SECRETARY OF LABOR,
Complainant,

v.

VERGONA CRANE CO., INC.,
Respondent.

OSHRC Docket No. 88-1745

DECISION

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

BY THE COMMISSION:

At issue in this case is whether the judge erred in finding that Vergona Crane Co., Inc.("Respondent"), violated the Occupational Safety and Health Act ("the Act"), 29 U.S.C. §§ 651-78, by failing to comply with the crane safety standard at 29 C.F.R. § 1926.550(a)(5).[[1]] The basis for the judge's finding was that a crane operated by Respondent's employees was used with a broken boom stop on a construction project in South Orange, New Jersey, while it was leased to Polites Construction Co. ("Polites") Respondent contends that it is not responsible for the violation because it was not the employer of the workers assigned to the crane. Respondent also contends that operating the crane with a broken boom stop was not proven to be hazardous, and that it was subjected to impermissible "selective prosecution." For the reasons set forth below, we affirm the judge's finding that Respondent is responsible for the violation, and we reject the Respondent's "selective prosecution" claim.

1. Whether Respondent was properly cited as the employer, in light of evidence that Jo-Le-Ron, Inc. actually leased the crane to Polites

Only an "employer" may be cited for a violation of the Act. See 29 U.S.C § 658(a). See also, e.g., United States v. Doig, 950 F.2d 411, 415 (7th Cir. 1991) (only an employer is liable for the actions of a worker under the Act). The terms "employer" and "employee" are defined in general terms at 29 U.S.C. § 652(5) and (6).[[2]] Respondent argues that it was not the employer of the crane operator and oiler because, among other things, it was not the lessor of the crane. The judge found that, although there was some evidence suggesting that Respondent was the crane's lessor or owner, technically the lessor at the time of the alleged violation was a closely related firm, Jo-Le-Ron, Inc. However, the judge found that Respondent nevertheless was properly cited as the employer in the circumstances. We agree.

Jo-Le-Ron and the Respondent had the same president, Joseph Vergona. The two companies operated out of the same office, and Jo-Le-Ron had no staff, but rather relied on the Respondent's staff to perform its paperwork. As Respondent has acknowledged, it is "owned by a member of the Vergona family," and "shares of Jo-Le-Ron, Inc...are likewise owned by a member or members of the Vergona family." Jo-Le-Ron's name is a composite of Mr. Vergona's children's names. To further illustrate how interrelated the two entities were, the lease on which the Respondent relies to show that Jo-Le-Ron was the crane's lessor was signed by Joseph Vergona for "Vergona Crane Co., Inc." At the top, Jo-Le-Ron's name was typed in as lessor. Another written lease for the same crane, entered into two days after the alleged violation, was between "Vergona Crane Co., Inc." and Polites. In addition, the name on the side of the crane was "Vergona Crane Co."

Under Commission precedent, two related employers are regarded as a single entity where, as here, they share a common worksite, have interrelated and integrated operations, and share a common president, management, supervision, or ownership. E.g., Trinity Indus., Inc., 9 BNA OSHC 1515, 1518-19, 1981 CCH OSHD ¶ 25,297, p. 31,322 (No. 77-3909, 1981). Even if Jo-Le-Ron technically was the crane's lessor at the time of the alleged violation, it was so closely related to Respondent that Respondent was a proper entity to cite here. [[3]].

2. Whether the judge erred in finding that Respondent, rather than Polites, was the employer of the crane operator and oiler

Respondent contends that Polites, which leased the crane, was the crane operator's and oiler's actual employer. A key consideration in determining whether Respondent was the actual employer of particular workers is whether it had the right to control the manner and means by which they carried out their work. The Commission has considered a number of factors when making such a determination, including the following:

1) Whom do the workers consider their employer?

2) Who pays the workers' wages?

3) Who has the responsibility to control the workers?

4) Does the alleged employer have the power to control the workers?

5) Does the alleged employer have the power to fire, hire, or modify the employment condition of the workers?

6) Does the workers' ability to increase their income depend on efficiency rather than initiative, judgment, and foresight?

7) How are the workers' wages established?

Van Buren-Madawaska Corp., 13 BNA OSHC 2157, 2158, 1989 CCH OSHD ¶ 28,504, p. 37,780 (No. 87-214, 1989). The Supreme Court recently held that the term "employee" in a federal statute should be interpreted under common law principles, unless the particular statute specifically indicates otherwise. Nationwide Mutual Insurance Co. v. Darden, 112 S.Ct. 1344,1348 (1992). See Loomis Cabinet Co., 15 BNA OSHC 1635,1637 (No. 88-2012, 1992). The Court noted that all aspects of the relationship are relevant, but that the central inquiry is as follows:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

112 S.Ct. at 1348 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-752 (1989) (footnotes omitted)). Thus, the central inquiry under both tests is the question of whether the alleged employer has the right to control the work involved. See Loomis, 15 BNA OSHC at 1638.

Most of the specific factors mentioned by the Court in Darden suggest that Polites was not the employer of the crane operator, Frank Quinn, and the oiler, Bruce Scavetta. Those workers possessed specialized skill, and Polites gave them no instructions except what loads to move and where to move them. The leased equipment came from Respondent. Although the work was at Polites' construction site, it was performed pursuant to a contract with Respondent and was of temporary duration. Polites had no right to assign additional projects to Quinn and Scavetta, and Polites gave them reasonable discretion as to when and how long to work.

By contrast, the evidence in this particular case shows that Respondent retained the "right to control the manner and means by which the product is accomplished," and thus is properly considered the employer under the Darden test. Based on this record, we find that Quinn and Scavetta determined the manner and means by which Polites' assignments would be accomplished, subject to Mr.Vergona's supervision.

Both Quinn and Scavetta had a long-term association with Vergona Crane Co. When Polites rented a crane from Respondent, which it had done numerous times, Polites normally asked Mr. Vergona to assign Quinn or another operator, Frank McGuire, to operate it. Scavetta had worked for Vergona Crane for about two years.

As to control over crane operations, the judge correctly found:

Michael Polites [Polites' president] or his supervisors told Quinn what loads to move and where to lift them, but that was the extent of Polites' instructions to Quinn. Once Polites ordered a lift, Quinn would determine how to perform the lift and how to swing the boom. Quinn also had authority to refuse to perform a lift if he thought it would be unsafe. For instance, when it is too windy to operate safely, the operator could stop the crane, and Polites would accept the operator's judgment.

Michael Polites also testified that he does not know anything about cranes or how to maintain them, has never operated or performed maintenance on a crane, and is not familiar with OSHA crane standards. While Polites would pay for routine maintenance and lubrication of the crane as well as for replacement of some parts, he relied on Vergona to perform necessary maintenance. Joseph Vergona testified that all matters relating to maintenance and safe operation of the crane are the responsibility of the crane operator and oiler.

(Citations to record omitted.) Mr. Vergona took responsibility for compliance with OSHA standards regarding the crane's cable. He testified, "I don't wait till we meet or exceed OSHA standards [before changing the cable]." To his credit, Mr. Vergona kept in touch with Scavetta concerning safety matters affecting the crane. He told Scavetta to examine the cable for signs of wear. Scavetta kept him advised of attempts to schedule the replacement of the cable. Concerned about the delays, Mr. Vergona instructed his maintenance employee, John Kvilesz, to double-check the cable's condition. Mr. Vergona told Scavetta that if the cable needed to be replaced more quickly than Polites wanted, Scavetta should replace it regardless of Polites' wishes.

Safety was not the only area in which Mr. Vergona supervised the workers. For example, after the accident and after learning that Quinn had gone home, Mr. Vergona ordered Quinn to return to the jobsite. The evidence indicates that Mr. Vergona had an active concern for safety and responsibility in the operation of the crane. It also indicates that he exercised control over the manner and means by which Quinn and Scavetta carried out the crane operations. Polites did not. [[4]]

Respondent stresses the nature of its rental agreement with Polites. The judge accurately described that agreement as follows:

The crane was rented to Polites under what is known in the trade as a "bare rental" agreement. Such an agreement provides that the lessee, in this case Polites, pays the lessor, here [Respondent], a flat fee for use of the crane alone. The lessee may then obtain the necessary crane operating employees, usually an operator and oiler, from the union hiring hall or, if the crane comes from another jobsite, may elect to use the operator and oiler already assigned to the crane. In either event, the crane workers are on the lessee's payroll, Polites, however, has never gone to the union hiring hall for an operator when renting a crane from [Respondent].

(Citations to record omitted.) Respondent further relies on the specific terms of a written lease that it prepared, and that Polites signed, regarding a previous job. Respondent asserts that it had an oral agreement with Polites by which all of the same lease terms were extended to the job at issue here. [[5]] We need not determine whether that assertion is correct, because we find that Respondent was the crane operator's and oiler's actual employer, regardless of whether the terms of the written lease were actually in effect.

The written lease contained an indemnity clause. According to its terms, Polites agreed to assume responsibility for "any and all claims for injury to persons, and all loss, damage or injury to property ... arising in any manner out of [Polites'] operation," and Polites agreed that all persons operating the crane were under its exclusive jurisdiction and control. Another provision of the lease stated that Polites would declare the crane operator and oiler as its employees for tax purposes, and pay their withholding, workers' compensation and union fees [[6]]

However, Michael Polites testified that Respondent and another crane company told him simply that they wanted him to take the crane operator and oiler on his payroll for insurance purposes. He testified that he had rented cranes from various companies for different projects, and that they all required that the renter take the operator and oiler on its payroll when the crane is rented by the month, as here. He testified that as a result, he had "no choice" about whether to take the operator and oiler on his payroll. He further testified that the crane operator and oiler "might have been under my payroll but they were working for Joe Vergona and I had no control over them without Joe Vergona." Mr. Vergona testified that a company which signed its written lease would obtain the crane at a discount rate. Thus, we find that there was no agreement that Polites would have the right to control the manner and means by which the workers carried out their assignments. We further find that Polites did not assume responsibility for regulatory compliance in the operation of the crane, including compliance with the Act.

As mentioned above, the fundamental issue under Darden is whether the alleged employer actually had the "right to control the manner and means by which the product is accomplished." The specific testimony in this case indicates that, in reality, Polites did not possess that general right. Rather, Respondent retained the right of control over the manner and means by which the crane operator and oiler accomplished their assignments. Quinn and Scavetta were employees, not independent contractors. They did not exercise independent business judgment. Their role was to carry out assigned crane tasks efficiently. Based on this record, we find that Quinn and Scavetta were Respondent's employees under the Darden test.[[7]]

Turning to the Commission's test of whether a Respondent is an "employer," the primary consideration under that test has been whether the Respondent "has control over the work environment such that abatement of hazards can be obtained." Van Buren, 13 BNA OSHC at 2159, 1989 CCH OSHD at p. 37,781. As the judge found, Respondent would be considered the employer here, under the Commission's test, based on its retention of control over safety aspects of the crane operations.

None of the additional considerations specifically mentioned in the Commission's test suggest that Respondent was not Quinn's and Scavetta's employer. As to whom the employees considered to be their employer, the judge correctly found Quinn's and Scavetta's testimony on this point to be "equivocal and therefore inconclusive." Polites did not have the authority to hire, fire or modify the employment conditions of the employees directly. To do so, it would have to go through Respondent or terminate the entire lease. Further, Polites did not establish the operator's wage, which was set according to the union pay scale. Thus, Respondent is properly considered the employer of the crane operator and oiler under the Commission's test, as well as under the Darden test. [[8]]

Our decision is based on the particular evidence in this case. It is not to be construed as a general holding concerning the respective responsibilities of crane leasing companies and the construction firms to whom they lease cranes.

3. Whether the judge erred in finding a violation of section 1926.550(a)(5)

Section 1926.550(a)(5) (supra n.1) requires that a competent person, designated by the employer, shall inspect all machinery for safety "prior to each use, and during use," and shall replace any defective parts before the machine is operated again. Based on Quinn's operation of the crane with one of its two boom stops broken, the judge found a violation of the cited standard. Respondent argues that no violation was shown because operating the crane with a broken boom stop was not proven to be hazardous. The judge found:

There is no question that the absence of a boom stop is a safety defect within the meaning of this standard. Both [OSHA compliance officer] Ricca and Scavetta testified that with only one boom stop in place the boom can twist as it is raised and if it is raised too far while twisting it can fall over. Joseph Vergona also [testified] that he would not permit a crane to operate with only one boom stop.

(Citations to record omitted.) In arguing that a hazard was not shown, Respondent notes that Scavetta gave a statement to OSHA after the accident, referring to the broken boom stop and saying that he did not "think it was hazardous." However, Scavetta later testified under oath that the boom could twist and fall over, if only one boom stop is used. Thus, even if Scavetta did not think that operating the crane with a broken stop was hazardous, the judge properly found that it was.

Respondent also asserts that Scavetta testified that the "boom kick out" would prevent twisting and collapse of the boom in these circumstances. Scavetta did not so testify, however. The testimony by Scavetta that Respondent cites indicates only that Quinn had told Polites on the jobsite that the "boom kick out" would prevent those problems. Scavetta did not testify that he agreed with Quinn. Nor was there other evidence explaining how the "boom kick out" would eliminate those problems. Quinn testified that he told Polites that he could work the crane with only one boom stop:

He said could you work the crane, I said I could work the crane with the one stop but I said you have to go very slow and you've got to be real careful, no fast work. You can't go fast. He said that's good enough, so we went to work.

However, that testimony shows that normal operation of the crane would be hazardous with the broken boom stop. Further, as the judge found, the record does not show the basis for Quinn's belief that working very slowly would be acceptable. By contrast, the record shows that if the boom stop was working, it could prevent twisting and collapse of the crane's boom in the event of human error, and that operating without it was unacceptable in the opinion of Mr. Vergona as well as the compliance officer. The preponderance of the evidence clearly shows that a broken safety device like a boom stop was a defective part under the cited standard. Thus, it was necessary to correct the defect before the crane was operated again.

We further find, as the judge did, that Respondent is properly charged with knowledge of the broken boom stop, because Quinn was aware of it. A supervisor's knowledge may be imputed to the employer, unless the employer presents sufficient rebuttal evidence that the supervisor's failure to follow proper procedures was unpreventable. E.g., Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537, 1992 CCH OSHD ¶ 29,617, p. 40,100 (No. 86-360, 1992). Scavetta considered Quinn to be his supervisor, and both Quinn and Scavetta knew that one of the two boom stops was missing. Respondent's only argument against imputing this knowledge is that it was not their employer. As discussed above, we reject that argument. [[9]]

Thus, the Secretary has established all the elements of a violation. Respondent had a duty to comply with the cited standard because it was Quinn's and Scavetta's employer. Respondent, through its supervisor Quinn, failed to comply, and employees who worked near the crane, including Scavetta and Quinn, had access to the hazards. Finally, Respondent could have known, with the exercise of reasonable diligence, that the crane was being operated in violation of the cited standard. E.g., Pace Constr. Corp., 14 BNA OSHC 2216, 2220, 1991 CCH OSHD ¶ 29,333, p. 39,429 (No. 86-758, 1991).

4. Whether Respondent was subjected to impermissible "selective prosecution"

The basis for Respondent's "selective prosecution" claim is that, although the Secretary originally cited Polites for the same violations for which she cited Respondent, she withdrew those citations against Polites before the hearing, under a settlement agreement in which Polites admitted to certain other, less serious violations. Respondent argues that it was incumbent upon the Secretary to prosecute Polites as the employer.

The Secretary has "broad prosecutorial discretion" in deciding whom to prosecute for violations of the Act. DeKalb Forge Co., 13 BNA OSHC 1146, 1153, 1986-87 CCH OSHD ¶ 27,842 p. 36,451 (No. 83-299, 1987), citing Cuyahoga Valley Ry. v. United Transportation Union, 474 U.S. 3 (1985).

Moreover, the conscious exercise of some selectivity in enforcement by itself is not a constitutional violation. . . . Rather, a claim of selective prosecution is judged by ordinary equal protection standards, under which it must be shown that the alleged selective enforcement had a discriminatory effect and was motivated by a discriminatory purpose. . . . In particular, the decision to prosecute may not be "deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification[.]"

Id. (emphasis added, citations and footnote omitted), quoting Wayne v. United States, 470 U.S. 598, 608 (1985). Our finding above that the Secretary correctly believed, and that the judge correctly found, that Polites was not the employer of the crane operator and oiler, disposes of Respondent's argument. Respondent had a full opportunity to show that Polites was in fact their employer, and failed to do so. The evidence provides us with no basis for questioning the propriety of the Secretary's decision to dismiss the crane safety items at issue here against Polites. We reject Respondent's contention that it was subjected to impermissible "selective prosecution."

5. Penalty

The judge assessed a $700 penalty for the violation. In assessing penalties, the Commission considers the gravity of the violation, the size and violation history of the employer, and the employer's good faith. 29 U.S.C. § 666(j). As the judge noted, the result of a crane boom collapse could be death or severe injury to any employees in the area. In fact, two fatalities resulted when the crane's cable snapped, which initially led to OSHA's inspection. (The issues surrounding the failure of the crane's cable were not directed for review.) On the other hand, Respondent is a small employer and had no history of OSHA violations. Also, its president showed some good faith by checking on safety matters affecting the crane while at Polites' worksite, including the condition of the cable. Considering all these factors, the $700 penalty assessed by the judge is appropriate, and we affirm it.

6. Order

In summary, we affirm the judge's finding of a serious violation by Respondent of section 1926.550(a)(5). We also affirm the $700 penalty assessed by the judge for that violation.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner


Dated: July 22, 1992


SECRETARY OF LABOR,
Complainant,

v.

VERGONA CRANE CO., INC.,
Respondent.

OSHRC Docket No. 88-1745

Appearances:

Harry W. Scott. Jr., Esquire
U.S. Department of Labor
Office of the Solicitor

For the Complainant

Edward S. Rosen, Esquire
Rosen & Berman

For the Respondent

BEFORE: MICHAEL H. SCHOENFELD
Judge, OSHRC

DECISION AND ORDER

Background and Procedural History

On January 19, 1988, two workers at a construction site in South Orange, New Jersey were fatally injured when the boom of a crane collapsed. The Secretary issued two citations alleging that Vergona Crane Company ("Vergona") committed one serious and two willful serious [[1/]] violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651-78 ("the Act"). The serious citation alleged that the crane, which had been leased to Polites Construction Company ("Polites"), was being operated by an unlicensed operator. The willful serious citation alleged that the crane was defective because it was missing one of two boom stops and because of excessive wear and broken strands in the boom hoist cable. [[2/]] Vergona timely contested both citations, a complaint and answer were filed, and a hearing was held in New York City from June 27 to June 30, 1989, at which no affected employees or representatives of affected employees sought party status.

Both parties filed post-hearing briefs. The Secretary, however, did not file her brief within the scheduled briefing time but rather requested an extension of time, which I denied because the Secretary did not state good cause for additional time. The Secretary has filed a motion for reconsideration of my order. That motion states no new grounds to justify an extension of time and therefore also is denied. Accordingly, the post hearing brief the Secretary sought to file was returned without being considered.

Jurisdiction

Vergona's answer admits that it filed a notice of content according to the provisions of section 10(c) [[3/]] of the Act and that that notice of contest was duly transmitted to the Commission. Nevertheless, Vergona denied the jurisdictional allegations of the complaint. Since Vergona filed a timely and properly transmitted notice of contest, the Commission has jurisdiction under section 10(c). It is also undisputed that the crane involved in the citations was manufactured in Minnesota (Tr. 44). That is sufficient evidence to show that Vergona is engaged in a business affecting commerce under section 3(5) of the Act. [[4/]] Atlanta Forming Co., 11 BNA OSHC 1667 (No. 80-6925, 1983).

Proper Identification of the Cited Employer

The citations and complaint named Vergona as the Respondent. The evidence shows that the crane in question was in fact owned and leased to Polites by "Jo-Le-Ron, Inc.," a company affiliated with Vergona (Tr. 262-63, 268, 715-23, 1063, 1075; Ex. R-8, R-9). Vergona contends that this action must be dismissed because the Secretary named the wrong party. I reject that argument.

Joseph Vergona is president of both the respondent named here and Jo-Le-Ron, as well as president of a third related company, Vergona and Sons, Inc. All three companies own cranes and are engaged in the same business of renting cranes to construction contractors. Vergona Crane, the named respondent, has three or four office employees who do the paperwork for both that company and Jo-Le-Ron. Both companies are family businesses, and the office employees are Joseph Vergona's relations. [[5/]] Vergona Crane also has a full-time maintenance employee, John Kvilesz, whereas Jo-Le-Ron has no employees. If a crane rented by Jo-Le-Ron needs to be inspected or examined, Vergona Crane's employee Kvilesz will perform that task, and an "interoffice billing" will be issued between Vergona Crane and Jo-Le-Ron (Tr. 1052-53, 1125-28).

I conclude that the circumstances do not warrant dismissing this action on the ground Vergona urges. Vergona Crane and Jo-Le-Ron are closely related not only in their management but also in their business operations. Institution of the action against Vergona clearly provided notice to Jo-Le-Ron. In fact, Vergona's counsel sent a copy of its notice of contest to Jo-Le-Ron. As the Commission held in CMH Co., 9 BNA OSHC 1048, 1054 (No. 78-5954, 1980), a reasonable person test is to be applied in determining whether a party not charged should have known that the action was intended to be brought against it.

Based on the facts here, I find that Jo-Le-Ron must have known that were it not for the Secretary's erroneous belief that Vergona Crane owned the crane in question, Jo-Le-Ron would have been the named employer. See John Hill, 7 BNA OSHC 1485 (No. 78-47, 1979). Furthermore, the issues in this case were fully litigated, and a full defense was put in as to the merits of the citations. Plainly, Jo-Le-Ron has not been prejudiced by the issuance of the citations and complaint to Vergona. P & Z Co., 7 BNA OSHC 1589, 1593 (No. 14822, 1979).

The preferred method of handling this type of situation is an amendment under Fed. R. Civ. P. 15(c) changing the party against whom the claims are asserted. However, the Secretary has not moved to amend. In the absence of such a motion, I will continue to refer to the respondent as Vergona, since in view of the close relationship between Vergona and Jo-Le-Ron the correct identification of the cited employer is merely a technicality.

Employment Issue

Vergona's primary contention is that it was not the employer of the crane operator and oiler and that all matters relating to the safe operation of the crane were exclusively within Polites' control. Therefore, Vergona asserts that the citations must be dismissed for failure of the Secretary to prove either that Vergona had exposed employees or that it exercised any authority over the conditions at the site.

The crane was rented to Polites under what is known in the trade as a "bare rental" agreement. Such an agreement provides that the lessee, in this case Polites, pays the lessor, here Vergona, a flat fee for use of the crane alone. The lessee may then obtain the necessary crane operating employees, usually an operator and oiler, from the union hiring hall or, if the crane comes from another jobsite, may elect to use the operator and oiler already assigned to the crane. In either event, the crane workers are on the lessee's payroll (Tr. 656-64, 1059-61). Polites, however, has never gone to the union hiring hall for an operator when renting a crane from Vergona. Normally, he asks Vergona to assign either Frank Quinn or another operator, Frank McGuire, because he is familiar with those two individuals and knows that they are good operators (Tr. 698, 745-46, 1069, 1073).

In this case, Polites' job at the South Orange site commenced shortly after Polites finished a construction job in Hasbrouck Heights, New Jersey, where it was using a crane rented from Vergona operated by Quinn with Bruce Scavetta as oiler. At Polites' request, Vergona sent the crane, together with Quinn and Scavetta, from Hasbrouck Heights to South Orange (Tr. 406-07, 666, 745-46, 1067-73; Ex. R-15). In accordance with the agreement, Polites put Quinn and Scavetta on its payroll; declared them as its employees for tax purposes; and paid their withholding, workmen's compensation, and union fees (Tr. 687-88). With the exception of Kvilesz, who went to the site on one occasion to inspect the crane (Tr. 1153-54), Quinn and Scavetta were the only workers Vergona sent to the site.

The elements to be considered in determining whether an employment relationship exists include such criteria as who the workers regard as their employer, who pays their wages, who has the responsibility to control the workers, and who has the power to hire, fire, or modify the employment condition of the workers. Van Buren-Madawaska-Corp., 13 BNA OSHC 2157, 2158 (No. 87-214, 1989). Quinn and Scavetta testified that in this instance they considered Polites their employer, whereas in a written statement to the Secretary's compliance officer some months after the accident, Scavetta stated that he has been employed by Vergona Crane for about two years and that his supervisor is Joseph Vergona (Tr. 399-400; Ex. G-10). Although Scavetta was not asked to explain his written statement in light of his testimony, his testimony and that of Quinn indicates that they viewed Polites as their employer solely because Polites was paying their wages (Tr. 328, 402). However, the purpose of the lease provision that Polites would pay the workers' wages was not to establish an employment relationship but was merely a concession to Vergona to allow Vergona to reduce its insurance costs (Tr. 676, 721-23, 1075-76; Ex. R-7, R-9). Since payment of wages in just one of many aspects of an employment relationship, and here is relatively insignificant, I am not inclined to assign dispositive weight to Quinn's and Scavetta's testimony that they believed Polites to be their employer. I also find their testimony to be equivocal and therefore inconclusive because neither witness clearly distinguished between crane rental companies and construction companies who rent cranes. For instance, when asked to describe their work experience, Quinn testified that he had worked for both crane rental companies and contractors (Tr. 351-52), while Scavetta stated that he had worked both for Vergona and for construction contractors including Polites (Tr. 377).

Another factor is the right to hire, fire, or modify the employment condition. Michael Polites, president of Polites Construction, testified that he could not fire Quinn or Scavetta; if he wanted to get rid of the operator or oiler, he would either have to ask Vergona for different workers or terminate the entire lease. Polites also did not establish the operator's wage; it was set according to the union pay scale (Tr. 678, 691).

The primary factor in determining an employment relationship, however, is "who has control over the work environment such that abatement of the hazards can be obtained." Van Buren-Madawaska, 13 BNA OSHC at 2159. The record here shows that ultimate authority over the worksite for purposes of safety of operation of the crane was vested in Vergona.

Michael Polites or his supervisors told Quinn what loads to move and where to lift them, but that was the extent of Polites' instructions to Quinn. Once Polites ordered a lift, Quinn would determine how to perform the lift and how to swing the boom. Quinn also had authority to refuse to perform a lift if he thought it would be unsafe. For instance, when it is too windy to operate safely, the operator could stop the crane, and Polites would accept the operator's judgement (Tr. 330, 678, 725-27).

Michael Polites also testified that he does not know anything about cranes or how to maintain them, has never operated or performed maintenance on a crane, and is not familiar with OSHA crane standards (Tr. 723). While Polites would pay for routine maintenance and lubrication of the crane as well as for replacement of some parts, he relied on Vergona to perform necessary maintenance (Tr. 659-60, 723). Joseph Vergona testified that all matters relating to maintenance and safe operation of the crane are the responsibility of the crane operator and oiler (Tr. 1078-79). That Vergona rather than Polites exercised authority over the site with respect to the safety of crane operations is aptly demonstrated by the circumstances surrounding the allegations that the crane was not in a safe operating condition.

When the crane was sent to Polites' worksite, it had been operating for about six months on other sites. Because the lifespan of a boom cable normally is not much greater than six months, Joseph Vergona told Scavetta to examine the cable for signs of wear. Both Scavetta and Quinn inspected the cable daily while standing on top of the crane cab, and Quinn performed a more thorough inspection on the Monday before the accident (January 18) when he lowered the crane boom to the ground and walked along it. Both Quinn and Scavetta found that the cable was somewhat worn and had a few broken strands, indicating nothing more than normal wear and tear. It was Scavetta, however, who assumed the role of liaison between Vergona and Polites. Because the cable had been in use for at least six months, Scavetta informed Polites' superintendents that it should be changed. Since replacing the cable would take the crane out of service, Scavetta attempted to arrange with Polites a mutually convenient date for the cable change. He was unsuccessful. Over a two-week period before the accident, the cable change was scheduled and rescheduled several times (Tr. 326-31, 336-38, 341- 43, 367, 373-75, 379-83, 388, 412-16, 422-26, 1081-92).

Scavetta kept Vergona advised of the reschedulings (Tr. 435-36). Vergona, who was beginning to get concerned about the age of the cable, instructed Kvilesz to check the cable so that Vergona could have another opinion as to its condition. He told Kvilesz that Polites was procrastinating and that if Kvilesz concluded that the cable needed to be changed "we'll take further steps and do it quicker than what they're [Polites] trying to schedule" (Tr. 1109). He made essentially the same statement to Scavetta as well, telling him that if the cable had to be changed, Scavetta should go ahead and change it without regard to Polites' preferences (Tr. 390, 1088).

Kvilesz went to the site one or two weeks before the accident. As did Quinn and Scavetta, Kvilesz found some broken wires which he did not consider serious, but he felt that the cable should be replaced within the next couple of weeks (Tr. 1083, 1086-87, 1154, 1170). The cable change was eventually scheduled for the Monday before the accident, was cancelled, and then rescheduled that day for the following Wednesday, which turned out to be the day after the accident (Tr. 1091-92). [[6/]] Vergona specifically testified that if he thought the cable had become hazardous, he would have seen to it that the cable was changed (Tr. 1111). Scavetta also testified that so long as he was paid for the work, he would change the cable if Vergona instructed his to do so (Tr. 403).

The other crane safety matter that demonstrates Vergona's ultimate control relates to the boom stop. A boom stop is an attachment to the boom that works along the principle of a shock absorber. Its purpose is to prevent the boom from going over backwards by keeping it from rising higher than its center of gravity (Tr. 55-56). About one week before the accident one of the crane's two boom stops became bent, forcing Quinn to stop the crane. Michael Polites, who came over to find out why the crane was not operating, asked if the stop could be repaired or if he should arrange for another crane. Quinn and Scavetta replied that they could fix the stop and another crane would not be necessary. A few days later the stop bent again, and again Polites or his superintendent asked if it was repairable. On the Friday before the accident the other stop bent but Quinn could not straighten it. Quinn then told Polites that the crane could be operated with only one boom stop and also explained that the crane had an additional safety device called a "kick out" that would help prevent the boom from going over backwards. [[7/]] However, Quinn did advise Polites that he would have to move the boom slowly and carefully and would not be able to work fast. Polites agreed that that would be satisfactory (Tr. 332-35, 392-95, 418, 669-70). Polites testified that he did not know anything about boom stops and relied on what Quinn told him (Tr. 728, 732-34).

When the accident occurred, Quinn telephoned Vergona's office to report that Vergona equipment had been damaged. He was not able to speak to Joseph Vergona directly and went home. Thereafter Joseph Vergona called Quinn at his home and instructed him to go back to the site (Tr. 347-49).

These facts show that Polites had some operational control over the crane. However, mere operational control of a crane is the not sole factor in determining whether an employment relationship exists. Acchione & Canuso Inc., 7 BNA OSHC 2128, 2129-30 (No. 16180, 1980). The record clearly demonstrates that with respect to the question of whether the crane was in safe operating condition, Polites did not exercise control over Quinn and Scavetta. Joseph Vergona and not Michael Polites informed Scavetta that the cable should be inspected for wear and replaced if necessary. Vergona also instructed Scavetta that if a safety hazard existed, the cable would be changed without regard to Polites' scheduling preferences, and Scavetta's testimony indicates that he would have complied with such a directive from Vergona. Similarly, Polites asked Quinn and Scavetta for their opinion regarding the boom stops, leaving the decision whether to operate the crane entirely within their discretion. I find that Polites relied on Quinn and Scavetta to advise him of any matters pertaining to the safety of the crane and that he gave them no instructions in that regard. See Sasser Electric & Manufacturing Co., 11 BNA OSHC 2133 (No. 82-178, 1984), aff'd, 12 BNA OSHC 1445 (4th Cir. 1985) (unpublished) (discussion of employer's right to rely on expertise of another). I also find that Vergona was responsible to insure that the crane was properly maintained and in safe operating condition and that Vergona had ultimate authority to direct Quinn and Scavetta on safety matters. The control exercised by Vergona with respect to safety matters at the site establishes that Vergona and not Polites is the employer of Quinn and Scavetta. Acchione & Canuso, supra. [[8/]]

Citation No. 1, Item 1
Alleged Serious Violation of 29 C.F.R. § 1926.550(b)(2)

The Secretary alleged that Quinn did not have a current New Jersey crane operator's license and therefore had failed to pass an examination as required by ANSI standard B30.5-1968. [[9/]]

Quinn had received a license in 1963 when the New Jersey state licensing program began, but his license lapsed in 1980 or 1981. He testified, however, that he currently has a license. At the time of the inspection he also informed the Secretary's inspector, Louis Ricca, that he had a license, but was unable to produce it. Ricca also testified that the state, which keeps licensing records for no longer than six years, had no record of a license issued to Quinn over the six years preceding the accident (Tr. 60-61, 274, 322, 350).

Proof that an employer has knowledge of conditions that fail to comply with a standard is a necessary element of the Secretary's case. Continental Electric Co.,13 BNA OSHC 2153, 2154 n.4 (No. 83-921, 1989). The Secretary may satisfy this burden by showing either that the employer had actual knowledge of the violative condition or that the employer could have known of the violative with the exercise of reasonable diligence. Chapman Construction Co., 9 BNA OSHC 1175, 1177 (No. 76-2677, 1980). Quinn testified that none of his employers were aware that his license had lapsed (Tr. 322). Joseph Vergona had known Quinn from at least 1975, when Quinn was working for Hoffman Crane. He regarded Quinn as a qualified operator. Ricca also testified that he found nothing during his investigation to indicate that Quinn was not experienced (Tr. 274). Vergona did not ask Quinn whether he had a valid license but believed that Quinn did because it is the operator's obligation to maintain his license in good standing. Vergona also felt that the union hall would not send out someone who was unlicensed (Tr. 323, 351, 1077-78, 1119).

I find that the preponderance of the evidence shows that Quinn did not have a valid license at the time of the accident and inspection, although he may have had one by the time of the hearing in this case. I also find, though, that Vergona was not obligated to specifically inquire whether an experienced operator sent from the union had a valid license. Therefore, Vergona could not reasonably have known that Quinn's license had lapsed.

The issue presented here, however, is not whether Quinn had a valid license but whether he had passed an examination as required by the standard. When he applied for his license Quinn was only given some questions to answer; he was not required to operate a crane as part of his examination (Tr. 350). That does not comply with the cited section of the ANSI standard, which calls for a "practical operating examination" that is "limited to the specific type equipment" that will be operated. The only reasonable interpretation of this language is that the operator must prove by an actual physical demonstration that he is competent to operate the equipment in question. However, I find that no violation was established because the Secretary has failed to present any evidence to show that Vergona knew or reasonably could have known that Quinn had not been given the type of examination required by the standard.

In addition to the lack of proof of employer knowledge, I vacate this item as de minimis. Quinn has been operating cranes since 1960 (Tr. 321). The fact that he was not required to show his competence to operate a crane when he first received his license in 1963 has a negligible, if any, relationship to the safety of the crane operations 25 years later at the worksite in question here. Cleveland Consolidated, Inc.,13 BNA OSHC 1114, 1118 (No. 84-696, 1987).

Citation No. 2, Item 1
Alleged Willful Serious Violation of 29 C.F.R. § 1926,550(a)(5)


The Secretary alleged that Vergona violated this standard by allowing the crane to operate without replacing the broken boom stop.[[10/]] There is no question that the absence of a boom stop is a safety defect within the meaning of this standard. Both Ricca and Scavetta testified that with only one boom stop in place the boom can twist as it is raised and if it is raised too far while twisting it can fall over (Tr. 303, 417). Joseph Vergona also stated that he would not permit a crane to operate with only one boom stop (Tr. 1080).[[11/]]

However, Vergona further testified that although Scavetta notified him when the boom stops bent and were restraightened, neither Quinn nor Scavetta ever told him that a stop had broken and that the crane was being operated with only one boom stop (Tr. 1080, 1093-94). His testimony is consistent with that of Quinn, who stated that he never spoke to Vergona about the missing stop and that Scavetta informed Vergona on the first two occasions when the stop bent (Tr. 335, 346). Scavetta, for his part, testified that he could not recall whether he advised Vergona that they were using only the one stop (Tr. 394-95). On the other hand, Michael Polites testified that he asked Joseph Vergona whether he should make arrangements to get another crane, and that Vergona told him the crane could be operated with one stop if Quinn took it easy. He also testified that at Quinn's suggestion he had one of his drivers take the broken stop to Vergona's yard (Tr. 669-71, 729-32). Vergona expressly denied that Polites ever asked him about operating the crane with only one stop and that no one brought the boom stop from the Polites site to the Vergona yard (Tr. 1080).

I have carefully weighed the conflicting evidence as to whether Joseph Vergona himself was aware that the boom stop had broken. [[12/]] In evaluating this testimony, I have taken into account the undisputed evidence that when Vergona realized that the cable was approaching the end of its useful life, he instructed his employees to inspect and change the cable if they found it to be excessively worn. Those facts demonstrate that Vergona is a safety-conscious individual who was concerned that the crane be in safe operating condition. To conclude that Vergona know about the broken boom stop but took no measures whatever to correct that condition would be completely inconsistent with his actions regarding the hoist cable. It is more a reasonable inference that Vergona allowed the crane to continue to operate with only one stop because he did not know that the other stop had broken. Accordingly, I find Vergona's testimony that he was unaware of the broken stop to be credible. [[13/]]

However, while I find that the Secretary failed to show that Joseph Vergona personally had knowledge that the boom stop had broken, Vergona as the employer must be charged with Quinn's knowledge. After Quinn conferred with Polites' personnel regarding the lifts to be made with the crane, he would instruct Scavetta where to move the crane and give Scavetta directions for backing up the crane. Scavetta considered Quinn his supervisor for this purpose Quinn also had authority to instruct Scavetta to inspect the crane and its cable and could direct Scavetta to make arrangements to get a new boom stop (Tr. 405-06). These facts are sufficient to show that Quinn was a supervisory employee whose knowledge is imputable to his employer. Iowa Southern Utilities Co., 5 BNA OSHC 1138 (No. 9295, 1977). Because Quinn obviously knew that the stop had broken and that the crane was being operated in that condition, Vergona as Quinn's employer is charged with knowledge of the violative conditions under the imputation principle. See Wander Iron Works, Inc., 8 BNA OSHC 1354, 1357 (No. 76-3105, 1980).

I do not, however, find the violation willful as alleged. The evidence fails to show that Vergona's failure to replace the boom stop or to prevent the crane from being operated with only one stop was due to an intentional disregard for the requirements of the Act or plain indifference to employee safety. Keco Industries, Inc., 13 BNA OSHC 1161, 1163 (No. 81-263, 1987). As I have found, Joseph Vergona credibly testified that he would have taken appropriate action had he known of the condition of the boom stop. Quinn's belief that one boom stop was not unsafe if he operated the crane slowly and that the "kick out" would compensate for the missing boom stop does not establish willfulness. The Secretary did not present any evidence to show that there could be no rational basis for Quinn's belief that slow operation and the kick out would alleviate any hazard. See Wright & Lopez, Inc., 10 BNA OSHC 1108, 1114 (No. 76-256, 1981) and cases cited therein (good faith belief negates willfulness). Nor has the Secretary presented any other facts from which I could conclude that Quinn's state of mind was one of disregard or indifference to the requirements of the standard. Accordingly, the Secretary has not established a willful violation on the facts here. Brock v. Morello Brothers Construction, 809 F.2d 161, 164 (1st Cir. 1987).

Citation No. 2, Item 2
Alleged Willful Serious Violation of 29 C.F.R. § 1926.550(a) (7)(i) and § 1926.550(a)(7)(ii)

This item is a grouping of three subitems alleging that the crane hoist cable was defective and should have been taken out of service. [[14/]] The Secretary claimed that the cable contained an excessive number of randomly distributed broken wires in one lay (subitem 2(a)) and broken wires in one strand in one lay (subitem 2(b)) and also had numerous flat spots, exhibiting excessive wear (subitem 2(c)) [[15/]]

According to Ricca, wire rope consists of individual wires formed into strands, which in turn are wrapped around a center core. A rope of the size in question here has six strands. A "lay" refers to the lateral distance along one twist of a strand. At Ricca's request, Joseph Vergona cut a piece of cable about two feet long from the crane. This piece or cable is shown in photographic exhibits G-1A, 1B, and 1C, and was itself admitted as exhibit G-1. It had been coated with a dressing that was black in color which Ricca thereafter removed with pressurized hot water (Tr. 48-51, 96, 272-73, 300-01, 362). Based on an examination of this cut section of the cable, Ricca observed numerous breaks in individual wires, both randomly throughout all the strands in a given lay as well as multiple breaks in one strand in one lay. He counted 23 randomly distributed broken wires and 13 broken wires on one strand in one lay (Tr. 52, 71). I have examined G-1, the actual piece of cable cut from the crane. It has a large number of broken wires within one or two-inch areas, clearly in excess of the maximum permitted under the standard. Next to a strand containing a number of obvious large breaks is a strand with some smaller breaks.

Charles Savko, Ricca's supervisor, accompanied Ricca on the inspection. He testified that he wiped off a portion of the cable and looked at the broken strands at several locations on the crane gantry where the pulleys that operate the boom are located. Even where the cable still had grease on it he was able to count more than six broken wires in one lay and more than three in one strand (Tr. 765-69; Ex. G-14). Savko also testified that the cut section of the cable shows uniform wear from one end to the other. After Ricca cleaned the cut section, Savko used a calipers to measure the diameter of the wires. Based on that measurement, he estimated that individual wires had been worn down to 50 percent of their original diameter. In his opinion, a cable should be changed when wires are worn beyond one-third of their diameter (Tr. 777-78, 1025-26).

Quinn testified that when he examined the cable, he did so by lightly and slowly running his hand along it (Tr. 361-62). Scavetta did the same, except that Scavetta wore gloves. Although he had a rag with him, Scavetta did not clean off the cable but rather felt for broken wires as he moved his hand along the wire. He found no more than one break in the wire every one to three feet (Tr. 380, 412, 424). Kvilesz, who did run a rag along the cable, testified that in his experience, the rag will pickup any "burrs" that are present, which will indicate whether there is a problem in the cable. While he did not see an excessive number of broken wires, he observed smaller breaks similar to those appearing on exhibit G-1 but did not count them and therefore did not know how many there may have been. He has been inspecting cables for about three years, and Vergona has given him some instruction in conducting such inspections. However, he is not familiar with the OSHA requirements as to the maximum number of breaks permitted, nor does he know what a "lay" is (Tr. 1155-56, 1159, 1164-68). Quinn also had not been given specific training in, and was not aware of, the OSHA standards but followed procedures operators have established over the years (Tr. 357). Scavetta, who has been an oiler for three years, had been taught that a cable should be changed if it has a "group" of wires broken within a 6-inch to 1-foot area (Tr. 377-79, 425). Neither Quinn, Scavetta, nor Kvilesz testified regarding wear or thinning of the wires as opposed to broken wires.

Savko gave his opinion that Quinn and Scavetta had performed an inadequate inspection. Because the cable can easily cut a person's hand, one should never run his bare hand along a wire. According to Savko, once Quinn and Scavetta encountered some broken wires, they should have wiped the wire with a rag and specifically looked for any additional breaks. He also felt that a rag would detect more broken wires than would a bare hand because the rag would catch on breaks where as a person rubbing his hand lightly over a cable would be likely to miss some breaks (Tr. 786-87, 1015-18). Savko did not testify regarding Kvilesz's inspection..

Quinn, Scavetta, and Kvilesz agreed that a cable in the condition of exhibit G-1 shows damage and should be taken out of service (Tr. 367, 414-16, 1157-58). However, there is a dispute as to whether the cut section accurately represents the condition of the cable before the accident or whether the wires in this sample were broken as a result of the accident. Some of the testimony centered on the cable pulleys, which were severely bent, distorted, and scratched after the accident (Ex. R-2, R-3, R-4). Various witnesses agree that the damage to the pulleys indicates what was happening to the cable at the time of the accident, but there is some disagreement as to specifically what conclusions should be drawn from the condition of the pulleys or from the fact that exhibit G-1 has a curve or twist in it.

It is undisputed that the hoist cable parted at one location. Exhibit R-1 is a photograph of a torn, frayed cable end. Savko concluded that the pulleys were damaged when the flared-out broken end shown in exhibit R-1 traveled through the pulleys at a high rate of speed. Savko believed that if exhibit G-1 had jumped out of the pulley it would have received nicks and gouges, which it did not have. Savko stated that exhibit G-1 was bent simply from running through the sheave and that the cable did not leave the sheave after it broke because he saw the cable still in the flange of the pulley.

Savko further distinguished an "abrasion" or "fatigue" break from a "tension" break, stating that the first type of break is caused by metal-to-metal wear that develops over a period of time. It is characterized by a flattening in the shape of individual wires. A tension break, on the other hand, has a distinctive "cup" and "cone" appearance reflecting a wire that has been pulled on in two different directions. When the tension is released, the broken wire ends spring up and back. The wires in exhibit G-1 have the flattened appearance of a fatigue break rather than the cup and cone characteristic of a tension break and also are in line rather than "flipped back" (Tr. 778-87, 795-806, 1008-11).

Joseph Vergona's view was that the damage to the pulleys was caused by the cable running outside the flange of the pulleys. He felt that the breaks shown in exhibit G-1 could have been caused by wear or could have resulted from the cable jumping off the pulley, but he also stated that the corkscrew shape of exhibit G-1 indicates that the cable ran over a sharp edge, such as a pulley housing. On the other hand, Vergona conceded that the rope crossing over the sheaves and being dragged across the sharp points of the housing could have caused the frayed out cable ends shown in exhibit R-1 (Tr. 1095-05, 1150-51).

Quinn likewise testified that the cable jumped out of a sheave and shredded, with exhibit R-1 showing the shredded area and G-1 showing where the cable jumped the sheave. He also stated that the curl in the exhibit G-1 cable section could only be caused by jumping and that running within the sheave would not be capable of causing the conditions shown in exhibit G-1. He did not explain why (Tr. 339-40, 367-68, 376).

In my view, all the witnesses were about equally qualified--or, for that matter, equally unqualified--to give an opinion as to whether the damage contained in exhibit G-1 existed prior to or resulted from the accident. Savko has been an OSHA inspector and supervisor since 1975, and has conducted well over 200 inspections of cranes. Previously, he worked for over 15 years in the mining industry performing daily inspections of the cables, clamps, and pulleys on a personnel hoist. He had experience investigating accidents where a boom lifting cable had broken. On the other hand, he has no college education and in particular is not a trained metallurgist. He also does not know whether the technology and methodology of wire ropes has changed over the years (Tr. 750-60, 770-71, 792, 1031). Savko's level of expertise is not appreciably different from that of Vergona, who has 20 years experience with cranes in different capacities, including mechanic, oiler, and operator (Tr. 1054-58), or that of Quinn, who has been a crane operator since 1960 (Tr. 321).

Savko's testimony, though, is consistent with the appearance of exhibit G-1, on which areas where wires have been flattened are quite visible. It is reasonable and logical to conclude that this flattening indicates that the cable wires have worn down over a period of time, and that conclusion also is consonant with Vergona's concern for the length of time the cable had been in use. Savko's judgment that the cable strands were broken before the accident also is corroborated by Kvilesz's testimony that he found some broken wires when he inspected the cable one or two weeks prior to the accident. Vergona's testimony, on the other hand, was equivocal in that he testified that either wear or movement outside of the pulley could have caused the conditions in exhibit G-1. Furthermore, Vergona's admission that the torn cable ends shown in exhibit R-1 could have resulted from the cable moving across the pulley housing area supports Savko's view that movement outside of the pulley was not a factor in the condition of exhibit G-1.[[16/]] Finally, I discount Quinn's testimony on this subject because he stated no reasons to support his opinion.

Accordingly, I find that the cable had an excessive number of broken wires before the accident. [[17/]] The evidence also shows that visually inspecting the cable after wiping it with a rag is an appropriate and reasonable method for detecting broken wires. In fact, that is the technique Kvilesz himself used, except that Kvilesz did not count all the broken wires he saw. I therefore, find that with the exercise of reasonable diligence Vergona could have known of the number of broken wires. Accordingly, Vergona is in violation as alleged in subitems 2(a) and 2(b).

However, I do not find the violation willful as alleged. The Secretary established that Vergona's employees had not been instructed in the proper method for inspecting a cable for breaks and had not been made aware of the requirements of the OSHA standard pertaining to the maximum permissible number of broken wires. However, the Secretary has not presented any evidence to show that Vergona acted out of disregard or indifference to the requirements of the standard. In fact, as indicated above, Joseph Vergona was concerned that the cable was becoming excessively worn and needed replacement. Simple lack of diligence or relessness in failing to discover a violation does not constitute willfulness. Marmon Group, Inc., 11 BNA OSHC 2090, 2092 (No. 79-5363, 1984).

Savko's testimony about the wires having become worn down is unrebutted. Additionally, as indicated above, flattened wires are clearly visible in exhibit G-1. However, Savko's observations and conclusions about the amount of wear were based on his examination of the cable after it had been removed from the site and thoroughly cleaned with pressurized water. There is no evidence from which I can conclude that wear or flattening of the wires would have been evident when the cable was covered with grease, nor did the Secretary show that wiping the cable with a rag would be sufficient to reveal this type of wear. Accordingly, the allegation in subitem 2(c) has not been proven due to the Secretary's failure to show that Vergona knew or reasonably could have known of the violative condition.

Penalty Assessment
There is no record of a prior history of violations by Vergona. [[18/]] Vergona also is a small employer, and it demonstrated some good faith in its concern for the condition of the cable. However, violations for having defective crane components are of high gravity, as exemplified by the fact that two fatalities occurred in this case. I assess a penalty of $700 each for items 1 and 2 of citation no. 2.

FINDINGS OF FACT

Findings of fact relevant and necessary to a determination of all issues have been made above. Fed. R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are denied.

CONCLUSIONS OF LAW

1) Vergona Crane Company, Inc. was at all times pertinent hereto an employer engaged in a business affecting commerce within section 3(5) of the Act, and the Commission has jurisdiction of the parties and the subject matter.
2) Vergona was at all times pertinent hereto required to comply with the requirements of the Act and the regulations issued pursuant to the Act.
3) Vergona did not violate 29 C.F.R. § 1926.550(b)(2) (citation no. 1, item 1).
4) Vergona was in serious violation of 29 C.F.R. § 1926.550 (a)(5) (citation no. 2, item 1) but the violation was not willful.
5) Vergona was in serious violation of 29 C.F.R. § 1926.550 (a)(7)(i) (citation no. 2, subitems 2(a) and 2(b)) but the violation was not willful.
6) Vergona was not in violation of 29 C.F.R. § 1926.550(a) (7)(ii) (citation no. 2, subitem 2(c).
7) Pursuant to section 17(j) of the Act, the following penalizes are appropriate:

a. Citation no. 2, item 1. . . .$700
b. Citation no. 2, subitems 2(a) and 2(b). $700

ORDER

1. Item 1 of citation no. 1 for violation of 29 C.F.R. § 1926.550(b)(2) is VACATED.
2. Item 1 of citation no. 2 for violation of 29 C.F.R. § 1926.550(a) (5) is AFFIRMED and a penalty of $700 is assessed therefor.
3. Subitems 2(a) and 2(b) of citation no. 2 for violation of 29 C.F.R. § 1926.550(a)(7)(i) are AFFIRMED and a penalty of $700 is assessed therefor.
4. Subitem 2(c) of citation no. 2 for violation of 29 C.F.R. § 1926.550(a)(7)(ii) is VACATED

MICHAEL H. SCHOENFELD
Judge, OSHRC

 

 

FOOTNOTES:

[[1]] That standard, promulgated by the Secretary of Labor's Occupational Safety and Health Administration ("OSHA"), provides:

The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

[[2]] Those definitions state:

(5) The term "employer" means a person engaged in a business affecting commerce, who has employees, but does not include the United States or any State or political subdivision of a State.

(6) The term "employee" means an employee of an employer who is employed in a business of his employer which affects commerce.

[[3]] As the judge mentioned, even if Jo-Le-Ron had been the only appropriate entity to cite, an amendment of the pleadings to name it as the employer would be permissible under the principles of Federal Rule of Civil Procedure 15(c). That rule applies to Commission proceedings under 29 C.F.R. § 2200.2(b). Amendment of the pleadings to change the name of the party sued is permitted under Fed. R. Civ. P. 15(c) when the same claim is involved and the party to be bought in by the amendment: (1) received timely notice of the institution of the action, so that it would not be prejudiced in defending its position on the merits; and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. The 1991 amendment to Fed. R. Civ. P. 15(c) extends the "relation-back period" for such an amendment to at least 120 days after the limitations period for bringing the action. Pub.L. 102-198, § 11(a), 105 Stat. 1626 (1991). See generally 6A C. Wright, et al., Federal Practice and Procedure, § 1498(1992 Supp.).

The Rule 15(c) criteria have been met here. Jo-Le-Ron's responsibility would be based on the same conduct, transaction and occurrences as Respondent's responsibility. Jo-Le-Ron received full and timely notice of the institution of the action when Mr. Vergona received the citation. Furthermore, it knew or should have known that the action would have been brought against it except for the alleged mistake as to which Vergona entity leased the crane. (A citation is not a "summons" or "complaint" within the meaning of the Federal Rules. See, e.g., P & Z Co., 7 BNA OSHC 1589, 1591, 1979 CCH OSHD ¶ 23,777, p. 28,829 (No. 14822, 1979). However, no stricter rule for "relation back" of an amendment is warranted for a citation. See, e.g., CMH Co., 9 BNA OSHC 1048, 1052-54, 1980 CCH OSHD ¶ 24,967, p. 30,826 (No. 78-5954, 1980) (dealing with former version of Fed. R. Civ. P. 15(c)).

[[4]] The fact that Respondent did not interrupt Polites' construction job to change the cable does not indicate that Respondent lacked control over the crane, operator or oiler. Mr. Vergona's testimony shows that he was concerned about finding a time convenient to Polites to change the cable. His concern for Polites' convenience is understandable in light of the companies' business relationship and the lack of urgency that Vergona's personnel conveyed to him about changing the cable. Thus, based on this record, Respondent retained the authority to replace the crane's cable at its discretion.

[[5]] Polites and Respondent did sign a written lease concerning the jobsite in question here, but not until after the alleged violation occurred. That lease contained essentially the same terms as the previous written lease. There was no evidence that the subsequent lease was effective retroactively.

[[6]] In Respondent's behalf, it also bears noting that Polites' regular business was construction, and it had hired cranes from Respondent, or companies related, to Respondent, on numerous prior occasions.

[[7]] Respondent argues that this case is indistinguishable from a recent case in which a Commission judge found that the crane leasing company was not the crane operator's employer. United Crane & Shovel Serv., 88 OSAHRC 20/A12 (No, 87-1331, 1988) However, the situation there was actually quite different. A contractor leased a crane from United on a bare rental lease, but hired the crane operator entirely independent from United. No relationship was shown between United and the crane operator. By contrast, in this case there was a long-term employment relationship between Respondent and the crane operator and oiler, and Respondent retained control over the manner and means by which they performed their assignments.

[[8]] There is no need in this case to permit this as a further opportunity to present evidence or argument on the employment issue, in light of Darden and his  parties have had a full opportunity to present evidence on any factors that relate to that issue, including whether Respondent had a right of control over the manner and means by which the crane operator and oiler performed their work. The extensive hearing produced substantial evidence on each of the factors specifically mentioned in Darden and Van Buren. Further, the briefs on the issue have been comprehensive.

[[9]] It can be argued that Respondent also reasonably could have known that the crane was being operated in violation of the cited standard because of a frayed cable. Respondent was aware that the crane's cable was fraying, and intended to replace it. Before it was replaced, however, the cable snapped, resulting in a fatal accident. Because of our disposition of the knowledge issue, we need not and do not address this issue.

[[1/]] Originally, citation no. 2 alleged only willful violations. The complaint amended that citation to allege that the willful violations were serious as well.

[[2/]]The boom hoist cable, also referred to as the "boom cable" or the "hoist cable," is a wire rope that raises and lowers the crane's boom. It is a different cable than the line that lifts the load itself (Tr. 373). The latter is not at issue.

[[3/]] Section 10(c) of the Act provides that if an employer files a timely notice of contest, "the Secretary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing...."

[[4/]] This section provides: "The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State."

Joseph Vergona, Vergona's president, testified that Vergona has employees (Tr. 1125-26). There is a dispute, however, as to whether Vergona was the employer of the crane operator and oiler on the jobsite in question here and whether it was responsible for their actions. That issue is discussed later in this decision.

[[5/]] The name "Jo-Le-Ron" is an amalgam of Joseph Vergona's children's names (Tr. 716).

[[6/]] Vergona explained that on Friday, January 15 Pete Cronk, Polites' ironworker superintendent, called to cancel the cable change that had been scheduled for the following Monday. Consequently, Vergona told Scavetta not to bother picking the replacement cable, which had been loaded on a truck at Vergona's yard. Then on Monday morning Cronk called Vergona to ask if the cable could be changed that afternoon. Vergona told Cronk that he did have anyone to take the cable to the worksite but that Cronk could pick up the cable himself (Tr. 1088-91). Polites' view of these events is that Vergona prevented the scheduled change because he refused to bring the cable to the site (Tr. 743).

The parties dispute whether Polites or Vergona was responsible for the cancellations and postponements that eventually resulted in the cable not being changed. I express no opinion on this question because it is irrelevant to the issue here--which company, Vergona or Polites, had ultimate authority and control over the crane with regard to safety matters.

[[7/]] A "kickout" is an arm alongside the operator's cab that precludes the boom from being raised above a certain point (Tr. 418).

[[8/]] Polites cites a decision in United Crane & Shovel Service Co., 88 OSAHRC 20/A12 (No. 87-1331, 1988) (ALJ), in which Judge DeBenedetto held that United Crane, which leased a crane to a contractor, Eastern Steel Erectors, on a "bare rental" agreement was not the employer of the crane operator. That case is factually distinguishable. United Crane did not exercise any control over the operator; in fact, Steel Erectors hired the operator directly without any involvement by United Crane, and there is no evidence to indicate that the lessor had any contact whatever with the operator.

[[9/]] The Secretary's standard, 29 C.F.R. § 1926.550(b)(2), in pertinent part, requires as follows:

All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance, and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes. . . .

The referenced ANSI standard provides, in pertinent part, as follows:

5-3.1.2 Qualifications for Operators
a. Operators shall be required to pass a practical operating examination. Examination shall be limited to the specific type equipment which he will operate.

[[10/]] The cited standard requires as follows:

The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

[[11/]] Quinn evidently believed that the crane could be operated safely with only one boom stop if it was operated slowly and that the "kick out" would compensate for the missing boom stop. The record does not show the basis for Quinn's belief. The preponderance of the evidence establishes that operating with only boom stop in place is not safe.

[[12/]] Although Quinn testified that he had never discussed a boom stop with Vergona, he gave a contrary statement to Ricca during the inspection. In his written statement (Ex. G-9), Quinn told Ricca that he had advised Vergona of the broken boom stop and that Vergona instructed him to continue working while Vergona made arrangements to bring a new stop to the site.

At the hearing Vergona's counsel questioned Quinn about this statement. Quinn expressly testified that the statement was incorrect and that he had never spoken to Vergona about the boom stop. He explained that what he had meant to say was that all messages to Vergona were relayed through Scavetta, who placed all phone calls to Vergona (Tr. 345-46).

Quinn's explanation is not implausible. As previously indicated, Scavetta and not Quinn was the contact between Polites and Vergona with respect to the cable. Therefore, it is not inconceivable that Scavetta would have been assigned the responsibility to keep Vergona informed about the condition of the boom stops as well. Furthermore, Scavetta did in fact talk to Vergona about the boom stops insofar as he told Vergona when the stops became bent. The Secretary has failed to present any evidence from which I can reasonably conclude that Quinn's explanation of his written statement is not credible.

[[13/]] During his inspection, compliance officer Ricca noticed one boom stop lying on the ground next to the crane (Tr. 43). If that had been the only boom stop present at the site, Ricca's observations would have supported Polites testimony that he took the other boom stop to Vergona's yard. Unfortunately, Ricca was not asked whether the other boom stop was still on the crane or whether he saw only one stop. Ricca also testified that Quinn told him during the inspection that the boom stop he saw had been removed before the accident and placed against the crane outrigger where Ricca observed it (Tr. 46). That statement supports a conclusion that the broken boom stop had not been removed from the site.

[[14/]] Although the complaint amended the citation to allege that item 2 is serious as well as willful, the allegation of seriousness explicitly appears in the complaint only as to subitems 2(a) and 2(b) . That portion of the complaint dealing with subitem 2(c) does not include an allegation that the violation is serious. I conclude that the omission of such an allegation with respect to subitem 2(c) is an oversight and that the Secretary intended to allege that all three subitems are serious as well as willful in nature.

[[15/]] The cited standard provides, in pertinent part:

Wire rope shall be taken out of service when any of the following conditions exist:

(i) In running ropes, six randomly distributed broken wires in one lay or three broken wires in one strand of one lay;
(ii) Wear of one-third the original diameter of outside individual wires. Kinking, crushing, bird caging, or any other damage resulting in distortion of the rope structure....

[[16/]] However, Savko's testimony is not totally credible. His statement that he observed the cable still in the flange of the pulley cannot be reconciled with his opinion that the pulleys were damaged when the broken end of the cable traveled through them.

[[17/]] I base this finding not only on the physical evidence of Exhibit G-1 but also on Savko's testimony of his examination of the cable on the crane and on Kvilesz's testimony of the breaks he saw when he inspected the cable one or two weeks before the accident. However, Ricca stated that the citation subitems relating to the broken wires were based solely on Exhibit G-1 (Tr. 96).

[[18/]] Although Vergona was previously cited for an alleged violation of the crane standards (Tr. 761- 2; Ex. G-5), there is no evidence as to the final disposition of that citation.