257, 1986-87 CCH OSHD at p.
36,589.  The Secretary has made the concrete evidentiary showing required to
establish that Tampa willfully violated section 5(a)(1).  Cf., e.g., United States
Steel Corp., 12 BNA OSHC at 1703, 1986-87 CCH OSHD at p. 35,675 (citing, inter alia, St.
Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 846 (8th Cir. 1981)) (more concrete evidentiary
showing is required to prove violation of general duty clause than of more specific
standard).[[16]]

Tampa attempts to minimize the significance of the
overlifts by arguing that there were ten million lifts at the shipyard during the seven
years before the accident.  There is no basis in the record for that assertion,
however.  Its apparently rests on the representation by Tampa's counsel, not
supported by evidence, that all the cranes on its vast worksite were used for two shifts a
day for seven years, making about 100 lifts a day.  However, this case relates only
to tower crane nos. 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 and months
before the accident establishes that a widespread, severe, and well-known safety hazard of
overlifts way ongoing on the worksite.

Tampa argues that its safety efforts were made in
good faith, thus precluding a finding of willfulness.  If an employer has made a good
faith effort to comply with the Act's requirements, a finding of willfulness is not
justified, even though the employer's efforts are not entirely effective or
complete.  However, the test of good faith in this regard is an objective one --
whether the employer's efforts to comply were reasonable under the circumstances. 
See Calang Corp., 14 BNA OSHC 1789, 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 constitute objective
good faith effort to comply with standard, where employer provides no reasonable basis for
failing to use other required safety measures).  Tampa fails this test.  Its
lack of response to the widely known problem of overlifts was unreasonable.  For
example, as discussed above, Tampa has given no reasonable basis for failing to provide an
operable load indicator on each crane, written training materials for crane 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 fatalities demonstrate.   Tampa had a vast shipyard with a large number of
cranes and employees.  Its safety program was deficient in crucial respects.  In
light of the willful nature and high gravity of the violation, and having 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 and assessed by the judge is appropriate.

CONCLUSIONS

For the reasons set forth above, we affirm a willful
violation of the general duty clause of the Act, as alleged in Item 1 of the willful
citation in Docket No. 86-360.  We assess a penalty of $8000 for that violation.

Edwin G. Foulke, Jr.

Chairman

Donald Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: 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 the Solicitor, U. S.
Department Of Labor, Atlanta, Georgia, on behalf of complainant

Robert 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 and
Health Act of 1970 ("Act"), and a willful citation, alleging four violations of
section 5(a)(1), issued to it on March 3, 1986.  The citations emanated from an
investigation of two fatalities occurring on October 4, 1985, as a result of a crane
falling at respondent's shipyard in Tampa, Florida.  Tampa Shipyards also contests a
serious citation issued to it on March 14, 1986, as the result of an accident
investigation 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 decision holding that
29 C.F.R. � 1910.179 was applicable to the cranes used by Tampa 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,
the Secretary was precluded from relying on section 5(a)(1) of the Act.  The motion
to reconsider was granted by an order issued on July 6, 1987, and the proposed decision
mailed to the parties on June 18, 1987, was withdrawn.  On reconsideration, it is
concluded that no standards are applicable 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 6 crane, operated by James J. Morgan, the crane operator, and William, F. Caulley,
the crane operator leaderman, fell to the surface of the number 2 dry dock while lifting a
part of a ship deck referred to as an 0-1 section (Tr. 36, 41-42, 165).  Both
employees were killed.  All of the alleged 5(a)(1) violations pertain to conditions
regarding cranes, referred to as numbers 1, 2, 3, 4, 5 and 6, used by Tampa Shipyards in
its operations.

Preemption Defense

Tampa Shipyards argues that it has been improperly
charged with violating section 5(a)(1) of the Act.  It contends that section 5(a)(1)
is inapplicable to the facts because OSHA has adopted standards which address the subject
matter of the alleged violations. This argument relies on the principle established by the
Commission "that the Secretary cannot rely on the general duty clause when a specific
standard applies to the facts."  Kastalon, Inc., 86 OSAHRC___, 12 BNA
OSHC 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 or health standard is applicable, the Secretary
can rely on the general duty clause to obtain correction of a workplace hazard.  Kastalon ,
Inc. , supra .

The Secretary argues that section 5(a)(1) is
appropriate because no specific standards deal with the particular cranes and conditions
in issue.   The standards cited by Tampa Shipyards as being applicable, according to
the Secretary, are limited in scope.  While some standards may cover similar
situations with certain types of cranes, the Secretary contends that they are not
applicable to the cranes cited in this case.

Tampa Shipyards refers to standards in Subpart G of
Part 1915, among others, as being applicable to the cranes in issue.  Part 1915 of 29
C.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 ship repairing and shipbuilding business.  The standards referred to by Tampa
Shipyards in Subpart G are directed toward gear and equipment for rigging and material
handling.  Section 1915.111 provides for inspecting of gear and equipment used for
rigging.  Section 1915.112 applies to ropes, chains and slings.  Section
1915.113 applies to shackles and hooks.   Section 1915.114 applies to chainfalls and
pull-lifts.  Subsections (a) and (c) of section 1915.115 apply to derricks and cranes
but are limited to those "which are part of or regularly placed aboard barges, other
vessels or on wingwalls of floating drydocks" and mobile crawler or truck cranes used
on a vessel.  Section 1915.116 applies to the use of gear.  While section
1915.117 is entitled "Qualification of operators," no specific provision of that
standard covers the conditions in issue.   There are no specific standards in Subpart
G of Part 1915 that are applicable to the conduct allegedly in violation of section
5(a)(1) in this case.

Where there are no specific standards, a general
standard which might otherwise be applicable to the same condition will
prevail.   29 C.F.R. � 1910.5(c)(1) and (2).  Tampa Shipyards submits that
the general industry standards, Part 1910 of 29 C.F.R., apply to all users of cranes
including those engaged in maritime operations.  In Dravo Corporation v. OSHRC ,
613 F.2d 1227, 1234 (3d Cir. 1980), the court concluded:

. . . . even in areas properly citably under specific
maritime standards, the Secretary my hold an employer to the general industry standards in
those situations where no specific standard is applicable.

The Secretary does not contend that the general
industry standards are not applicable in the absence of specific maritime standards,
[[1/]] he does contend that the general industry standards pertaining to cranes are
inapplicable to the tower or portal cranes used by Tampa Shipyards.  The Area
Director is directed to issue citations under the general duty clause "in appropriate
circumstances where employees are exposed to hazards which are covered by neither shipyard
employment (Part 1915) nor General Industry Safety and Health Regulations (Part
1910)."  Section D.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
clear in section D that the standards are to be enforced "in a manner consistent with
their respective scopes and definitions."  They apply in appropriate
circumstances. Their inclusion in Appendix A of the instruction is not interpreted to mean
that they apply to all cranes used in a shipyard regardless of design, operation and other
fundamental characteristics.

One of the difficulties in determining if the general
industry standards apply concerns the proper classification of cranes 1 through 6. 
Counsel for the Secretary and the numerous crane operators testifying in this matter
referred to the cranes as gantries (Tr. 147, 163, 172, 218, 239, 244-245, 267, 328, 578,
588-589, 732).  The citations refer to the cranes as tower cranes.  Matthew
Burkhart, a crane expert testifying on behalf of the Secretary, classified the cranes as
portal cranes which run on rails with a revolving structure on top (Tr. 850, 1024, 1038).
  According to Burkhart, the difference between a portal and tower crane is that the
portal crane has an opening at the bottom of the structure supporting the crane; whereas,
the tower crane has lacework from the top to the bottom of the support structure (Tr. 850,
1024, 1038).  The cab of the crane that fell was situated on a turntable or rail
circle on top of a tower approximately 80 feet high.  The turntable allowed the crane
to turn by means of rollers underneath the cab.  The tower configuration had 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 the rails.  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
consisting of columns and bracing capable of supporting a crane with its working and
dynamic loads."  The cranes in this case were on "a movable structure
frame."  Section 4-0.2 of ANSI B30.4-1981 defines a portal crane and tower crane
as follows:

crane , portal .  A crane consisting
of a rotating superstructure with operating machinery and boom, all of which is mounted on
a gantry.   The crane and gantry assembly may be fixed or mobile.  An opening
for traffic is normally provided between the gantry columns or legs.  (Fig. 4)

crane , tower .  Similar to a portal
crane, but with a tower between the rotating superstructure and gantry or fixed foundation
and no provision is normally made for traffic (Figs. 1 and 2).  To resist overturning
moments, the assembly may be counterweighted, fixed to a foundation, or a combination of
both.   The gantry (tower) and crane may be fixed or mobile (horizontally or
vertically).

A portal crane is mounted directly on a gantry. 
A tower crane has a tower between the rotating substructure and the gantry.  The
cranes in this case had a tower between the rotating substructure and the gantry (defined
as a "movable structure frame").  A tower crane is illustrated in 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 a photograph of crane number 5, and to Exhibit 17, which is a drawing of a
crane resembling crane number 6 (Tr. 455, 822).  The bottom portion of the crane in
Figure 1 is referred to as the gantry.   It supports the tower 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 and configuration of cranes 1 through 4.  Burkhart, who observed
cranes 1 through 5, testified that they were basically portal cranes "running on
rails with a revolving structure on top" (Tr. 850).  He stated that cranes 5 and
6 were similar (Tr. 1031).  The safety manager for Tampa Shipyards, Searle Walton,
also testified that cranes 5 and 6 were similar (Tr. 455).  Crane operator Barry Sims
thought cranes 5 and 6 were identical (Tr. 678).  The crane operators and counsel for
the Secretary referred to all the cranes as gantries.  According to Burkhart, people
in the trade often refer to tower cranes as gantries (Tr. 1034).  There is no
evidence indicating that cranes 1 through 4 were any different than those described by
Burkhart, and there is no reason to assume or believe they should be classified
differently than cranes 5 and 6.   Accordingly, it is concluded that crane numbers 1
through 6 are properly classified as tower cranes.

Burkhart's statement that the cranes were
"basically a portal crane" is not 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).  The
definition of tower crane in ANSI B30.4-1981 states that it is "similar to a portal
crane."   Figure 1 refers to the portal area.  It is further noted 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 opening between the legs of its supporting structure, adapted to
hoist and swing loads over high obstructions and mounted upon a fixed or mobile tower-like
gantry.  The revolving crane may be supported on the tower by a revolving mast or by
a turntable.

This definition refers to a tower crane as a portal
crane, whereas the 1981 edition of the standard uses the phrase "similar to a portal
crane."  It is clear that a tower crane can be referred to as a type of portal
crane.

In arguing that general industry standards are
applicable to the cranes in question, Tampa Shipyards makes particular reference to the
provisions of 29 C.F.R. � 1910.179 and 29 C.F.R. � 1910.180.  The law is clear that
the general industry standards, Part 1910 of 29 C.F.R., can apply to users of cranes
engaged in maritime operations if there are no specific standards covering the factual
allegations of the cranes in issue.  Since Part 1915 does not cover the conduct in
question, a determination must be made as to the applicability of � 1910.179 and �
1910.180.

Section 1910.179 pertains to overhead and gantry
cranes.   Its application is set forth under � 1910.179(b) as follows:

(b) General requirements --(1) Application . 
This section applies to overhead and gantry cranes, including semigantry, 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.

While the cranes in issue were commonly referred to
as gantries by employees, they do not fit the definition of a gantry crane as defined by
� 1910.179(a)(6), which states:

"Gantry crane" means 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.

The tower cranes have no bridge or trolley but do
have a movable structure frame, referred to as a gantry, [[2/]] that can travel on fixed
rails.   In a technical sense, the tower cranes in issue and gantry cranes have at
least one similar travel characteristic since they both move on fixed rails.

Subsection (b) of � 1910.179 specifically states
that the listed cranes are grouped because "they all have trolleys
and similar travel characteristics "(Emphasis added).  Even if it is concluded
that the phrase "similar travel characteristics" refers to travel along fixed
rails rather than to the travel of the trolley, the tower cranes have no trolleys [[3/]]
and different operating characteristics.  The tower cranes have no bridge rails which
carry the hoisting mechanism.  They have a rotating superstructure with operating
machinery and boom.  The boom can rotate 360 degrees.  A gantry crane has no
rotating superstructure and has a hoisting mechanism in lieu of a boom.  It has a
flat bridge between two towers or supports.  A trolley runs across the bridge. 
The hoisting mechanism travels along the bridge rail rather than rotating on a turntable
like the superstructure of a tower crane.

Gantry cranes are defined by � 1910.179(a)(6) as
being "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."  The trolley moves at right angles to the crane runway.[[4/]]  The
tower cranes in use by Tampa Shipyards do not have trolleys that move at right angles to
the runway.  They have rotational movement of the boom.  The configuration and
operating characteristics of tower cranes are different from gantry cranes.  While
both types of cranes have travel characteristics along rails, tower cranes have no
trolleys and no trolley travel.  Gantry cranes are depicted in ANSI B30.2.0-1967, 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 gantry cranes set forth at � 1910.179(b).  Section 1910.179 is not
applicable to crane numbers 1 through 6.

The provisions of � 1910.180 pertain to crawler
locomotive and truck cranes, "wheel mounted cranes of both truck and self-propelled
wheel type, and any variations thereof which retain the same fundamental
characteristics."[[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 are
equipped for travel.  While the tower cranes used by Tampa Shipyards can be pushed or
pulled along a railroad track, they are not equipped with any type of powerplant for
independent travel or movement.  Their travel is limited to a path along rails laid
in a particular direction.  Each of 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 is mounted on a base or car equipped for travel on a
railroad track.  It may be self- propelled or propelled or propelled by an outside
source.  A truck crane is mounted on an automotive truck equipped with a powerplant
for travel.  A wheel mounted crane is mounted on a base or platform equipped with
axles and rubber-tired wheels for travel.   The tower crane has no such methods for
travel even though it sits on a railroad track.  Section 1910.180 is deemed
inapplicable to crane numbers 1 through 6 used by Tampa Shipyards.  They do not have
the "same fundamental characteristics" specified for cranes under �
1910.180(b).

Serious Citation

The serious citation issued on March 3, 1986, alleges
that Tampa Shipyards violated section 5(a)(1) by allowing tower cranes to be operated by
"employee(s) who were not qualified by extensive knowledge, training and
experience."  Tampa Shipyards argues that "[t]here are specific 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 tower cranes, they contain no specific provisions
concerning the qualifications for crane operators alluded to by the Secretary.[[10/]]
Since there are no specific standards applicable, the Secretary may rely on section
5(a)(1) if the facts support such determination.

The burden is on the Secretary to prove all elements
of a section 5(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 a violation, the Secretary must prove: (1) the
employer failed to render its workplace free of a hazard, (2) the hazard was recognized
either by the cited employer or generally within the employer's industry, (3) the hazard
was causing or was likely to cause death or serious physical harm, and (4) there was a
feasible means by which the employer could have eliminated or materially reduced the
hazard.  Phillips Petroleum Co. , 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
(10th Cir. 1985).

Tampa Shipyards contends that the evidence is
insufficient to sustain the allegation that the operators were not qualified.  It has
an unwritten program of on-the-job training for crane operators which was found lacking by
the Secretary (Tr. 55-57, 60-61, 163-164, 483-484, 490, 589, 591, 647).  A
considerable number of deficiencies was determined in the training program.  This
type of evidence does not establish that a particular individual is unqualified to perform
the duties of a crane operator.  One of the obvious abatement methods for unqualified
operators may be a written training program and proper supervision; however, the hazard is
still the use of unqualified operators.  It is not the lack of a proper training
program and supervision that constitutes the hazard.  There is no evidence to
indicate any particular crane operator was unqualified.  There is also no evidence
establishing how the operators as a group or individually were unqualified.

Most of the operators testifying in this case had
considerable years of experience operating a crane.  While some of them received
their training at Tampa Shipyards, others were trained through the union apprentice
program or by other employers.  Crane operator Johnnie Lee testified that he had been
a crane operator for 20 years prior to working for Tampa Shipyards (Tr. 233).  Crane
operator Charles Christie had completed five years of union apprenticeship before
commencing work at Tampa Shipyards (Tr. 730).  Each of the crane operators testifying
in this matter believed that he and the other operators were fully qualified 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 both qualified operators (Tr. 112-113, 654-655, 703-704).  There is no discrete
evidence to the contrary. Counsel for the Secretary stipulated that Caulley was qualified
(Tr. 702-703).

Burkhart testified that Tampa Shipyards needed to
develop an outline as to what has to be taught to a crane operator and a system of formal
evaluation to determine if an operator is qualified (Tr. 943).  He noticed a
deficiency in the "training of operators on some of the procedures and theories so
that all the operators are operating in the same framework" (Tr. 942-943).  Even
if there were deficiencies in the training program, the deficiencies do not per se
establish any particular operator to be unqualified.  This is especially true since
many of the operators had years of experience as crane operators with other employers or
had gone through the union apprentice program for Crane operators.  Tampa Shipyards
secured crane operators from the union hall (Tr. 480).  While Burkhart testified
concerning qualification of crane operators, he conceded that he could not identify any
unqualified crane operator at Tampa shipyards (Tr. 1019-1020).   While section
4-3.1.2, of ANSI B30.4-1973 states that "[o]perators shall be required to pass a
practical operating examination," no evidence was introduced to show that any crane
operator working for Tampa Shipyards failed to pass such an examination.

Tampa Shipyards was not cited for deficiencies in its
training program.  The issue for decision involves the qualifications of the crane
operators.   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 a lift of at least 33 tons [[11/]] at a boom angle which gave the crane a lifting
capacity of 21 tons.  Tampa Shipyards concedes that "[t]here seems to be no
question that Caulley and Morgan were wrong in making this lift at the boom angle they
selected" (Brief, pg. 20).

An eyewitness and participant in the lift, Wendell
Croft, testified to the facts surrounding the lift.  His testimony is
undisputed.  As rigger Ieaderman for the second shift, he received the turnover sheet
from the day shift Ieaderman as to what was expected to be completed that evening. 
He was told by Joe Seither, the day shift leaderman, to set the 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 was recorded on his paperwork (Tr. 106, 112, 132).  He told
William Caulley, leaderman of the crane operators, and James Morgan, [[12/]] the crane
operator, what the load weighed (Tr. 106, 112, 113, 142).  The three of them
discussed the load that evening (Tr. 106-107).   Croft assigned two riggers, Michael
Sicich and Ezekial Bains, to assist in hooking up the load and receiving it on the bow
(Tr. 107, 141-142, 145).

After discussing the lift and assigning riggers to
assist, Croft went the supervisor's office.  He returned to the crane site when they
were really 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 notify Caulley by radio if the rollers commenced to raise off the
turntable (Tr. 107, 122, 144).   Caulley lifted the load a height of approximately 6
to 18 inches and held it while Croft observed that the wheels were firmly on the turntable
(Tr. 108, 114).  The load was then lifted to a height of 10 feet above the dry dock
and held for approximately 90 seconds to make sure the crane would handle the load (Tr.
109, 114, 115).  The wheels remained on the turntable, and Caulley indicated he was
going to place the load.  He commenced swinging the load to the north and the wheels
started to rise from the tracks.   Croft told him that the wheels were coming
up.  As the load was being swung horizontally 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 commenced
investigating to ascertain the cause of the accident.  The safety director, Searle
Walton, [[14/]] testified that he arrived at the yard within a half hour of the accident
and that employees had already commenced the investigation.  The investigation
continued late into the night (Tr. 427).  Searle continued the investigation through
Saturday and Sunday (Tr. 430).   On Monday, October 7, OSHA inspectors arrived to
commence an investigation (Tr. 430).  The company investigation ceased while OSHA
personnel were conducting their inspection (Tr. 430, 435).  When the company
initiated its investigation, there was concern that the accident may have been caused by a
crane failure (Tr. 434, 435).

After a few hours of investigation, company officials
concluded that there was not a crane failure but that the accident was caused by the way
the load was lifted (Tr. 435, 542).  The boom angle and the weight of 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 but was beyond the capacity for the particular
boom angle at which the load was being lifted (Tr. 436).  Morgan and Caulley were
lifting a load thought to weigh 33 tons with a boom angle set for a safe lift of 21
tons.  When the Iift was made, Caulley, Morgan and Croft were aware that they were
lifting at least 33 tons with the crane set at a boom angle to pick up 21 tons (Tr.
108).  Croft acknowledged that the boom angle resulted in an overload of the crane
(Tr. 108).

Tampa Shipyards argues that there can be no section
5(a)(1) violation because specific standards apply to the undisputed facts. 
Reference is made 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 specifically applicable to shipyard employment but,
as previously discussed, contains no provisions applicable to the conditions cited in this
case.  Part 1918 applies to longshoring and is not applicable to the operations
conducted by Tampa Shipyards involving shipbuilding and repair. Sections 1910.179 and
1910.180, for reasons previously discussed, are inapplicable to the allegation since those
sections do not apply to tower cranes.

There is no dispute over the fact that the lift
attempted by Caulley and Morgan on October 4, 1985, exceeded the manufacturer's
recommended load capacity.  The Secretary contends that this was a recognized
hazard.  The evidence fully supports this determination.  Utilizing a crane to
hoist loads in excess of the crane manufacturer's recommendation is a hazard of common
knowledge to those who operate or are familiar with the operation of cranes. The hazard
was so recognized by officials of Tampa Shipyards and its crane operators.  The crane
operators, in general, recognized that the crane's rated load capacity should always be
observed (Tr. 51, 251, 567-570, 598, 637, 769).  Crane operator Barry Sims stated:
"It's general knowledge don't overload a crane"(Tr. 705).  The president of
Tampa Shipyards, Ralph Arselmi, recognized the hazard by personally advising the crane
operators that cranes should never be overloaded (Tr. 188-190, 263, 347, 705, 771).  
Respondent's safety director, Searle Walton, acknowledged that the boom angle and weight
lifted were not compatible with a safe lift (Tr. 436).  He would not permit someone
to make a lift that he knew was an overload; however, he also pointed out that he is not
consulted by the crane operator when a lift is being made (Tr. 558).  Burkhart
testified that the lifting of loads in excess of the rated load capacity is a hazard (Tr.
944-945) and should never be done (Tr. 853).  There was general agreement among all
witnesses that lifting loads in excess of the crane's rated load capacity presents a
hazard.  This type of workplace hazard is also recognized by section 4-3.2.1a of ANSI
B30.4-1973 and promulgated standards applicable to other types of cranes and is
specifically prohibited. [[15/]]

Two employees in the crane and an unknown number of
employees on the ground were exposed to the recognized hazard.  The evidence fully
supports the additional two elements necessary to establish a section 5(a)(1)
violation.  The overloading of a crane can cause it to overturn and result in death
or serious physical harm to employees.  This is especially true where the crane sits
on an 80-foot tower.  The safety program of Tampa Shipyards with respect to
enforcement of crane safety procedures was somewhat lax.   The safety program for
crane operators was oral (Tr. 476-477, 480).  There was no written rule regarding
overloading of cranes.  There is no evidence that training among operators was
consistent or that all necessary elements for a successful safety program were
included.  The hazard can be abated by utilizing consistent and detailed safety
instructions, better communication of those instructions to employees, better supervision
of employees and uniform enforcement.  Tampa Shipyards was deficient in all these
areas with respect to its crane operators.

Tampa Shipyards argues that it had no knowledge of
the overload condition and that the condition was not reasonably foreseeable (Brief, pgs.
20-21).   It points out that Caulley and Morgan were qualified crane operators with
many years of experience in crane operations.  Neither of them had ever been involved
in an accident.  It is further argued that there is no evidence showing Tampa
Shipyards was aware that either Caulley or Morgan had lifted a load in excess of a crane's
rated load capacity (Brief, pg. 21).  It points out that eight full-time safety
specialists are employed to search for unsafe conditions and that the safety director
would fire any supervisor who tried to make any operator hoist an overload.  The
statement by the safety director that he would be fired if be did not fire the supervisor
(Tr. 559) is hypothetical and meaningless since be concedes that he is not consulted about
lifts (Tr. 558) and that if he does not know about a situation, he does 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 crane
operators, and Wendell Croft, leaderman for the riggers, were both aware of the overlift
and, in fact, were both directly involved in making the lift.  They were both
employed by Tampa Shipyards as leadermen, and their supervisor was Elwell Rhoden, general
superintendent for Tampa Shipyards (Tr. 201-202, 1108).  Unlike other crafts, there
was no foreman between them and the general superintendent (Tr. 1108).  The argument
that Croft and Caulley were not part of management and their knowledge imputable to Tampa
Shipyards ignores reality.  If they were not part of management for supervision
purposes, then Tampa Shipyards had insufficient supervision of crane operators and
riggers.  The only person with supervision over Caulley and Croft was the general
superintendent.  In commenting on the duties of the general superintendent, counsel
for respondent stated (Tr. 71):

MR. MORAN: WelI, Your Honor, this is a mammoth
operation.   There are probably 25, maybe a hundred cranes there.  This
testimony presumes that he knows every lift made by every crane for every man on every day
of the operation.   This man is the general superintendent.  He is not
involved in the operations.   He sits in an office.   (Underlining added)

The duties of the general superintendent are too
large to allow him to do any significant direct supervision of crane operators and
riggers.

The evidence is clear that crane operators and rigger
leadermen were part of the supervision team of Tampa Shipyard.  Sections 1 and 2 of
Article 7 of the agreement between Tampa Shipyards and the Tampa Metal Trades Council,
which represents several different unions with workers employed at Tampa Shipyards, makes
the following statement concerning leadermen (Ex. 3):

SECTION 1.-- Leadermen are the first line of
supervision and are responsible to higher supervision for the progress and execution
of the work.   Leadermen do not have the right to hire or discharge employees under
their jurisdiction, but may make recommendations to higher supervision concerning
disciplinary actions and promotions of employees.  It is further agreed that no
interference will be exercised by any Unions or their officials with respect to the
supervisory functions of any leaderman.  It is recognized by the Company that
leadermen are bargaining unit employees covered [sic] by the terms and conditions of this
agreement. (Emphasis added)

SECTION 2.-- It is the intent of management that an
employee will normally have only one direct craft leaderman at a time from whom he shall
take direction and be responsible, and with whom he will initially raise requests,
complaints, or questions concerning his work .  However, this does not excuse an
employee from taking directions from any supervisor in cases of emergency or compelling
production situations.  In such situations, the workmen's leaderman will be
immediately notified. (Emphasis added)

Searle Walton, safety manager for Tampa Shipyards,
testified that the company generally followed Section 2 of Article 7 (Tr. 575-576).  
Respondent's director of Iabor relations, George Turner, testified that the foreman over
the crane operator leadermen and rigger leaderman had not been replaced and that the
leadermen in those two crafts take supervision 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 the bargaining unit
and include them as part of management (Tr. 1106-1107, 1109).  Removing them from the
bargaining unit would give them authority to answer grievances, to adjust grievances and
to effect discipline directly (Tr. 1110).  They do not presently have such authority.

General superintendent Rhoden testified that the
leaderman is in charge of the lift that has been assigned to him.  The day leaderman
turns over the orders to lift to the night leaderman (Tr. 35, 42).  A leaderman has
between 5 and 14 employees under his supervision (Tr. 104-105).  Crane operators
Screws, Tucker, Sims and Heisserer testified that the leaderman was the immediate
supervisor who told them what to do (Tr. 177, 199, 201, 206, 602, 713, 746-747).  The
leaderman is the person who goes to the next line of supervision, which in the case of
crane operators and riggers was the general superintendent (Tr. 1152).  The crane
operator and rigger leadermen were the immediate supervisors of members of their
group.  Where leadermen have exercised substantial authority over the work being
performed, they have been deemed to be supervisory employees.  Todd Shipyards
Corporation , 84 OSAHRC 39/A2, 11 BNA OSHC 2177, 1984 CCH OSHD � 27,001 (No. 77-1598,
1984), appeal dismissed in unpublished opinion (9th Cir. 1985, No. 84-7643). 
In view of their particular responsibilities, Caulley and Croft are held to be supervisors
and their knowledge attributable to Tampa Shipyards.

The facts are undisputed that Caulley, Morgan and
Croft were all aware that the lift involved at least 33 tons and that the boom angle was
set for a lift of 21 tons. In order to prevail on the defense that the violation resulted
from employee conduct which was not reasonably foreseeable, Tampa Shipyards must show that
it "has established workrules designed to prevent the violation, has adequately
communicated workrules to its employees, has taken steps to discover violations of the
rules, and has effectively enforced the rules in the event of infractions."   Jones
& Laughlin Steel Corp. , 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1782, 1982 CCH OSHD �
26,128 (No. 76-2636, 1982).

The employee handbook (Ex. 13) utilized by Tampa
Shipyards contains a small section on crane safety.  It does not contain a workrule
to prevent the violation in issue.  No evidence was introduced by Tampa Shipyards to
show that it had a written rule prohibiting the use of a crane in making an overlift.
There was adequate evidence to show that such a rule existed and had been orally
communicated to most crane operators who testified.  In any event, the crane
operators recognized such a rule as a matter of common sense.  Since there is no
requirement that the rule must be written, the first element has been established.

There has been an inadequate showing that Tampa
Shipyards took reasonable steps to enforce the rule.  The fact that it had eight
full-time safety specialists does not reveal its enforcement procedure.  There is no
evidence as to how the rule was reinforced upon the minds of the crane operators or how
violations were detected.  Walton acknowledged that his department was not consulted
on lifts (Tr. 558-559).  He had no way of determining whether the lifts were being
properly made until a mishap occurred.   The only realistic enforcement of the rule
had to be through supervisors who were familiar with the lifts being undertaken. 
While Caulley and Croft were acting in a supervisory capacity, there is no evidence of
steps taken to enforce the rule against overlifts.  The record contains several
instances of previous overlifts.[[16/]] Most of the overlifts occurred because of a lack
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 Tampa Shipyards for the purpose of providing employer knowledge of the
violations unless it "establishes that it took all necessary precautions to prevent
the violation[s], including adequate instruction and supervision of the two
leadermen.  Daniel Construction Company , 82 OSAHRC 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 the misconduct is strong evidence that Tampa Shipyards was
lax.  Daniel Construction Company , supra ; United Geophysical Corp., 81
OSAHRC 77/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 violation the proof of unpreventable employee
misconduct is more rigorous and the defense is more difficult to establish since it is the
supervisor's duty to protect the safety of employees under his supervision."   Daniel
Construction Company , supra , 10 BNA OSHC at 1552, 1982 CCH OSHD at p.
32,672.  See also Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1,
6 BNA OSHC 1675, 1978 CCH OSHD � 22,805 (No. 3069, 1978).  Tampa Shipyards has
failed to establish that Croft and Caulley were adequately trained or supervised with
regard to safety matters.  In addition, instances of previous overloads are too
numerous to conclude that safety procedures were effectively enforced to prevent overloads
from occurring at the workplace.

While Walton testified that Tampa Shipyards had an
oral safety policy for crane employees, the extent of this policy is unknown.  There
were obvious problems concerning procedures used in determining the weight of objects
being lifted.   There is considerable evidence concerning overlifts which resulted
from ignorance as to the weight of the object to be lifted.  Crane operator Hansen
testified that the weight of the load was usually furnished to the crane operators by the
department for whom they were making the lift (Tr. 592).  Crane operator Lee
testified that the rigger informs the operator as to the weight of the load (Tr.
251).  Any well developed policy for preventing crane overlifts has to include
procedures for accurately determining weights of the objects to be lifted. Tampa Shipyards
has not shown that it had a clearly defined policy in this regard, and there is no
evidence that such a policy was enforced if it did exist.  Advising crane operators
not to make overload lifts is a useless gesture if action is not undertaken to insure they
have 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 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."  Asbestos Textile Company,
Inc. , 84 OSAHRC 48/B12, 12 BNA OSHC 1062, 1063, 1984 CCH OSHD � 24,763 (No.
79-3831, 1984).  Caulley and Morgan were aware that the boom angle of the crane was
set to make a safe lift of 21 tons.  They were told the 0-1 section weighed 33
tons.  In spite of these facts, they commenced to lift and swing the load in total
disregard of the manufacturer's rated load capacity.   They knowingly tried to swing
and place the load.  A willful violation has been established.

Penalty Determination

A penalty must be determined for the violation. 
Pursuant to section 17(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 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).   Caulley, Croft and Morgan had
knowledge that the piece to be lifted weighed at least 33 tons.  They knew the rated
load capacity of the crane at its boom angle at the time of the lift was 21 tons. 
They chose to ignore the facts.  The gravity is considered severe.  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 at other times, the weight of loads was not determined and the
operators were not notified of the weight prior to hoisting.  The description of the
alleged violation raises two specific acts of omission: (1) the weight of loads was not
determined, and (2) the operator was not notified of the weights prior to hoisting. 
Tampa Shipyards argues that the same standards it referenced as applicable to item one are
also applicable to item two.   According to Tampa Shipyards, the "cited
condition is virtually indistinguishable from item 1 of this citation" (Brief. pg.
32).

Rhoden testified that Tampa Shipyards had a policy of
determining the weight of loads before they made a lift (Tr. 47).  According to him,
the weight 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 the dynamometer on it, and that's the leaderman of that particular
department who puts the dynamometer on it with the operators and the other riggers with
him and determines the weight.

The number three crane has a load indicator, but it
was not operational at 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 prove that the weight of the 0-1 section was not determined or that the
operator was not notified of the weight prior to hoisting (Brief, pg. 33).  In view
of the discrepancies in the weight the operators were told and the actual weight of the
0-1 section, it is clear that such an argument must be rejected.  While Croft
testified that his paperwork showed the 0-1 section weighed 33 tons, there is no evidence
as to how that figure was determined. The same section had been lifted by crane number 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 rigger that the section weighed 30 tons (Tr.
733-734).   He did not weigh the section (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 the weight of the 0-1 section was supposedly determined or even if it had been
determined prior to the accident.  The weight of the section was determined after the
accident to be 38.099 tons (Tr. 1132).

Burkhart testified that the failure to determine the
weight of loads before lifting them could constitute a hazard (Tr. 945).  This is
particularly true on heavy loads that have the potential to exceed the crane's rated load
capacity for a particular boom angle.  Failure to accurately determine the weight of
a load can lead to overlifts.  While Rhoden stated Tampa Shipyards had a policy of
determining the weight of loads being lifted, the extent of that policy is unknown.

Tampa Shipyards had no written procedures for
determining the weight of loads to be lifted by cranes.  If the oral policy was
communicated to employees, it was not very well followed.  There is no evidence as to
how the policy was orally communicated to all employees or what attempts were made to
enforce it. The evidence discloses numerous instances where lifts were made when the crane
operator did not know the weight of the load 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 determine the weight of the load, is indistinguishable from item one concerning
the allegation that the rated load capacity of the cranes was exceeded.  There is
merit to this argument.  The hazard presented to employees for failing 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 the rated load capacity of the crane. The weight of the
load must be known if an overload is to be avoided. The objective of weighing a load is to
avoid an overload. Determining the weight of the object to be lifted is one of the
procedures necessary in the abatement process of preventing overloads. It is part of the
information essential to preventing overloads and cannot be cited as a separate violation.
The alleged violation is vacated.

Item Three

Item three alleges that "[o]n or about October
4, 1985, and at other times, operation of tower crane(s) were permitted with known
hazardous defects in numerous functional operating mechanisms, control systems, and
clutches."  Tampa Shipyards submits that the "cited conditions are
regulated 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).  As previously pointed out, � 1910.179 and �
1910.180 are inapplicable to tower cranes.   Those provisions of Part 1915 referred
to by Tampa Shipyards are not applicable to the conditions alleged in the citation.

Several operators testified that they used a piece of
wood behind the crane friction levers to prevent them from disengaging. [[18/]]  This
applied only to cranes 4, 5 and 6 (Tr. 628).  Crane operator Sims testified that
while he used a piece of wood, he did not think there was anything wrong with the lever.
  He testified that some of the operators used the piece of wood and some did not use
it.  He thought it was safer to use the piece of wood (Tr. 679-680, 708-709).  
He has not used a piece of wood since October 4, 1985 (Tr. 680).  Crane operator Don
Heisserer testified that he did not use the piece of wood but acknowledged that some
operators used it (Tr. 744-745).  Burkhart testified that the use of the piece of
wood indicated that the normal locking 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 easily
disengaged (Tr. 679).  Burkhart testified that the levers "are designed to 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 the cranes had defective friction levers during the time period relevant
to this proceeding. Hansen testified that he had trouble in 1980, 1981 and 1982 (Tr. 607).
  He testified that he reported the problems with the different 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 not state that he had any trouble with the friction lever
disengaging (Tr. 735).  Sims testified that he used a piece of wood but did not state
when or if he had trouble with the friction lever (Tr. 674).  Christie testified that
he used a piece of wood but did not state when or if he had trouble with the friction
lever (Tr. 725-729).  It appears the piece of wood was being used by some operators
as a precaution against a problem they believe had existed in the past.  Charles
Dowless, the plant manager, testified that if the friction lever jumped out while the
crane was traveling, it would be of particular concern to the crane operator (Tr. 1134).
  He had no knowledge of seeing such a condition reported for repair (Tr. 1135).
  Burkhart's assumption that the friction lever was defective because a piece of wood
was used was based on a practice that evolved from past difficulties with the friction
lever.  The preponderance of the evidence does not support the allegation the
friction levers were defective at the time of the inspection.  There is also
insufficient evidence to conclude that management officials were aware that the piece of
wood was being used by the crane operators.

Evidence was presented with respect to defective
limit switches and an emergency shutoff switch.  No evidence of the specific nature
of the alleged limit switch problem or how long it existed was presented.  Hansen
testified that he had problems with limit switches on cranes 4, 5 and 6 and that they were
fixed (Tr. 632).   He had a problem on crane number 1 that was not fixed, but the
crane was removed from service in 1984 (Tr. 633).  The problem occurred in 1980 and
1981 (Tr. 633).   He stated that he had problems with the emergency shutoff switches
on cranes 4 and 5 (Tr. 634).  A switch was placed on crane number 4, and he was not
aware if the switch had been fixed on crane number 5 (Tr. 634-636).  He believed
there was no emergency shutoff switch on crane number 5 in October, 1985 (Tr. 603). 
There was no evidence that anyone of authority for Tampa Shipyards was aware of the
defects or that they were not fixed once they were reported.

The Secretary includes the fact that the load
indicator in crane number 3 was inoperable for a period of time in late September and
October, 1985, as a defect.  However, his own expert, Matthew Burkhart, made it clear
that the fact that the load indicator was not operable was not a hazard to the operation
of the crane (Tr. 946-947).  The crane operator can compensate for the inoperable
load indicator by having the weight of loads determined by other means (Tr. 946).  No
evidence was presented which showed any risk to the mechanical operation of the crane
resulting from the claimed defect.  No evidence was presented that load indicators
were required on cranes.

The other alleged defects are reflected on craft
turnover forms entered into evidence as Exhibit 14.  The forms cover the period from
September 3, 1985, to October 4, 1985 (Tr. 466).  These forms were turned over by the
first shift leaderman to the second shift leaderman.  The first shift recorded on the
form what they wanted the second shift to do (Tr. 465, 1144).  The forms indicate
that maintenance items were recorded by the second shift.  A copy was sent to the
maintenance department to indicate the need for repair (Tr. 1144).  The Secretary
points to several of these items and charges that the cranes were operated with known
defects.  While the forms indicate some need for repairs, there is no evidence that
the cranes were operated under unsafe conditions. There is no evidence that the repairs
were not made within a short or reasonable period of time.  All the forms show is
that at a particular period of time maintenance was needed.  There is no evidence to
indicate what was done once the item was noted on the form.  The listing of a problem
on the form does not per se prove that the crane was operated with such a defect.  
The allegations were based on Burkhart's opinion as to what he thought was meant by the
entries on the craft turnover sheets.  Burkhart assumed hazards existed as a result
of the entries on the sheets (Tr. 1023).  He had no knowledge that the cranes were
operated with hazardous defects.

A company that operates as many cranes as Tampa
Shipyards will certainly experience a number of maintenance problems over a period of
time.  Simply because a limit switch, emergency shutoff switch or other mechanical
items become broken or inoperative does not establish a violation.  There is no
evidence that any item reported was not eventually repaired once it was reported. 
There is also no evidence that Tampa Shipyards required its crane operators to operate
cranes with hazardous conditions or that the cranes in issue were operated with hazardous
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 something that 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 other times, tower crane(s) were operated without conducting frequent and
complete periodic inspections to insure safe operations."  Tampa Shipyards
argues that "[t]here are a number of OSHA standards regulating the 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 of item three and is
multiplicious.  Sections 1910.179 and 1910.180 and Part 1915 are inapplicable for the
reasons previously stated.

The Secretary argues that Tampa Shipyards lacks an
effective inspection schedule for daily, weekly, monthly and quarterly inspections. 
He submits that there is no policy as to who is in charge of conducting inspections and
that this results at times in inspections being made by "whoever is available."
   He states that "[W]hile some operators conduct 'inspections' of their
own, there are no guidelines as to what to inspect or when to inspect" (Brief, pg.
8).

Frequent and periodic inspections for tower cranes
are required by section 4-2.1 of ANSI B30.4-1973, Portal, Tower and Pillar Cranes . 
Crane standards, particularly �� 1910.179 and 1910.180, generally require frequent and
periodic inspections.  Frequent inspections are required to be made from daily to
monthly intervals, while periodic inspections must be made from 1 to 12-month
intervals.[[19]]  Interval of 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, the preponderance of the evidence
supports the determination that Tampa Shipyards 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 were inspected, testified that he had a crane report that is filled out once a
month (Tr. 169).  According to him, the operators are supposed to fill out the
reports but that sometimes the leaderman fill them out (Tr. 169).  Daily checks are
made by operators (Tr. 169, 191, 727).  Crane operator Johnnie Lee testified he was
not aware of crane inspections but that the maintenance people might have conducted
inspections (Tr. 234).   Crane operator Charles Christie testified that he did not
know who checked the cranes but that he checked his crane daily before he commenced his
shift (Tr. 727).   While the crane operators appeared to know little about
inspections performed by others, there was no evidence that any of them neglected to do
their own inspection on a daily or frequent basis.

Rhoden testified that Tampa Shipyards has a
maintenance program that includes crane inspections (Tr. 62-63).  The plant engineer,
Charles Dowless, testified that crane inspections are performed once a month (Tr. 1126).
No one person performs the inspections.  Inspections are performed by the maintenance
foreman, assistant supervisor, or whoever is available (Tr. 1126).  Copies of the
monthly forms used were placed into evidence as Exhibits 22 and C. They show inspections
of listed items (checklist) for cranes that were conducted for a specific month.  The
form contains the heading:

TAMPA SHIPYARDS INCORPORATED

MAINTENANCE DEPARTMENT

MONTHLY CRANE CONDITION INSPECTION

The inspection forms show that some of the
inspections were performed by a crane operator leaderman (Ex. 22; Tr. 1140).  Dowless
further testified that the cranes were serviced at least once a month and more often if
the frequency of operation so requires (Tr. 1142-1143).  The cranes are usually also
looked over during the servicing (Tr. 1142).

The allegation pertains to the failure to conduct
frequent and complete periodic inspections.  The record shows that periodic
inspections were made by some individual on a monthly basis.  While the individual
making the inspections may have varied from month to month, the Secretary did not offer
evidence to indicate that any particular crane was not inspected.  There is no
support in law for the position that one particular individual must do the
inspection.  The Secretary further failed to show that the monthly inspection form,
which contains a list of several items to be inspected, was deficient in any manner.

The Secretary acknowledges that "[T]here is
evidence that some operators made inspections of the cranes which they operated"
(Brief, pg. 18).    In an equally true manner, it can be stated that the
evidence fails to show any operator that did not make a daily inspection of his
crane.  The argument is made that there were no guidelines by which these inspections
were conducted.  Burkhart testified that he saw no daily inspection checklists (Tr.
939) and that, in his opinion, written checklists were needed (Tr.
1014-1015).[[20/]]  No evidence was offered to indicate what items should be included
on a written checklist or that the operators failed to check any of the items that might
be included on such a checklist.

Tampa Shipyards lacks a cohesive and detailed policy
of conducting inspections.   However, it is charged with not "conducting
frequent and complete periodic inspections."  While inspection procedures may
have been slipshod, frequent and periodic inspections were made by employees of Tampa
Shipyards. No evidence was introduced to reflect that those inspections were incomplete or
deficient in any manner.  The alleged violation is vacated.

Docket No. 86-0469

On January 29, 1986, employees of Tampa Shipyards
were welding in a room approximately 30 feet by 45 feet on the deck level of the vessel Robert
G. Matthiesen .  The welding took place in the "fan" room where the
ship's air conditioning was located (Tr. 1087).  During the welding operations, a
fire and explosion occurred that resulted in three persons being burned.  At the time
of the explosion, six employees of Tampa Shipyards were in the room.  An employee of
a subcontractor was also in the room.   An investigation of the accident by
Compliance Officer Fred Carpenter disclosed that a can of paint thinner in the room had
been ignited when a welder's rod touched it while the welder was crawling around in the
room.

The citation issued on March 14, 1986, as a result of
the fire and explosion, cited alleged violations of three standards.  During the
hearing, the Secretary withdrew item two of the citation (Tr. 1068-1069).  Items one
and three remain in issue. Item one alleges a violation of 29 C.F.R. � 1910.106
(e)(2)(iv)(d) because "paint thinner was drawn from or poured from the original
containers."   Item three alleges a violation of 29 C.F.R. � 1915.52(b)(2) for
failure to have a suitable fire extinguishing equipment available in work areas where
weIding, cutting or heating operations were being performed.

Item One

Tampa Shipyards argues that the Secretary failed to
establish noncompliance with 29 C.F. R. � 1910.106(e)(2)(iv)(d).[[21/]]  It submits
the standard "regulates only a specified activity: the manner, or method, by which
certain liquids may be 'drawn from' or 'transferred into' containers" (Brief, pg.
82).  There is no evidence that the paint thinner had been drawn from or transferred
into the particular can found in the room.  The testimony of Compliance Officer
Carpenter indicates that the can of paint thinner was cited for a violation because it was
not 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 the
contents were flammable. The can was sitting in the room.  There is no evidence to
indicate that Tampa Shipyards had transferred the paint thinner into the can.  The
thinner was probably in the same can in which it was purchased by Tampa Shipyards. 
The can was similar to that in which 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 makes the assumption that the standard is applicable.  Why the Secretary
believes the standard is applicable to the facts of this case is unknown.  As pointed
out by respondent, the "standard is specifically limited in scope and application to
those portion [ sic ] of an 'industrial plant' where the use and handling of
flammable or combustible liquids is only incidental to the plant's principal
business" (Brief, pg. 83).  The alleged violation occurred on a ship.

In order to prove a violation of a standard, the
Secretary must show that the cited standard applies to the cited condition.  Clement
Food Company , 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 the standard is applicable to
the facts.  The alleged violation is vacated.

Even if the standard was applicable, the Secretary
has failed to establish that respondent had actual or constructive knowledge of the
condition.  Compliance Officer Carpenter testified that he did not know who put the
paint thinner can in the room, that there was no reason for it 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 was not 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 very great"
(Tr. 1077).  He further stated (Tr. 1090):

As I said, nobody knew before the explosion that it
was there.  It was only 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
immediate vicinity of the fire. The standard requires suitable fire extinguishing
equipment be available in the work area and maintained in a state of readiness for instant
use.

Compliance Officer Carpenter arrived at the jobsite
on January 30, the day following the accident. He went to the room where the fire had
occurred.   There were fire extinguishers in the room when he arrived at
the site (Tr. 1077).   His investigation disclosed that there was no fire
extinguisher in the room at the time the fire commenced (Tr. 1078-1079).  Two fire
extinguishers were located over 25 feet from the room.  The fire extinguishers were
not in sight but were located behind closed doors.  The employees had no indication
of where they were located (Tr. 1079). One of the fire extinguishers was located inside of
the stairs on the next deck; the second extinguisher was on the same deck inside a door
that led to the engine room (Tr. 1079). At the time of 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 day
in order to paint the deck (Tr. 1079, 1089).  The nearest hose was on the other side
of the ship. It was not hooked up (Tr. 1079-1080).

The standard requires that suitable fire
extinguishing equipment be available in the work area "in a state of readiness for
instant use."  The standard makes reference to "suitable fire extinguishing
equipment."  While the standard does not state what precise equipment is
required for firefighting purposes, it is clear that some fire extinguishing equipment is
required.  Since there was no fire extinguishing equipment located in the work area,
it is unnecessary to define or interpret what is suitable fire extinguishing equipment.

Tampa Shipyards argues that the evidence does not
include any clarification of what was meant by the terms "immediate vicinity" or
"instant use."  The standard does not use the words "immediate
vicinity."  The equipment is required to be immediately available in the work
area.  The work area is construed to be the room in which the welding operation was
being performed.  The fire extinguishers were located at least 25 feet from the room
in which the work was being performed.  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
section 17(k) of the Act, a serious violation exists where there is a substantial
probability that death or serious physical harm could result from the condition and the
employer has knowledge of the condition, or could have discovered the violation with the
exercise of reasonable diligence.  The Secretary need not prove that an accident is
probable; it is sufficient if an accident is possible and its probable result would be
serious injury or death.  Brown & Root, Inc., Power Plant Division , 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 BNA OSHC 1447, 1979 CCH OSHD � 23,670 (No.
76-2414, 1979).

The Secretary must further prove that the employer
knew or with the exercise of reasonable diligence should have known of the existence of
the violation. The knowledge element is directed to the physical conditions which
constitute a violation of section 5 of the Act.   Southwestern Acoustics and
Specialty, Inc., 77 OSAHRC 25/E7, 5 BNA OSHC 1091, 1977-78 CCH OSHD � 21,582 (No.
12174, 1977).  It is difficult for an employer to prevail on the defense that he had
no knowledge of the violation since he has an obligation to inspect the work area, to
anticipate hazards to which employees may be exposed, and to take measures to prevent
their occurrence.  Frank Swidzinski Co., 81 OSAHRC 4/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 Shipyards inspected for suitable fire extinguishing equipment in the room prior to
commencing work, it would have discovered its noncompliance with the standard.  It
should also have known that the fire hoses in the area had been removed the previous day
in order to paint the deck.  Since suitable fire equipment was unavailable, employees
had to use insulating material to smother the flames.   The violation was serious
since a fire in 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) since it has been classified as a serious 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).

Tampa Shipyards exposed six of its employees and an
employee of a subcontractor to welding operations in a room approximately 30 feet by 45
feet without providing for suitable fire extinguishing equipment.  Employees had been
working in the room for several hours prior to the explosion and fire (Tr. 1081). At the
time of the fire, Tampa Shipyards employed in excess of 800 employees (Tr. 1082).  A
penalty of $800 is assessed for the violation.

FINDINGS OF FACT

1.  Respondent is a corporation engaged in
shipbuilding and repair at a place 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).  The crane fell during a lift of an 0-1 section at a boom angle with a rated
load capacity of 21 tons (Tr. 108, 113, 143).

3.  The crane sat on a turntable on top of an
80-foot tower. Rollers underneath the cab rotated on the turntable to allow the crane to
pivot.  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 of the accident on October 7, 1985 (Tr. 430, 530).

5.  After the accident, the 0-1 section wreckage
was cut into three pieces and weighed by Charles Dowless, plant engineer.  The
combined weight 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 weigh 33 tons (Tr.
106).

6.  James Morgan was the operator of crane
number 6 at the time of the lift.   William Caulley was the leaderman for crane
operators.  He was in 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 rigger
leaderman, that the 0-1 section weighed 33 tons (Tr. 106-107).

7.  Caulley usually went up in the crane with
the operator when a heavy or maximum lift was to be made (Tr. 118, 656, 661-662,
666-667).  There was concern over the weight of the load to be lifted (Tr. 108).

8.  Caulley, Morgan and Croft were all aware
that the lift involved at least 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 the amount of weight being lifted were not compatible for a safe lift
(Tr. 435, 436, 532).

10.  Crane operator leadermen and rigger
leadermen perform supervisory duties at Tampa Shipyards.  There is no foremen between
them and the general superintendent (Ex. 3; Tr. 201-202, 1108).  They are assigned
between 5 and 14 employees under their supervision and are the immediate supervisor 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 at various boom angles (Tr. 854).  The operator makes the
decision as to what 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 to set 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 he considers 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 40 tons 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 boom angle and the weight (Tr. 53).

16.  An overload occurs when the load is more
than the boom angle indicates as being the maximum safe load at that angle (Tr. 53).

17.  One of the job responsibilities of the
rigger leaderman is to calculate the weight to be lifted by the crane (Tr. 135,
316).  The crane operator is told the weight (Tr. 135, 249-250).  Riggers have
in the past been misinformed as to the accurate weight (Tr. 252).

18.  The president of Tampa Shipyards informed
crane operators that he did not want the cranes overloaded (Tr. 188-190, 263, 347, 705,
770-771).  He further informed them that if anyone ordered them to make an 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 three years 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).  The general
superintendent, leaderman and operators determine when an oiler is ready to become an
operator (Tr. 57).

20.  There have been overlifts made on previous
occasions by employees of Tampa Shipyards.  Most of the overlifts occurred because of
a lack of determining 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 and periodic 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 pertaining to cranes 1 through 6 under 29 C.F.R. � 1910.179 (Tr. 891-898).

24.  On January 30, 1986, Compliance Officer
Fred G. Carpenter conducted an investigation of a fire occurring on the premises of Tampa
Shipyards on 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 and exploded when a welder's rod touched the can when he was crawling around in
the space (Ex. 19, 20; Tr. 1071-1073, 1085).  The paint thinner had a flash point of
73 degrees (Tr. 1073).

26.  At the time of the fire and explosion, six
employees of Tampa Shipyards were in the room.  An employee of a subcontractor was
also in the room (Tr. 1077, 1080).   They had been working in the room for several
hours prior to the fire (Tr. 1081).

27.  The employee of the subcontractor and two
employees of Tampa Shipyards were seriously burned (Tr. 1077).

28.  Two fire extinguishers were located
approximately 25 feet from the room but were behind closed doors.  One fire
extinguisher was located on the next deck inside the stairs.  The second fire
extinguisher was on the same deck as the work area but inside a door that led to the
engine room (Tr. 1079).

29.  At the time of the fire, employees were
unable to locate the fire extinguishers (Tr. 1080).  They used insulating material to
smother the flames on the employees (Tr. 1080).

30.  The fire hoses had been removed from the
vicinity of the work area in order to paint the deck and were not hooked up at the time of
the fire.  The nearest hose was on the other side of the ship.  It was not
connected to a water source (Tr. 1079-1080, 1088-1089, 1094).

31.  The label on the can of paint thinner
indicated the contents were flammable (Tr. 1074).

32.  The can which the thinner was found was not
a safety can.  It was a single-layered can (Tr. 1075).

33.  The white metal can which contained the
paint thinner looked similar to three cans of mastic that were in the room.  It was
difficult to notice the differences between the cans (Tr. 1076-1077).

34.  At the time of the fire and explosion,
employees were not aware that the can contained paint thinner (Tr. 1088).  Employees
had observed the 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 that would require the use of paint thinner (Tr. 1088).  There
was no known reason 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, was engaged in a business within the meaning of section 3(5) of the Act.

2.  Tampa Shipyards, at all times material to
this proceeding, was subject to the requirements of the Act and the standards promulgated
thereunder.  The Commission has jurisdiction of the parties and of the subject
matter.

3.  Cranes 1 through 6 are tower cranes. 
There are no standards applicable to tower cranes which regulate the specific type of
conduct for which Tampa Shipyards was cited.

4.  The secretary has failed to meet his burden
of proof in establishing a violation of section 5(a)(1) for allegedly allowing unqualified
crane operators to operate tower cranes located in the shipyard.  The alleged
violation and proposed penalty are vacated.

5.  Tampa Shipyards was in violation of section
5(a)(1) for lifting loads with tower cranes in excess of the crane manufacturer's
recommended 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 failing to determine the weight of loads prior to hoisting.  The
need to determine the weight of a load is part of the procedure essential to avoiding
overloads.  The alleged violation and proposed penalty are vacated.

7.  The Secretary has failed to meet his burden
of proof in establishing a violation of section 5(a)(1) for allegedly allowing tower
cranes to be operated with known hazardous defects.  The alleged violation and
proposed penalty are vacated.

8.  Tampa Shipyards was not in violation of
section 5(a)(1) for allegedly allowing tower cranes to be operated without conducting
frequent and complete periodic inspections to ensure safe operation.  Frequent and
periodic inspections were made by employees of Tampa Shipyards.  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 in
establishing the applicability of � 1910.106(e)(2)(iv)(d).  The proposed penalty is
vacated.

10.  Tampa Shipyards was in violation of 29
C.F.R � 1915.52 (b)(2) for failure to have fire extinguishing equipment available in a
work area where welding was being performed.  The violation was serious.  A
penalty of $800 is assessed for the violation.

ORDER

Based upon the foregoing findings of fact and
conclusions of law, it is

ORDERED:

(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 to Tampa Shipyards on March 3, 1986, and the penalties proposed for the
alleged violations are vacated;

(3) That item 1 of the willful citation issued to
Tampa Shipyards on March 3, 1986, is affirmed and a penalty of $8,000 assessed for the
violation;

(4) That items one and two of the serious citation
issued to Tampa Shipyards on March 14, 1986, and the penalties proposed for the alleged
violations are vacated; and

(5) That item three of the serious citation issued to
Tampa Shipyards on March 14, 1986, and the penalty proposed for the violation are
affirmed.

JAMES D. BURROUGHS

Judge

FOOTNOTES:

[[1]] That section provides:

Each employer.... shall furnish to each of his
employees employment and a place of employment which are free from recognized hazards that
are causing or are likely to cause death or serious physical harm to his employees.

[[2]] The crane involved in the accident is one of
six tower cranes at this location.   A tower crane consists of a rotating
superstructure, made up of operating machinery, cab and boom, that rests on a circular
track atop a tower that sits on rails.   The tower of crane no. 6 was 80 feet high.

[[3]] The only alleged violation on review is the
hoisting of the load that led to the accident on October 4, 1995.  The judge struck
from the record evidence of overlifts that occurred after that date.  The alleged
overlifts that occurred before that date, which are discussed below, am relevant to
whether Tampa had the requisite knowledge of the violative conditions on October 4, 1985,
and whether the alleged violation willful.

[[4]] The direction for review specified only these
issues, all of which involve only Docket No. 86-0360.  Despite this limitation,
Tampa's briefs on review address a number of other issues that it raised in its petition
for review but that are not within the scope of the direction for review, including
arguments involving Docket No. 86-0469.   In her brief, the Secretary stated that she
would not address these issues because they were not "fairly within the direction for
review."

In its reply brief, Tampa argues that the Commission
must address all material issues presented on the record, regardless of whether they fall
within the scope of the direction for review.  The Commission does have jurisdiction
over all the items and issues in a case that it directs for review.  Hamilton Die
Cast, Inc., 12 BNA OSHC 1797, 1800, 1986-87 CCH OSHD � 27,576, p. 35,822 (No. 83-308,
1986).  However, the Commission also has discretion to limit the scope of its
review.  E.g., Bay State Refining 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
Commission does 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 have sufficient support to merit
review are those directed for review.   Accordingly, we do not address the arguments
by Tampa that are outside the scope of the direction for review.  Because no issue
involving Docket No. 86-469 is within the scope of the direction for review, that case is
now a final order of the Commission.

[[5]] Crane operator Ashmore testified that a safety
book for crane operators was kept on crane no. 3.  However, the record indicates that
the book was not required reading, and was not a regular part of any safety program for
Tampa's crane operators.   Further, crane no. 3, to which that book related, was
manufactured by a different manufacturer than the other crane at issue here. 
Moreover, there was no testimony as to the contents of the safety book, or whether it
covered all the safety precautions necessary to prevent the kind of overlifts that
occurred on Tampa's worksite.

[[6]] Tampa asserts that it "has eight full-time
safety specialists...who search for conditions that may be unsafe[.]"  However,
that figure included paramedics and first aid personnel.  The evidence indicates that
none of its safety personnel took the initiative to inspect cranes unless a safety problem
was reported to them.  For example, crane operator Christie testified that
"[t]hey report what I report to them, sir.  That's all I've seen done."

[[7]] Rhoden testified that when an operator told him
that a near-capacity lift would be attempted, he consulted with the operator about the
load and even "had the president of the company out there," and that be never
knowingly overloaded a crane.   However, such consultations did not constitute a
monitoring system.  In a satisfactory monitoring system, Tampa's superintendents
would make active attempts to detect hazardous lifts that had not been brought to their
attention by operators in advance.

[[8]] As Tampa notes, Burkart acknowledged that he
could not state how many supervisors and how much monitoring would be required at its
worksite without knowing the number of employees Tampa bad there, and the number and
timing of lifts that it made.  He did not have that information.  However, be
testified that Tampa would be able to determine how many supervisors and how much
monitoring would be required, because it had the necessary information.

[[9]] Tampa argues that the Secretary submitted
evidence, an this and other issues, that varied from her counsel's responses to its
pre-hearing interrogatories.  It seems to argue that, as a result, the Commission
should rely on those answers to interrogatories and not on the sworn evidence submitted at
the bearing.  However, Tampa does not cite any objections it made to the introduction
of the evidence.  The proper time to object to the introduction of evidence, on the
ground that it is inconsistent with answers to interrogatories, is at the hearing. 
Power Fuels, Inc., 14 BNA OSHC 2209, 2214, 1991 CCH OSHD � 29,304, p. 39,347 (No. 85-166,
1991), and cases cited therein.  Even where answers to interrogatories are stipulated
into evidence, as here, they generally have no binding effect if they are contradicted by
other evidence introduced at the hearing.  Id.  The mere fact that certain
evidence submitted by the Secretary at the hearing varied from her answers to
interrogatories is no basis for failing to consider the evidence, 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 are responsible to higher supervision for the progress and execution of
the work.   Leadermen do not have the right to hire or discharge employees under
their jurisdiction, but may make recommendations to higher supervision concerning
disciplinary actions and promotions of employees.  It is further agreed that no
interference will be exercised by any Unions or their officials with respect to the
supervisory functions of any leaderman.  It is recognized by the Company that
leadermen are bargaining unit employees covered by the terms and conditions of this
agreement.

SECTION 2. - It is the intent of management that an
employee will normally have only one direct craft leaderman at a time from whom he shall
take direction and be responsible, and with whom he will initially raise requests,
complaints, or questions concerning his work.

[[11]] Tampa's assertion that Sims did not know
whether "anyone in the company" knew about the overlifts is incorrect. 
Sims specifically testified 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 be operated safely with the rollers off the turntable:

When that roller comes off that turntable, it's right
under that counterweight, and you have lost the ability of the counterweight more or less.
  When that roller comes off there, your counterweight is already off set.

[[14]] There was hearsay testimony to the contrary,
but it was not substantiated.   Mechanic Don Leske testified that when he reported
the overlift to the garage foreman, a few weeks before the fatal accident, as discussed
above, the foreman told him that the crane was designed to operate with the rollers off
the turntable.  Leske then testified that he would have to take the foreman's word
for it, because the foreman is supposed to know this kind of thing.  However, Leske
later testified that he still didn't believe that the crane was designed that way. 
The garage foreman did not testify, and Tampa presented no other evidence that the cranes
were designed to operate safely with the rollers off the turntable.  The testimony of
Burkart and of the crane operators clearly established that the cranes were not designed
to operate in that manner.

[[15]] Tampa's counsel represented that crane nos. 1
and 2 were not in operation at all during 1985.

[[16]] It can also be argued that Tampa acted with
conscious disregard for the general duty clause.  It it did, that would be an
independent ground for finding the violation willful under Williams Enterp., supra
p.12.  Tampa apparently was aware, long before the accident, of the general duty
imposed by section 5(a)(1) of the Act.   That provision had been brought up by a
Commission judge in a previous decision apparently involving the same company.  Tampa
Ship Repair and Dry Dock Co., 79 OSAHRC 52/A2, A14 (No. 78-1907, 1979).  (There,
section 5(a)(1) was referred to in the judge's decision regarding proof of a repeated
violation.  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 the particular violation involved here.  However, it was aware that, as a
general matter, it was required to free the workplace, to the extent feasible of
recognized hazards that were likely to cause serious physical harm.  Thus, it could
be argued that Tampa showed conscious disregard for whether its actions violated section
5(a)(1).

[[17]] Tampa has not asserted or shown that a willful
violation is precluded here by any reasonable belief on its part that it was in compliance
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 it believed in reasonable good faith the violative
conditions conformed to requirements of cited provision).

[[1/]] OSHA Instruction STD.2, issued November 4,
1985, identified general industry safety and health standards (29 C.F.R. Part 1910) having
applicability to shipyard work.  Appendix A identifies general industry standards
applicable to shipyard work.  Included among the identified standards are 29 C.F.R.
�� 1910.179 and 1910.180 pertaining to cranes.

[[2/]] Defined by section 4-0.2 of ANSI B30.4-1981 as
"[A] movable structure frame consisting of columns and bracing capable of supporting
a 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 and carries the hoisting mechanism

[[4/]] Section 1910.179(a)(64) states:

(64) "Trolley travel" means the trolley
movement at right angles to the crane runway.

[[5/]] Section 1910.180(b)(1) provides:

(b) General requirements--(1) Application.  This
section applies to crawler cranes, locomotive cranes, wheel mounted cranes of both truck
and self-propelled wheel type, and any variations thereof which retain the same
fundamental characteristics.  This section includes only cranes of the above types,
which are basically powered by internal combustion engines or electric motors and which
utilize drums and ropes. Cranes designed for railway and automobile wreck clearances are
excepted.  The requirements of this section are applicable only to machines when used
as lifting cranes.

[[6/]] Section 1910.180(a)(1) states:

(1) A "crawler crane" consists of a
rotating superstructure with powerplant, operating machinery, and boom, mounted on a base,
equipped with crawler treads for travel.  Its function is to hoist and swing loads at
various radii.

[[7/]] Section 1910.180(a)(2) states:

(2) A "locomotive crane" consists of a
rotating superstructure with powerplant, operating machinery and boom, mounted on a base
or car equipped for travel on railroad track.  It may be self-propelled or propelled
by an outside source.  Its function is to hoist and swing loads at various radii.

[[8/]] Section 1910.180(a)(3) states:

(3) A "truck crane" consists of a rotating
superstructure with powerplant, operating machinery and boom, mounted on an automotive
truck equipped with a powerplant for travel.  Its function is to hoist and swing
loads at various radii.

[[9/]] Section 1910.180(a)(4) states:

(4) A "wheel mounted crane" (wagon crane)
consists of a rotating superstructure with powerplant, operating machinery and boom,
mounted on a base or platform equipped with axles and rubber-tired wheels for
travel.  The base is usually propelled by the engine in the superstructure, but it
may be equipped with a separate engine controlled from the superstructure.  Its
function is to hoist and swing loads at various radii.

[[10/]] Sections 1910.179(b)(8) and 1910.180(b)(3)
are identical and provide as follows:

Designated personnel--Only designated personnel shall be permitted to operate a crane
covered by this section.

The Secretary made no allegation that someone other
than designated personnel were allowed to operate cranes.

Sections 1915.117(b)-(d) provide as follows:

(b) Only those employees who understand the signs,
notices, and operating instructions, and are familiar with the signal code in use, shall
be permitted to operate a crane, winch, or other power operated hoisting apparatus.

(c) No employee known to have defective uncorrected
eyesight or hearing, or to be suffering from heart disease, epilepsy, or similar ailments
which may suddenly incapacitate him, shall be permitted to operate a crane, winch or other
power operated hoisting apparatus.

(d) No minor under eighteen (18) years of age shall
be employed in occupations involving the operation of any power-driven hoisting apparatus
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 understand the signs, notices, and operating instructions for cranes, were under
18 or 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 sections and
weighed.  The three sections weighed 38.099 tons (Tr. 509. 1132).

[[12/]] Caulley and Morgan were experienced crane
operators.  Each of them had considerable years of experience in operating cranes
(Tr. 112, 113). Caulley had a policy of assisting operators on lifts approaching the
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 axis or down the rails.   When the load was raised, it was over the
northeast corner of the support structure to the line of the rails.  This is one of
the more stable configurations for the crane.  While the crane was overloaded, it was
able to sustain the weight while the boom was in that configuration.  As the load was
swung from the longer axis, the lifting capacity diminished.  The lifting capacity is
not the same throughout the 360-degree radius (Tr. 877-880, 882-883).

[[14/]] As safety director, Searle takes the lead in
investigating accidents that occur in the shipyard (Tr. 428, 505).  He took the lead
in 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 for test 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), Barry Sims (Tr. 706), Don Heisserer (Tr. 745-746, 766, 767-768), and
James Screws (Tr. 167-168, 173-174, 178, 185).  The operators could tell there was 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 one situation the operator lifts a heavy load without knowing the weight,
and this could result in an overload.  A guess can easily be wrong. The second way
occurs when the operator is aware the weight exceeds the rated load but goes ahead and
makes the lift (Tr. 859).

[[18/]] See the testimony of crane operator Joseph
Mossey (Tr. 735), Lee Hansen (Tr. 609, 610, 627, 628, 630), Barry Sims (Tr. 674, 708) and
Charles 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 Pillar Cranes, lists items of tower cranes that are subject to frequent and
periodic inspections. The standard does not specify that there must be a written
checklist, although this is one way of assisting the person making the inspection to be
certain something is not overlooked during an inspection.

[[21/]] Section 1910.106(e)(2)(iv)(d) states:

(d) Flammable or combustible liquids shall be drawn
from or transferred into vessels, containers, or portable tanks within a building only
through a closed piping system, from safety cans, by means of a device drawing through the
top, or from a container or portable tanks by gravity through an approved self-closing
valve.  Transferring by means of 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 available in the work area and shall be maintained in a state of readiness for
instant use.  In addition, when hot work is being performed aboard a vessel and
pressure is not available on the vessel's fire system, an auxiliary supply of water shall
be made available where practicable, consistent with avoiding freezing of the lines or
hose.