“Docket No. 83-0231 SECRETARY OF LABOR,Complainant, v.MLB INDUSTRIES, INC.,Respondent.OSHRC Docket No. 83-0231DECISIONBefore:\u00a0 BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor(\”Secretary\”) under the Act and has no regulatory functions.\u00a0 Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Jerome C. Ditore foundthat Respondent, MLB Industries, Inc. (\”MLB\”), had failed to comply with 29C.F.R. ? 1926.28(a)[[1]] in that three employees were not using safety belts when theywere exposed to a potential fall of 14 feet. The issue on review is whether the judgecorrectly found that MLB was the employer of these employees for purposes of the Act.[[2]]I. Crown Zellerbach (\”Crown\”) was theowner of and a general contractor at a construction project in South Glens Falls Mills,New York.\u00a0 On February 28, 1983, MLB was completing some work at a warehouse in theconstruction project pursuant to a contract with Crown.\u00a0 On that day, Craig Dexter,project engineer for Crown, contacted George Bromley, project manager for MLB. \u00a0Dexter said that he had an \”emergency,\” and asked Bromley if he could supplymanpower to remove sections of a floor at the \”IP\” building, which was locatedabout one-quarter mile from the warehouse.\u00a0 According to Bromley, Dexter stated thathe would tell the workers what to do, would furnish the tools needed, and would supervisethe work.\u00a0 Nothing else was discussed between Dexter and Bromley.At the time of Dexter’s request, MLB had acontract with the local union and therefore had access to union labor, but Crown did not.\u00a0 Thus, according to MLB’s vice president of operations, MLB served as a\”conduit for labor\” for Crown and had done so on at least two previousoccasions.\u00a0 On those occasions there were no purchase orders; MLB would supply thelaborers, pay them, and bill Crown after the work was completed.\u00a0 During the previoustransactions, Dexter and others from Crown had told Bromley that they did not wantsupervision, just manpower.\u00a0 Bromley further testified that, on these occasions, MLBwas not directed or expected to provide safety equipment or safety precautions.At approximately noon on February 28, Bromley met Paul Stafford at the warehouse, whereStafford had been performing some work for MLB.\u00a0 Bromley told Stafford that he was tobreak out some concrete and that Dexter would tell him what to do and would supply thenecessary tools.\u00a0 Bromley took Stafford to the IP building site, where he introducedStafford to Dexter.\u00a0 Bromley then telephoned Peter Ingleston, a laborer, and sent himto meet Stafford at the IP building site.At about 12:30 p.m. on February 28, Dexter tookStafford and Ingleston to the location where they would do the work.\u00a0 Dexter showedthem approximately six or seven sections of the concrete floor that had to be removed, andtold them how the sections had to be chopped out.\u00a0 Dexter told the workers to use thetools that were there, which consisted of jackhammers and a compressor. Dexter also toldthe labors to wear the hard hats, safety glasses, and ear plugs that the laborers hadbrought with them to the worksite, instructions that were consistent with the arrangementsMLB and Crown had made.\u00a0 Dexter did not mention the use of fall protection.Stafford and Ingleston worked about 3 1\/2 hoursthat afternoon and cut out two sections of the floor.\u00a0 While they were working,Dexter was in the area two or three times.\u00a0 During one of these times, Stafford toldDexter that one of the jackhammers was not working properly.\u00a0 Dexter told Stafford to\”go get a hammer from someplace.\”\u00a0 Stafford obtained a jackhammer fromMLB’s trailer at another job.When Stafford and Ingleston returned to theworksite at about 7:00 a.m. on March 1, they were joined by Bob Fletcher, another laborersupplied by MLB.\u00a0 Dexter briefly spoke to the workers at the beginning of the workday.\u00a0 Dexter also was in the area two other times that morning, for a total of about5 to 10 minutes.\u00a0 On one of these occasions, Dexter indicated that he planned to sendthe employers who were working below to lunch, so that the laborers could continue workingwithout endangering other employees with falling debris.At approximately 11:55 a.m., while Ingleston andFletcher were cutting out a section of the floor with jackhammers, the concrete on whichFletcher was standing gave way.\u00a0 Fletcher fell approximately 14 feet to the basementand later died of his injuries.The concrete floor that the employees wereworking on had been poured in an arch form to give it support, but the floor did notcontain rebars or other reinforcement.\u00a0 Stafford testified that he had been toldthat, if the arch of the floor was cut, the floor would be weakened and would be unsafe.\u00a0Stafford believed that he was told this before the accident, but he could not recallwho had told him this.\u00a0 The three employees had not used safety belts or lifelines,nor had they been provided with any other type of fall protection.\u00a0 Both Stafford andIngleston, as well as the compliance officer, testified that safety belts and lifelinescould have been used by the laborers, since there were beams nearby where the lines couldhave been attached.At the time of the accident, Stafford had workedfor MLB for 14 or 15 years.\u00a0 However, Stafford did not consider MLB to be hisemployer for the work at the IP building, since MLB did not supervise the work, but rather\”we were listening\” to Dexter of Crown. Ingleston, on the other hand, consideredMLB to be his employer for this work, because Bromley had told him to go to the worksiteand MLB had been his employer for the past three years.There was conflicting testimony about Stafford’sstatus on this job.\u00a0 Stafford testified that, although his job title was \”laborforeman\” and he was paid at a foreman’s pay rate, he did not act as a foreman for theconcrete removal work.\u00a0 Both Stafford and Ingleston considered Dexter to be theforeman in charge of the project.\u00a0 However, the compliance officer testified that,during the inspection, Stafford was identified as a foreman by an MLB safety supervisor,and that Stafford himself said he was a foreman.\u00a0 Ingleston also stated that Staffordwas \”a foreman over there,\” and that he \”gets stuff set up for us.\”Stafford testified that he believed that Crowncould have thrown him off the worksite if Crown thought that his work was unsatisfactory.\u00a0He stated, however, that Crown would have to notify Bromley or \”Mr.M.L.B.,\” because \”they are the ones that sent me there.\”\u00a0 Bromleytestified that he could have laid off Stafford, Ingleston or Fletcher from the job at theIP building.MLB paid the three employees for their work atthe IP building and sent Crown a bill, totaling $577, for the work.\u00a0 That amountequaled the employees’ wages, payments for the employees’ pension, welfare, taxes, andinsurance, and a 10% markup for handling the payroll.II.In determining whether MLB was the employerresponsible for the safety of the employees performing the work at issue, Judge Ditoreconsidered the following five factors:1.\u00a0 Whom the employee considers to be hisor her employer;2.\u00a0 Who pays the employee’s wages;3.\u00a0 Who is responsible for controlling the employee’s activities;4.\u00a0 Who has the power as opposed to the responsibility to control the employee; and5.\u00a0 Who has the power to fire the employee or to modify the employee’s employmentconditions.The judge observed that in Del-MontConstruction Co., 81 OSAHRC 35\/E11, 9 BNA OSHC 1703, 1981 CCH OSHD ? 25,324 (No.76-4899, 1981), the Commission considered these five factors in determiningemployer-employee relationships.The judge found that Stafford, Ingleston, andFletcher were employees of MLB, not Crown.\u00a0 The judge found that MLB paid theemployees’ wages, had the ability and the power to control the employees, and could firethem or otherwise modify their working conditions.\u00a0 The judge also noted thatIngleston believed he was MLB’s employee, while Stafford considered himself to be anemployee of Crown.\u00a0 However, the judge found that Stafford, despite his belief, wasMLB’s labor foreman on the job and directed the activities of the other two employees.\u00a0In the judge’s view, the supervisory role of Dexter of Crown was limited, since heleft the employees under Stafford’s supervision to do the job after telling them what todo.\u00a0 The judge concluded that MLB was responsible for the safety on the jobsite andfor the cited violation.\u00a0 The judge found that MLB had committed a repeated violationof section 1926.28(a) and assessed a penalty of $1,540.MLB contends that the key factor in identifyingemployment relationships under the Act is the degree of control and supervision exerted bythe alleged employer.\u00a0 MLB asserts that the laborers were under the control andsupervision of Crown.\u00a0 The Secretary contends that the judge properly applied thefive-factor test for determining employment relationships under the Act and correctly heldthat the workers remained employees of MLB.III.This case involves the circumstances under whicha particular company can be considered an \”employer\” under the Act so as to beheld responsible for the safety of its employees. [[3]]\u00a0 The Supreme Court has held,in the context of other statutes, that it is inappropriate to use varying state common lawdefinitions of an employee and employer in construing federal legislation.\u00a0 UnitedStates v. Silk, 331 U.S. 704 (1974).\u00a0 Instead of looking at narrow common lawdefinitions, the Supreme Court has looked to the purpose of the statute involved indeciding how employment relationships should be defined.\u00a0 NLRB v. HearstPublications, Inc., 322 U.S. 111, 124 (1944) (the meaning of the term\”employee\” under the National Labor Relations Act is to be determined primarilyfrom the history, terms, and purposes of the legislation).\u00a0 Further, the UnitedStates courts of appeals that have addressed the issue under the Act have held thatemployment relationships should be determined by reference to the Act’s purpose andpolicy. Clarkson Construction Co. v. OSHRC, 531 F.2d 451, 457-58 (10th Cir. 1976); FrohlickCrane Service, Inc. v. OSHRC, 521 F.2d 628, 631-32 (10th Cir. 1975); Brennan v.Gilles & Cotting, Inc., 504 F.2d 1255, 1261 (4th Cir. 1974).The express purpose of the Act is to\”assure so far as possible every working man and woman in the Nation safe andhealthful working conditions.\”\u00a0 29 U.S.C. ? 651(b).\u00a0 To effectuate thispurpose it is appropriate for the Commission, in considering whether an employmentrelationship exists, to place primary reliance upon who has control over the workenvironment such that abatement of the hazards can be obtained.[[4]]\u00a0 This approachis consistent with the above-cited Supreme Court and courts of appeals opinions.\u00a0 Itis also in keeping with the Commission’s analysis in the analogous situation of themulti-employer construction worksite, where the Commission has concluded that the Act’spurpose is best served if an employer’s duty to comply with OSHA standards is based uponwhether it created or controlled the cited hazard.[[5]]As the judge stated in his decision, theCommission has generally considered five factors in determining employer-employeerelationships.\u00a0 Del-Mont Construction Co., supra; Sam Hall &Sons, Inc., 80 OSAHRC 106\/A2, 8 BNA OSHC 2176, 1980 CCH OSHD ? 24,927 (No. 76-4988,1980); Acchione & Canuso, Inc., 80 OSAHRC 5\/B4, 7 BNA OSHC 2128, 1980 CCH OSHD? 24,174 (No. 16180, 1980). [[6]]\u00a0 Three of these factors — who is responsible forcontrolling the employee’s activities, who has the power to control the employee, and whohas the power to fire the employee or to modify the employee’s employment condition — arerelated to the issue of who controls the work environment and employees.\u00a0 Since thesefactors give effect to the remedial purpose of the Act, they should be given particularemphasis in determining who is an employer under the Act.\u00a0 The other two factorsinvolve the employees’ belief as to who is their employer and the determination of whopays the laborers’ wages.\u00a0 Although these latter two factors have some bearing on theemployment relationship, they are not directly related to the issue of control, and shouldnormally be accorded less emphasis in determining the employment relationship under theAct.Although we continue to evaluate those factorsset forth in Del-Mont in order to determine who is the responsible employer underthe Act, we note that the Commission has never considered any list of factors to be allinclusive.\u00a0 Moreover, in determining the employment relationship, each situation mustbe examined on a case-by-case basis and all relevant factors considered.\u00a0 See Griffin& Brand of McAllen, Inc., supra.Analyzing this case from the standpoint of whohad control over the employees and their activities, we conclude that Crown had both theresponsibility and the power to control the employees’ activities.\u00a0 Crown’s controlover the employees’ activities was consistent with the arrangements made between Crown andMLB prior to the beginning of the work.\u00a0 In his request for workers, Dexter, Crown’sproject engineer, told Bromley, MLB’s project engineer, that he would tell the workerswhat to do, would furnish the tools and would supervise the work.\u00a0 Further, in otherinstances when MLB furnished Crown with labor, Bromley was told that Crown did not wantsupervision, just manpower, and MLB was not directed or expected to provide safetyequipment or safety precautions.Crown owned the construction project and was thegeneral contractor responsible for the work at the IP building.\u00a0 When the employeesarrived at the site, Dexter showed them the sections of concrete floor that had to beremoved and told them how the work was to be done.\u00a0 He also told the employees to usethe tools that Crown had provided at the worksite, and to wear their hard hats, safetyglasses, and ear plugs.[[7]]\u00a0 Although no MLB supervisor was in the area,[[8]] Dexterof Crown periodically checked the progress of the work.\u00a0 Thus, the circumstancesunder which the work was performed lead to the conclusion that Crown had the power todirect the employees’ activities and to insure the work was done safely.The judge found that Dexter’s role was a\”limited one,\” and that control of the employees’ activities was left toStafford as MLB’s foreman at the jobsite.\u00a0 We conclude that these findings are notsupported by a preponderance of the evidence.\u00a0 Both Stafford and Ingleston testifiedthat they considered Dexter to be in charge of the project.\u00a0 Additionally, asdiscussed above, Crown did not request supervision from MLB for the work.\u00a0 AlthoughStafford’s job title was \”laborer foreman\” and he was paid at a foreman’s payrate, he testified that he did not act as a foreman on this job.[[9]]\u00a0 Further, thereis no evidence that Stafford had disciplinary authority, instructed the other workers insafety, enforced safety rules, or in any other respects acted as their supervisor on thisjob. Cf. Daniel International Corp. v. OSHRC, 683 F.2d 361 (11th Cir. 1982)(\”leadman\” at construction site is not a supervisor for purposes of employer’sdefense of isolated employee misconduct).\u00a0 Rather, Dexter’s role in explaining thework to the employees, instructing that they wear hard hats, safety glasses, and earplugs, determining when employees were to take lunch breaks, and checking the progress ofthe work establishes that he was the supervisor in charge of the work.In contrast to Crown’s direct control over theemployees’ activities through Dexter’s supervision, MLB’s power to control the employeesand to modify their working conditions was largely indirect or theoretical.\u00a0 AlthoughMLB selected and contacted the employees about the job, there was no showing that MLB’sinitial contact with the employees had an impact upon how they performed their work ortheir safety.[[10]]\u00a0 Although MLB may have had the authority to withdraw the laborersfrom the worksite, to fire them, and to assign other laborers to do the work, MLB was notperforming any work at the IP building and did not take any role in determining how theconcrete floor was to be removed.\u00a0 Further there is no indication that MLB knew ofany circumstances that would have required it to take action with respect to the workers’employment, either for safety purposes or for any other reason.\u00a0 Therefore, MLB didnot have sufficient control of the work environment or employee’s activities to support afinding that it was an employer under the Act.The other factors that have been considered bythe Commission in determining employer-employee relationships do not support a findingthat MLB was the employer of the employees in this case.\u00a0 With respect to who theemployees considered their employer to be, we note that Stafford considered Crown to bethe employer based upon Dexter’s role in supervising the work.\u00a0 However, Inglestonconsidered MLB to be his employer because MLB had been his regular employer for threeyears and Bromley had contacted him about the work.\u00a0 Thus, the evidence isinconclusive with respect to whom the employees considered their employer.With respect to who paid the employees’ wages,it is clear that, although the initial payment of the wages was made by MLB, Crown wasbilled and ultimately responsible for payment.\u00a0 MLB was merely serving as a\”conduit for labor\” for Crown, since MLB had a contract with the local union butCrown did not.\u00a0 MLB billed Crown for the employees’ wages, their benefits, and a 10%markup for handling the payroll.\u00a0 Thus, while MLB technically paid the workers, itappears that it assumed this responsibility primarily as a matter of convenience and thatit was Crown who actually was responsible for the cost.\u00a0 Accordingly, we do notconsider this payment of the employees to be significant in determining who was theiremployer.Having reviewed the circumstances surroundingthe employment relationship in this case, we conclude that Crown, not MLB, was theemployer of the three employees for purposes of the cited violation. [[11]]\u00a0 Inreaching this conclusion, we attach particular importance to the fact that Crown assumedresponsibility for the employees’ activities, had control of the worksite, and providedthe supervision of the work.\u00a0 Therefore, Crown was in a better position than MLB toassure the safety of the workers in removing sections of the concrete floor.[[12]]Accordingly, the citation in this case isvacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 October 31, 1985WALL, Commissioner, concurring:I concur with the majority opinion in that theindicia of employer\/employee relationships should be viewed consistently with the intentof the statute rather than to track \”employee\” analysis derived from otherstatutes, and that the indicia of employment should be analyzed in the context of thefacts of each case.\u00a0 However, I would absolve MLB of responsibility for safety inthis case, and assign it to Crown irrespective of which company was the\”employer\” of the three laborers.\u00a0 Even if these employees were those ofMLB under any construction of the term employer, then these employees were\”loaned\” to Crown.\u00a0 In my view, the paramount consideration under theOccupational Safety and Health Act is who had control of the workplace, and under thefacts of this case it would clearly reside in Crown.\u00a0 While it would not always beappropriate to assign safety responsibility to the \”loanee employer\” as opposedto the \”loaner employer\”[[13]] as is brought out in the majority opinion,Crown’s project engineer told Bromley, MLB’s project engineer, that he would tell theworkers what to do, would furnish the tools and would supervise the work.\u00a0 Further,in other instances when MLB furnished Crown with labor, Bromley was told that Crown didnot want supervision, just manpower, and MLB was not directed or expected to providesafety equipment or safety precautions.\u00a0 When the employees arrived at the site,Dexter showed them the sections of concrete floor that had to be removed, and told theemployees what tools to use and what protective devices to wear.\u00a0 The situs wasCrown’s workplace.\u00a0 No MLB supervisor was in the area, and MLB cannot reasonably beheld accountable for the employees’ safety in these circumstances.\u00a0 Notwithstandingthe employer\/employee relationship, Crown should have been held responsible for the safetyof the employees, and, in fact, was the only employer in a position to provide for safety.\u00a0 Accordingly, I concur.FOOTNOTES: [[1]] The standard provides:? 1926.28 Personal protective equipment.(a) The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operations where there isan exposure to hazardous conditions or where this part indicates the need for using suchequipment to reduce the hazards to the employees.[[2]] MLB does not argue on review that?1926.28(a) was not violated; MLB only argues that it should not be held responsible forthe violation.[[3]] The Act defines the term\”employer\” as \”a person engaged in a business affecting commerce who hasemployees, but does not include the United States or any State or political subdivision ofa State.\”\u00a0 29 U.S.C. ? 652(5).\u00a0 However, the Act does not set forthcriteria for determining under what circumstances a \”person\” shall be consideredthe employer of particular employees.[[4]] The Tenth Circuit has observed that\”[i]n order to accomplish [the Act’s] purpose, it is necessary to look to an employerwho controls the working environment.\u00a0 Whether the employer controlling workenvironment (sic) is also the employer for wage or tort purposes should not be a governingfactor.\”\u00a0 Clarkson Construction Co. v. OSHRC, supra at 458,quoting James E. Roberts Co., 74 OSAHRC 21\/B6, 1 BNA OSHC 1684, 1973-74 CCH OSHD ?17,659 (No. 103 & 118, 1974) (Commissioner Cleary, dissenting).[[5]] In such cases, the Commission has heldthat a general contractor at a construction site, by reason of its general supervisoryauthority, may be responsible for hazardous conditions to which a subcontractor’semployees have access.\u00a0 Further, a subcontractor who did not create or controlhazards to which its employees are exposed may defend against the Secretary’s charge byshowing that it took realistic measures to protect its employees.\u00a0 Lewis &Lambert Metal Contractors, Inc., 84 OSAHRC __\/___ , 12 BNA OSHC 1026, 1984 CCH OSHD ?26,294 (No. 80-5295, 1984); Grossman Steel & Aluminum Corp., 76 OSAHRC 54\/D6, 4BNA OSHC 1185, 1975-76 CCH OSHD ? 20,691 (No. 12775, 1976); see also DeTrae Enterprises v. OSHRC, 645 F.2d 103 (2d Cir. 1981) (per curiam); Anning-Johnsonv. OSHRC, 165 F.2d 1981, 1988 (7th Cir. 1975); Brennan v. Underhill ConstructionCorp., 513 F.2d 1032 (2d Cir. 1975)[[6]] In earlier cases, the Commissionconsidered the following three factors in identifying an \”employer\” for purposesof the Act: (1) the person whom the employees consider to be their employer; (2) who paysthe employees’ wages; and (3) who is responsible for controlling employees’ activities.\u00a0 See, e.g., Gordon Construction Co., 4 BNA OSHC 1581, 1976-77CCH OSHD ? 20,968 (No. 7390, 1976).\u00a0 See also Griffin & Brandof McAllen Inc., 78 OSAHRC 48\/C13, 6 BNA 1702, 1978 CCH OSHD ? 22,829 (No. 14801,1978) (seven-factor test applied to determine whether workers were employees of therespondent or were independent contractors).[[7]] Bromley testified that this instruction concerning the wearing of safety equipmentwas consistent with the arrangements made between MLB and Crown.[[8]] The workers for the most part worked without any supervisors in the area. \u00a0However, even if these laborers had been Crown’s regular employees, Crown’s supervisorsmight have concluded that, because of the employees’ experience and the repetitious natureof the work, a constant supervisory presence in the area was not necessary.\u00a0Therefore, the inference that MLB was responsible for these employees cannot be drawn fromthe fact that Crown did not maintain a constant supervisory presence.[[9]] According to the compliance officer,during the inspection Stafford was identified as a foreman by an MLB safety supervisor,and Stafford himself said he was a foreman.\u00a0 Ingleston also stated that Stafford was\”a foreman over there\” and that he \”gets stuff’ set up for us.\” \u00a0However, it is unclear whether this testimony concerning Stafford’s role as a foremanreferred to the particular work at the IP building or to Stafford’s work during his usualemployment by MLB.\u00a0 Accordingly, we find the testimony by the compliance officer andby Ingleston is insufficient to establish that Stafford acted in a supervisory role andthus had control over the employees’ work activities and safety.[[10]] Ingleston and Stafford only were told byBromley that they would be breaking out some concrete, and they were given no otherinstructions about how the work would be performed.\u00a0 In addition, Stafford was toldthat Dexter, Crown’s project engineer, would tell him what to do.[[11]] The circumstances of this case aredifferent from Del-Mont Construction Co., supra, where the Commission foundthat the cited company (Del-Mont) was the employer for purposes of the Act.\u00a0 Del-Monthad loaned employees to another company (Betz) for performance of valve installation workin a sewer system.\u00a0 Unlike this case, where Dexter of Crown told Bromley that hewould tell the workers what to do and would supervise the work, in Del-Mont therewas no discussion prior to the start of the work with respect to who would control theworkers’ activities.\u00a0 Further, in Del-Mont, Betz’s supervisor at the worksitedid not consider himself to be the supervisor of the loaned employees and did no more thanshow the employees the location of the work, while in this case Dexter of Crown acted asthe supervisor of the loaned employees.\u00a0 Finally, while Del-Mont like MLB did nothave any supervisors present at the worksite, Del-Mont took a more active role than MLBwith respect to the work being performed. Del-Mont supplied all of the equipment neededfor the work, one of the leased employees reported to Del-Mont’s president on the secondday of the job and discussed the work with him, and Betz’s supervisor asked Del-Mont’spresident for permission to use the employees on a second manhole.This case can also be distinguished from SamHall & Sons, Inc., supra; Acchione & Canuso, Inc., supra;and Gordon Construction Co., supra.\u00a0 In those cases, thecompanies that borrowed the employees’ services did not have the expertise to supervisethe leased employees’ work and did not supervise the employees with respect to how theirwork was performed.\u00a0 In this case, Dexter of Crown was the supervisor in charge ofthe work, and there was no showing that Crown did not possess sufficient expertise tosupervise the work.\u00a0 Rather, the evidence indicates that Dexter was familiar with thework since he was project engineer for the general contractor at the construction site,and he told the employees how the floor sections were to be removed.[[12]] We also reject the conclusion that, under the circumstances of this case, both MLBand Crown should be considered the employer of the laborers for purposes of the Act.\u00a0 As the Seventh Circuit observed in Anning-Johnson Co. v. OSHRC, duplicativeliability does not necessarily promote the purposes of the Act, since \”[p]lacingresponsibility in more than one place is . . . likely to cause confusion and disruption innormal working relationships on a construction site . . . [and] might in effect prove tobe counterproductive.\”\u00a0 516 F.2d at 1089.[[13]] For example, when loaned employees have expertise in a field not possessed by theloanee employer, or where the loanee employer has no reason to supervise the employees, e.g.,employees delivering construction materials to a project.”