“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 VergonaCrane Co., Inc.(\”Respondent\”), violated the Occupational Safety andHealth Act (\”the Act\”), 29 U.S.C. ?? 651-78, by failing to comply withthe crane safety standard at 29 C.F.R. ? 1926.550(a)(5).[[1]] The basisfor the judge’s finding was that a crane operated by Respondent’semployees was used with a broken boom stop on a construction project inSouth Orange, New Jersey, while it was leased to Polites ConstructionCo. (\”Polites\”) Respondent contends that it is not responsible for theviolation because it was not the employer of the workers assigned to thecrane. Respondent also contends that operating the crane with a brokenboom stop was not proven to be hazardous, and that it was subjected toimpermissible \”selective prosecution.\” For the reasons set forth below,we affirm the judge’s finding that Respondent is responsible for theviolation, and we reject the Respondent’s \”selective prosecution\” claim.*1. Whether Respondent was properly cited as the employer, in light ofevidence 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 workerunder the Act). The terms \”employer\” and \”employee\” are defined ingeneral terms at 29 U.S.C. ? 652(5) and (6).[[2]] Respondent argues thatit was not the employer of the crane operator and oiler because, amongother things, it was not the lessor of the crane. The judge found that,although there was some evidence suggesting that Respondent was thecrane’s lessor or owner, technically the lessor at the time of thealleged violation was a closely related firm, Jo-Le-Ron, Inc. However,the judge found that Respondent nevertheless was properly cited as theemployer in the circumstances. We agree.Jo-Le-Ron and the Respondent had the same president, Joseph Vergona. Thetwo companies operated out of the same office, and Jo-Le-Ron had nostaff, but rather relied on the Respondent’s staff to perform itspaperwork. As Respondent has acknowledged, it is \”owned by a member ofthe Vergona family,\” and \”shares of Jo-Le-Ron, Inc…are likewise ownedby a member or members of the Vergona family.\” Jo-Le-Ron’s name is acomposite of Mr. Vergona’s children’s names. To further illustrate howinterrelated the two entities were, the lease on which the Respondentrelies to show that Jo-Le-Ron was the crane’s lessor was signed byJoseph Vergona for \”Vergona Crane Co., Inc.\” At the top, Jo-Le-Ron’sname was typed in as lessor. Another written lease for the same crane,entered into two days after the alleged violation, was between \”VergonaCrane Co., Inc.\” and Polites. In addition, the name on the side of thecrane was \”Vergona Crane Co.\”Under Commission precedent, two related employers are regarded as asingle entity where, as here, they share a common worksite, haveinterrelated and integrated operations, and share a common president,management, supervision, or ownership. \/E.g., Trinity Indus., Inc.,\/ 9BNA 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 timeof the alleged violation, it was so closely related to Respondent thatRespondent was a proper entity to cite here. [[3]].*2. Whether the judge erred in finding that Respondent, rather thanPolites, was the employer of the crane operator and oiler*Respondent contends that Polites, which leased the crane, was the craneoperator’s and oiler’s actual employer. A key consideration indetermining whether Respondent was the actual employer of particularworkers is whether it had the right to control the manner and means bywhich they carried out their work. The Commission has considered anumber 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 theemployment condition of the workers?6) Does the workers’ ability to increase their income depend onefficiency 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 heldthat the term \”employee\” in a federal statute should be interpretedunder common law principles, unless the particular statute specificallyindicates otherwise. \/Nationwide Mutual Insurance Co. v. Darden,\/ 112S.Ct. 1344,1348 (1992). \/See Loomis Cabinet Co.\/, 15 BNA OSHC 1635,1637(No. 88-2012, 1992). The Court noted that all aspects of therelationship are relevant, but that the central inquiry is as follows:In determining whether a hired party is an employee under the generalcommon law of agency, we consider the hiring party’s right to controlthe manner and means by which the product is accomplished. Among theother factors relevant to this inquiry are the skill required; thesource of the instrumentalities and tools; the location of the work; theduration of the relationship between the parties; whether the hiringparty has the right to assign additional projects to the hired party;the extent of the hired party’s discretion over when and how long towork; the method of payment; the hired party’s role in hiring and payingassistants; whether the work is part of the regular business of thehiring party; whether the hiring party is in business; the provision ofemployee 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, thecentral inquiry under both tests is the question of whether the allegedemployer has the right to control the work involved. \/See Loomis\/, 15BNA OSHC at 1638.Most of the specific factors mentioned by the Court in Darden suggestthat Polites was \/not\/ the employer of the crane operator, Frank Quinn,and the oiler, Bruce Scavetta. Those workers possessed specializedskill, and Polites gave them no instructions except what loads to moveand where to move them. The leased equipment came from Respondent.Although the work was at Polites’ construction site, it was performedpursuant to a contract with Respondent and was of temporary duration.Polites had no right to assign additional projects to Quinn andScavetta, and Polites gave them reasonable discretion as to when and howlong to work.By contrast, the evidence in this particular case shows that Respondentretained the \”right to control the manner and means by which the productis accomplished,\” and thus is properly considered the employer under the\/Darden\/ test. Based on this record, we find that Quinn and Scavettadetermined the manner and means by which Polites’ assignments would beaccomplished, subject to Mr.Vergona’s supervision.Both Quinn and Scavetta had a long-term association with Vergona CraneCo. When Polites rented a crane from Respondent, which it had donenumerous times, Polites normally asked Mr. Vergona to assign Quinn oranother operator, Frank McGuire, to operate it. Scavetta had worked forVergona Crane for about two years.As to control over crane operations, the judge correctly found:Michael Polites [Polites’ president] or his supervisors told Quinn whatloads to move and where to lift them, but that was the extent ofPolites’ instructions to Quinn. Once Polites ordered a lift, Quinn woulddetermine how to perform the lift and how to swing the boom. Quinn alsohad authority to refuse to perform a lift if he thought it would beunsafe. For instance, when it is too windy to operate safely, theoperator could stop the crane, and Polites would accept the operator’sjudgment.Michael Polites also testified that he does not know anything aboutcranes or how to maintain them, has never operated or performedmaintenance on a crane, and is not familiar with OSHA crane standards.While Polites would pay for routine maintenance and lubrication of thecrane as well as for replacement of some parts, he relied on Vergona toperform necessary maintenance. Joseph Vergona testified that all mattersrelating to maintenance and safe operation of the crane are theresponsibility of the crane operator and oiler.(Citations to record omitted.) Mr. Vergona took responsibility forcompliance with OSHA standards regarding the crane’s cable. Hetestified, \”I don’t wait till we meet or exceed OSHA standards [beforechanging the cable].\” To his credit, Mr. Vergona kept in touch withScavetta concerning safety matters affecting the crane. He told Scavettato examine the cable for signs of wear. Scavetta kept him advised ofattempts to schedule the replacement of the cable. Concerned about thedelays, Mr. Vergona instructed his maintenance employee, John Kvilesz,to double-check the cable’s condition. Mr. Vergona told Scavetta that ifthe 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 theworkers. For example, after the accident and after learning that Quinnhad gone home, Mr. Vergona ordered Quinn to return to the jobsite. Theevidence indicates that Mr. Vergona had an active concern for safety andresponsibility in the operation of the crane. It also indicates that heexercised control over the manner and means by which Quinn and Scavettacarried out the crane operations. Polites did not. [[4]]Respondent stresses the nature of its rental agreement with Polites. Thejudge 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, inthis case Polites, pays the lessor, here [Respondent], a flat fee foruse of the crane alone. The lessee may then obtain the necessary craneoperating employees, usually an operator and oiler, from the unionhiring hall or, if the crane comes from another jobsite, may elect touse the operator and oiler already assigned to the crane. In eitherevent, the crane workers are on the lessee’s payroll, Polites, however,has never gone to the union hiring hall for an operator when renting acrane from [Respondent].(Citations to record omitted.) Respondent further relies on the specificterms of a written lease that it prepared, and that Polites signed,regarding a previous job. Respondent asserts that it had an oralagreement with Polites by which all of the same lease terms wereextended to the job at issue here. [[5]] We need not determine whetherthat assertion is correct, because we find that Respondent was the craneoperator’s and oiler’s actual employer, regardless of whether the termsof 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 forinjury to persons, and all loss, damage or injury to property …arising in any manner out of [Polites’] operation,\” and Polites agreedthat all persons operating the crane were under its exclusivejurisdiction and control. Another provision of the lease stated thatPolites would declare the crane operator and oiler as its employees fortax purposes, and pay their withholding, workers’ compensation and unionfees [[6]]However, Michael Polites testified that Respondent and another cranecompany told him simply that they wanted him to take the crane operatorand oiler on his payroll for insurance purposes. He testified that hehad rented cranes from various companies for different projects, andthat they all required that the renter take the operator and oiler onits payroll when the crane is rented by the month, as here. He testifiedthat as a result, he had \”no choice\” about whether to take the operatorand oiler on his payroll. He further testified that the crane operatorand oiler \”might have been under my payroll but they were working forJoe Vergona and I had no control over them without Joe Vergona.\” Mr.Vergona testified that a company which signed its written lease wouldobtain the crane at a discount rate. Thus, we find that there was noagreement that Polites would have the right to control the manner andmeans by which the workers carried out their assignments. We furtherfind that Polites did not assume responsibility for regulatorycompliance in the operation of the crane, including compliance with the Act.As mentioned above, the fundamental issue under \/Darden\/ is whether thealleged employer actually had the \”right to control the manner and meansby which the product is accomplished.\” The specific testimony in thiscase indicates that, in reality, Polites did not possess that generalright. Rather, Respondent retained the right of control over the mannerand means by which the crane operator and oiler accomplished theirassignments. Quinn and Scavetta were employees, not independentcontractors. They did not exercise independent business judgment. Theirrole was to carry out assigned crane tasks efficiently. Based on thisrecord, we find that Quinn and Scavetta were Respondent’s employeesunder 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 whetherthe Respondent \”has control over the work environment such thatabatement 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 beconsidered the employer here, under the Commission’s test, based on itsretention of control over safety aspects of the crane operations.None of the additional considerations specifically mentioned in theCommission’s test suggest that Respondent was not Quinn’s and Scavetta’semployer. As to whom the employees considered to be their employer, thejudge correctly found Quinn’s and Scavetta’s testimony on this point tobe \”equivocal and therefore inconclusive.\” Polites did not have theauthority to hire, fire or modify the employment conditions of theemployees directly. To do so, it would have to go through Respondent orterminate the entire lease. Further, Polites did not establish theoperator’s wage, which was set according to the union pay scale. Thus,Respondent is properly considered the employer of the crane operator andoiler 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 notto be construed as a general holding concerning the respectiveresponsibilities of crane leasing companies and the construction firmsto whom they lease cranes.*3. Whether the judge erred in finding a violation of section1926.550(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 defectiveparts before the machine is operated again. Based on Quinn’s operationof the crane with one of its two boom stops broken, the judge found aviolation of the cited standard. Respondent argues that no violation wasshown because operating the crane with a broken boom stop was not provento be hazardous. The judge found:There is no question that the absence of a boom stop is a safety defectwithin the meaning of this standard. Both [OSHA compliance officer]Ricca and Scavetta testified that with only one boom stop in place theboom can twist as it is raised and if it is raised too far whiletwisting it can fall over. Joseph Vergona also [testified] that he wouldnot 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 theaccident, referring to the broken boom stop and saying that he did not\”think it was hazardous.\” However, Scavetta later testified under oaththat 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 abroken 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 thatRespondent cites indicates only that Quinn had told Polites on thejobsite that the \”boom kick out\” would prevent those problems. Scavettadid not testify that he agreed with Quinn. Nor was there other evidenceexplaining how the \”boom kick out\” would eliminate those problems. Quinntestified that he told Polites that he could work the crane with onlyone boom stop:He said could you work the crane, I said I could work the crane with theone stop but I said you have to go very slow and you’ve got to be realcareful, no fast work. You can’t go fast. He said that’s good enough, sowe went to work.However, that testimony shows that normal operation of the crane wouldbe hazardous with the broken boom stop. Further, as the judge found, therecord does not show the basis for Quinn’s belief that working veryslowly would be acceptable. By contrast, the record shows that if theboom stop was working, it could prevent twisting and collapse of thecrane’s boom in the event of human error, and that operating without itwas unacceptable in the opinion of Mr. Vergona as well as the complianceofficer. The preponderance of the evidence clearly shows that a brokensafety device like a boom stop was a defective part under the citedstandard. Thus, it was necessary to correct the defect before the cranewas operated again.We further find, as the judge did, that Respondent is properly chargedwith knowledge of the broken boom stop, because Quinn was aware of it. Asupervisor’s knowledge may be imputed to the employer, unless theemployer presents sufficient rebuttal evidence that the supervisor’sfailure to follow proper procedures was unpreventable.\/E.g., TampaShipyards, Inc., \/15 BNA OSHC 1533, 1537, 1992 CCH OSHD ? 29,617, p.40,100 (No. 86-360, 1992). Scavetta considered Quinn to be hissupervisor, and both Quinn and Scavetta knew that one of the two boomstops was missing. Respondent’s only argument against imputing thisknowledge is that it was not their employer. As discussed above, wereject 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 wasQuinn’s and Scavetta’s employer. Respondent, through its supervisorQuinn, 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 \”selectiveprosecution\”*The basis for Respondent’s \”selective prosecution\” claim is that,although the Secretary originally cited Polites for the same violationsfor which she cited Respondent, she withdrew those citations againstPolites before the hearing, under a settlement agreement in whichPolites admitted to certain other, less serious violations. Respondentargues that it was incumbent upon the Secretary to prosecute Polites asthe employer.The Secretary has \”broad prosecutorial discretion\” in deciding whom toprosecute for violations of the Act. \/DeKalb Forge Co.,\/ 13 BNA OSHC1146, 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 byitself is not a constitutional violation. . . . Rather, a claim ofselective prosecution is judged by ordinary equal protection standards,under which \/it must be shown that the alleged selective enforcement hada discriminatory effect and was\/ \/motivated by a discriminatorypurpose.\/ . . . 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 \/Waynev. United States\/, 470 U.S. 598, 608 (1985). Our finding above that theSecretary correctly believed, and that the judge correctly found, thatPolites was not the employer of the crane operator and oiler, disposesof Respondent’s argument. Respondent had a full opportunity to show thatPolites was in fact their employer, and failed to do so. The evidenceprovides us with no basis for questioning the propriety of theSecretary’s decision to dismiss the crane safety items at issue hereagainst Polites. We reject Respondent’s contention that it was subjectedto impermissible \”selective prosecution.\”*5. Penalty*The judge assessed a $700 penalty for the violation. In assessingpenalties, the Commission considers the gravity of the violation, thesize and violation history of the employer, and the employer’s goodfaith. 29 U.S.C. ? 666(j). As the judge noted, the result of a craneboom collapse could be death or severe injury to any employees in thearea. In fact, two fatalities resulted when the crane’s cable snapped,which initially led to OSHA’s inspection. (The issues surrounding thefailure of the crane’s cable were not directed for review.) On the otherhand, Respondent is a small employer and had no history of OSHAviolations. Also, its president showed some good faith by checking onsafety matters affecting the crane while at Polites’ worksite, includingthe condition of the cable. Considering all these factors, the $700penalty assessed by the judge is appropriate, and we affirm it.*6. Order*In summary, we affirm the judge’s finding of a serious violation byRespondent of section 1926.550(a)(5). We also affirm the $700 penaltyassessed by the judge for that violation.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: July 22, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.VERGONA CRANE CO., INC.,Respondent.OSHRC Docket No. 88-1745Appearances:Harry W. Scott. Jr., EsquireU.S. Department of LaborOffice of the SolicitorFor the ComplainantEdward S. Rosen, EsquireRosen & BermanFor the RespondentBEFORE: MICHAEL H. SCHOENFELDJudge, 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. TheSecretary 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, whichhad been leased to Polites Construction Company (\”Polites\”), was beingoperated by an unlicensed operator. The willful serious citation allegedthat the crane was defective because it was missing one of two boomstops and because of excessive wear and broken strands in the boom hoistcable. [[2\/]] Vergona timely contested both citations, a complaint andanswer were filed, and a hearing was held in New York City from June 27to June 30, 1989, at which no affected employees or representatives ofaffected employees sought party status.Both parties filed post-hearing briefs. The Secretary, however, did notfile her brief within the scheduled briefing time but rather requestedan extension of time, which I denied because the Secretary did not stategood cause for additional time. The Secretary has filed a motion forreconsideration of my order. That motion states no new grounds tojustify an extension of time and therefore also is denied. Accordingly,the post hearing brief the Secretary sought to file was returned withoutbeing considered._Jurisdiction_Vergona’s answer admits that it filed a notice of content according tothe provisions of section 10(c) [[3\/]] of the Act and that that noticeof contest was duly transmitted to the Commission. Nevertheless, Vergonadenied the jurisdictional allegations of the complaint. Since Vergonafiled a timely and properly transmitted notice of contest, theCommission has jurisdiction under section 10(c). It is also undisputedthat the crane involved in the citations was manufactured in Minnesota(Tr. 44). That is sufficient evidence to show that Vergona is engaged ina 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. Theevidence shows that the crane in question was in fact owned and leasedto 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 thatthis action must be dismissed because the Secretary named the wrongparty. I reject that argument.Joseph Vergona is president of both the respondent named here andJo-Le-Ron, as well as president of a third related company, Vergona andSons, Inc. All three companies own cranes and are engaged in the samebusiness of renting cranes to construction contractors. Vergona Crane,the named respondent, has three or four office employees who do thepaperwork for both that company and Jo-Le-Ron. Both companies are familybusinesses, and the office employees are Joseph Vergona’s relations.[[5\/]] Vergona Crane also has a full-time maintenance employee, JohnKvilesz, whereas Jo-Le-Ron has no employees. If a crane rented byJo-Le-Ron needs to be inspected or examined, Vergona Crane’s employeeKvilesz will perform that task, and an \”interoffice billing\” will beissued between Vergona Crane and Jo-Le-Ron (Tr. 1052-53, 1125-28).I conclude that the circumstances do not warrant dismissing this actionon the ground Vergona urges. Vergona Crane and Jo-Le-Ron are closelyrelated not only in their management but also in their businessoperations. Institution of the action against Vergona clearly providednotice to Jo-Le-Ron. In fact, Vergona’s counsel sent a copy of itsnotice of contest to Jo-Le-Ron. As the Commission held in _CMH Co.,_ 9BNA OSHC 1048, 1054 (No. 78-5954, 1980), a reasonable person test is tobe applied in determining whether a party not charged should have knownthat the action was intended to be brought against it.Based on the facts here, I find that Jo-Le-Ron must have known that wereit not for the Secretary’s erroneous belief that Vergona Crane owned thecrane in question, Jo-Le-Ron would have been the named employer. _SeeJohn Hill_, 7 BNA OSHC 1485 (No. 78-47, 1979). Furthermore, the issuesin this case were fully litigated, and a full defense was put in as tothe merits of the citations. Plainly, Jo-Le-Ron has not been prejudicedby the issuance of the citations and complaint to Vergona._P & Z Co.,_ 7BNA OSHC 1589, 1593 (No. 14822, 1979).The preferred method of handling this type of situation is an amendmentunder Fed. R. Civ. P. 15(c) changing the party against whom the claimsare asserted. However, the Secretary has not moved to amend. In theabsence of such a motion, I will continue to refer to the respondent asVergona, since in view of the close relationship between Vergona andJo-Le-Ron the correct identification of the cited employer is merely atechnicality._Employment Issue_Vergona’s primary contention is that it was not the employer of thecrane operator and oiler and that all matters relating to the safeoperation of the crane were exclusively within Polites’ control.Therefore, Vergona asserts that the citations must be dismissed forfailure of the Secretary to prove either that Vergona had exposedemployees or that it exercised any authority over the conditions at thesite.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, inthis case Polites, pays the lessor, here Vergona, a flat fee for use ofthe crane alone. The lessee may then obtain the necessary craneoperating employees, usually an operator and oiler, from the unionhiring hall or, if the crane comes from another jobsite, may elect touse the operator and oiler already assigned to the crane. In eitherevent, the crane workers are on the lessee’s payroll (Tr. 656-64,1059-61). Polites, however, has never gone to the union hiring hall foran operator when renting a crane from Vergona. Normally, he asks Vergonato assign either Frank Quinn or another operator, Frank McGuire, becausehe is familiar with those two individuals and knows that they are goodoperators (Tr. 698, 745-46, 1069, 1073).In this case, Polites’ job at the South Orange site commenced shortlyafter Polites finished a construction job in Hasbrouck Heights, NewJersey, where it was using a crane rented from Vergona operated by Quinnwith Bruce Scavetta as oiler. At Polites’ request, Vergona sent thecrane, together with Quinn and Scavetta, from Hasbrouck Heights to SouthOrange (Tr. 406-07, 666, 745-46, 1067-73; Ex. R-15). In accordance withthe agreement, Polites put Quinn and Scavetta on its payroll; declaredthem as its employees for tax purposes; and paid their withholding,workmen’s compensation, and union fees (Tr. 687-88). With the exceptionof 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 tothe site.The elements to be considered in determining whether an employmentrelationship exists include such criteria as who the workers regard astheir employer, who pays their wages, who has the responsibility tocontrol the workers, and who has the power to hire, fire, or modify theemployment condition of the workers. _Van Buren-Madawaska-Corp._, 13 BNAOSHC 2157, 2158 (No. 87-214, 1989). Quinn and Scavetta testified that inthis instance they considered Polites their employer, whereas in awritten statement to the Secretary’s compliance officer some monthsafter the accident, Scavetta stated that he has been employed by VergonaCrane for about two years and that his supervisor is Joseph Vergona (Tr.399-400; Ex. G-10). Although Scavetta was not asked to explain hiswritten statement in light of his testimony, his testimony and that ofQuinn indicates that they viewed Polites as their employer solelybecause Polites was paying their wages (Tr. 328, 402). However, thepurpose of the lease provision that Polites would pay the workers’ wageswas not to establish an employment relationship but was merely aconcession 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 justone of many aspects of an employment relationship, and here isrelatively insignificant, I am not inclined to assign dispositive weightto Quinn’s and Scavetta’s testimony that they believed Polites to betheir employer. I also find their testimony to be equivocal andtherefore inconclusive because neither witness clearly distinguishedbetween crane rental companies and construction companies who rentcranes. For instance, when asked to describe their work experience,Quinn testified that he had worked for both crane rental companies andcontractors (Tr. 351-52), while Scavetta stated that he had worked bothfor Vergona and for construction contractors including Polites (Tr. 377).Another factor is the right to hire, fire, or modify the employmentcondition. Michael Polites, president of Polites Construction, testifiedthat he could not fire Quinn or Scavetta; if he wanted to get rid of theoperator or oiler, he would either have to ask Vergona for differentworkers or terminate the entire lease. Polites also did not establishthe 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 thehazards can be obtained.\” _Van Buren-Madawaska,_ 13 BNA OSHC at 2159.The record here shows that ultimate authority over the worksite forpurposes of safety of operation of the crane was vested in Vergona.Michael Polites or his supervisors told Quinn what loads to move andwhere to lift them, but that was the extent of Polites’ instructions toQuinn. Once Polites ordered a lift, Quinn would determine how to performthe lift and how to swing the boom. Quinn also had authority to refuseto perform a lift if he thought it would be unsafe. For instance, whenit 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 aboutcranes or how to maintain them, has never operated or performedmaintenance on a crane, and is not familiar with OSHA crane standards(Tr. 723). While Polites would pay for routine maintenance andlubrication of the crane as well as for replacement of some parts, herelied on Vergona to perform necessary maintenance (Tr. 659-60, 723).Joseph Vergona testified that all matters relating to maintenance andsafe operation of the crane are the responsibility of the crane operatorand oiler (Tr. 1078-79). That Vergona rather than Polites exercisedauthority over the site with respect to the safety of crane operationsis aptly demonstrated by the circumstances surrounding the allegationsthat the crane was not in a safe operating condition.When the crane was sent to Polites’ worksite, it had been operating forabout six months on other sites. Because the lifespan of a boom cablenormally is not much greater than six months, Joseph Vergona toldScavetta to examine the cable for signs of wear. Both Scavetta and Quinninspected the cable daily while standing on top of the crane cab, andQuinn performed a more thorough inspection on the Monday before theaccident (January 18) when he lowered the crane boom to the ground andwalked along it. Both Quinn and Scavetta found that the cable wassomewhat worn and had a few broken strands, indicating nothing more thannormal wear and tear. It was Scavetta, however, who assumed the role ofliaison between Vergona and Polites. Because the cable had been in usefor at least six months, Scavetta informed Polites’ superintendents thatit should be changed. Since replacing the cable would take the crane outof service, Scavetta attempted to arrange with Polites a mutuallyconvenient date for the cable change. He was unsuccessful. Over atwo-week period before the accident, the cable change was scheduled andrescheduled 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 anotheropinion as to its condition. He told Kvilesz that Polites wasprocrastinating and that if Kvilesz concluded that the cable needed tobe changed \”we’ll take further steps and do it quicker than what they’re[Polites] trying to schedule\” (Tr. 1109). He made essentially the samestatement to Scavetta as well, telling him that if the cable had to bechanged, Scavetta should go ahead and change it without regard toPolites’ preferences (Tr. 390, 1088).Kvilesz went to the site one or two weeks before the accident. As didQuinn and Scavetta, Kvilesz found some broken wires which he did notconsider serious, but he felt that the cable should be replaced withinthe next couple of weeks (Tr. 1083, 1086-87, 1154, 1170). The cablechange was eventually scheduled for the Monday before the accident, wascancelled, 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 becomehazardous, 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 ultimatecontrol relates to the boom stop. A boom stop is an attachment to theboom that works along the principle of a shock absorber. Its purpose isto prevent the boom from going over backwards by keeping it from risinghigher than its center of gravity (Tr. 55-56). About one week before theaccident one of the crane’s two boom stops became bent, forcing Quinn tostop the crane. Michael Polites, who came over to find out why the cranewas not operating, asked if the stop could be repaired or if he shouldarrange for another crane. Quinn and Scavetta replied that they couldfix the stop and another crane would not be necessary. A few days laterthe stop bent again, and again Polites or his superintendent asked if itwas repairable. On the Friday before the accident the other stop bentbut Quinn could not straighten it. Quinn then told Polites that thecrane could be operated with only one boom stop and also explained thatthe crane had an additional safety device called a \”kick out\” that wouldhelp prevent the boom from going over backwards. [[7\/]] However, Quinndid advise Polites that he would have to move the boom slowly andcarefully and would not be able to work fast. Polites agreed that thatwould be satisfactory (Tr. 332-35, 392-95, 418, 669-70). Politestestified that he did not know anything about boom stops and relied onwhat Quinn told him (Tr. 728, 732-34).When the accident occurred, Quinn telephoned Vergona’s office to reportthat Vergona equipment had been damaged. He was not able to speak toJoseph Vergona directly and went home. Thereafter Joseph Vergona calledQuinn 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 thecrane. However, mere operational control of a crane is the not solefactor 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 ofwhether the crane was in safe operating condition, Polites did notexercise control over Quinn and Scavetta. Joseph Vergona and not MichaelPolites informed Scavetta that the cable should be inspected for wearand replaced if necessary. Vergona also instructed Scavetta that if asafety hazard existed, the cable would be changed without regard toPolites’ scheduling preferences, and Scavetta’s testimony indicates thathe would have complied with such a directive from Vergona. Similarly,Polites asked Quinn and Scavetta for their opinion regarding the boomstops, leaving the decision whether to operate the crane entirely withintheir discretion. I find that Polites relied on Quinn and Scavetta toadvise him of any matters pertaining to the safety of the crane and thathe gave them no instructions in that regard. _See Sasser Electric &Manufacturing Co., _11 BNA OSHC 2133 (No. 82-178, 1984), _aff’d,_ 12 BNAOSHC 1445 (4th Cir. 1985) (unpublished) (discussion of employer’s rightto rely on expertise of another). I also find that Vergona wasresponsible to insure that the crane was properly maintained and in safeoperating condition and that Vergona had ultimate authority to directQuinn and Scavetta on safety matters. The control exercised by Vergonawith respect to safety matters at the site establishes that Vergona andnot 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 craneoperator’s license and therefore had failed to pass an examination asrequired by ANSI standard B30.5-1968. [[9\/]]Quinn had received a license in 1963 when the New Jersey state licensingprogram began, but his license lapsed in 1980 or 1981. He testified,however, that he currently has a license. At the time of the inspectionhe also informed the Secretary’s inspector, Louis Ricca, that he had alicense, but was unable to produce it. Ricca also testified that thestate, which keeps licensing records for no longer than six years, hadno record of a license issued to Quinn over the six years preceding theaccident (Tr. 60-61, 274, 322, 350).Proof that an employer has knowledge of conditions that fail to complywith 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 theemployer had actual knowledge of the violative condition or that theemployer could have known of the violative with the exercise ofreasonable diligence. _Chapman Construction Co._, 9 BNA OSHC 1175, 1177(No. 76-2677, 1980). Quinn testified that none of his employers wereaware that his license had lapsed (Tr. 322). Joseph Vergona had knownQuinn from at least 1975, when Quinn was working for Hoffman Crane. Heregarded Quinn as a qualified operator. Ricca also testified that hefound nothing during his investigation to indicate that Quinn was notexperienced (Tr. 274). Vergona did not ask Quinn whether he had a validlicense but believed that Quinn did because it is the operator’sobligation to maintain his license in good standing. Vergona also feltthat 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 nothave 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. Ialso find, though, that Vergona was not obligated to specificallyinquire whether an experienced operator sent from the union had a validlicense. Therefore, Vergona could not reasonably have known that Quinn’slicense had lapsed.The issue presented here, however, is not whether Quinn had a validlicense but whether he had passed an examination as required by thestandard. When he applied for his license Quinn was only given somequestions to answer; he was not required to operate a crane as part ofhis examination (Tr. 350). That does not comply with the cited sectionof the ANSI standard, which calls for a \”practical operatingexamination\” that is \”limited to the specific type equipment\” that willbe operated. The only reasonable interpretation of this language is thatthe operator must prove by an actual physical demonstration that he iscompetent to operate the equipment in question. However, I find that noviolation was established because the Secretary has failed to presentany evidence to show that Vergona knew or reasonably could have knownthat Quinn had not been given the type of examination required by thestandard.In addition to the lack of proof of employer knowledge, I vacate thisitem as de minimis. Quinn has been operating cranes since 1960 (Tr.321). The fact that he was not required to show his competence tooperate a crane when he first received his license in 1963 has anegligible, if any, relationship to the safety of the crane operations25 years later at the worksite in question here. _ClevelandConsolidated, Inc.,_13 BNA OSHC 1114, 1118 (No. 84-696, 1987)._Citation No. 2, Item 1Alleged Willful Serious Violation of 29 C.F.R. ? 1926,550(a)(5) _The Secretary alleged that Vergona violated this standard by allowingthe crane to operate without replacing the broken boom stop.[[10\/]]There is no question that the absence of a boom stop is a safety defectwithin the meaning of this standard. Both Ricca and Scavetta testifiedthat with only one boom stop in place the boom can twist as it is raisedand 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 tooperate with only one boom stop (Tr. 1080).[[11\/]]However, Vergona further testified that although Scavetta notified himwhen the boom stops bent and were restraightened, neither Quinn norScavetta ever told him that a stop had broken and that the crane wasbeing operated with only one boom stop (Tr. 1080, 1093-94). Histestimony is consistent with that of Quinn, who stated that he neverspoke to Vergona about the missing stop and that Scavetta informedVergona on the first two occasions when the stop bent (Tr. 335, 346).Scavetta, for his part, testified that he could not recall whether headvised Vergona that they were using only the one stop (Tr. 394-95). Onthe other hand, Michael Polites testified that he asked Joseph Vergonawhether he should make arrangements to get another crane, and thatVergona told him the crane could be operated with one stop if Quinn tookit easy. He also testified that at Quinn’s suggestion he had one of hisdrivers take the broken stop to Vergona’s yard (Tr. 669-71, 729-32).Vergona expressly denied that Polites ever asked him about operating thecrane with only one stop and that no one brought the boom stop from thePolites site to the Vergona yard (Tr. 1080).I have carefully weighed the conflicting evidence as to whether JosephVergona himself was aware that the boom stop had broken. [[12\/]] Inevaluating this testimony, I have taken into account the undisputedevidence that when Vergona realized that the cable was approaching theend of its useful life, he instructed his employees to inspect andchange the cable if they found it to be excessively worn. Those factsdemonstrate that Vergona is a safety-conscious individual who wasconcerned that the crane be in safe operating condition. To concludethat Vergona know about the broken boom stop but took no measureswhatever to correct that condition would be completely inconsistent withhis actions regarding the hoist cable. It is more a reasonable inferencethat Vergona allowed the crane to continue to operate with only one stopbecause he did not know that the other stop had broken. Accordingly, Ifind Vergona’s testimony that he was unaware of the broken stop to becredible. [[13\/]]However, while I find that the Secretary failed to show that JosephVergona personally had knowledge that the boom stop had broken, Vergonaas the employer must be charged with Quinn’s knowledge. After Quinnconferred with Polites’ personnel regarding the lifts to be made withthe crane, he would instruct Scavetta where to move the crane and giveScavetta directions for backing up the crane. Scavetta considered Quinnhis supervisor for this purpose Quinn also had authority to instructScavetta to inspect the crane and its cable and could direct Scavetta tomake arrangements to get a new boom stop (Tr. 405-06). These facts aresufficient to show that Quinn was a supervisory employee whose knowledgeis imputable to his employer. _Iowa Southern Utilities_ _Co._, 5 BNAOSHC 1138 (No. 9295, 1977). Because Quinn obviously knew that the stophad broken and that the crane was being operated in that condition,Vergona as Quinn’s employer is charged with knowledge of the violativeconditions 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 evidencefails to show that Vergona’s failure to replace the boom stop or toprevent the crane from being operated with only one stop was due to anintentional disregard for the requirements of the Act or plainindifference to employee safety._Keco_ _Industries, Inc., _13 BNA OSHC1161, 1163 (No. 81-263, 1987). As I have found, Joseph Vergona crediblytestified that he would have taken appropriate action had he known ofthe condition of the boom stop. Quinn’s belief that one boom stop wasnot unsafe if he operated the crane slowly and that the \”kick out\” wouldcompensate for the missing boom stop does not establish willfulness. TheSecretary did not present any evidence to show that there could be norational basis for Quinn’s belief that slow operation and the kick outwould alleviate any hazard. _See Wright & Lopez, Inc.,_ 10 BNA OSHC1108, 1114 (No. 76-256, 1981) and cases cited therein (good faith beliefnegates willfulness). Nor has the Secretary presented any other factsfrom which I could conclude that Quinn’s state of mind was one ofdisregard or indifference to the requirements of the standard.Accordingly, the Secretary has not established a willful violation onthe facts here. _Brock v. Morello Brothers Construction_, 809 F.2d 161,164 (1st Cir. 1987)._Citation No. 2, Item 2Alleged 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 hoistcable was defective and should have been taken out of service. [[14\/]]The Secretary claimed that the cable contained an excessive number ofrandomly distributed broken wires in one lay (subitem 2(a)) and brokenwires in one strand in one lay (subitem 2(b)) and also had numerous flatspots, exhibiting excessive wear (subitem 2(c)) [[15\/]]According to Ricca, wire rope consists of individual wires formed intostrands, which in turn are wrapped around a center core. A rope of thesize in question here has six strands. A \”lay\” refers to the lateraldistance along one twist of a strand. At Ricca’s request, Joseph Vergonacut a piece of cable about two feet long from the crane. This piece orcable is shown in photographic exhibits G-1A, 1B, and 1C, and was itselfadmitted as exhibit G-1. It had been coated with a dressing that wasblack in color which Ricca thereafter removed with pressurized hot water(Tr. 48-51, 96, 272-73, 300-01, 362). Based on an examination of thiscut section of the cable, Ricca observed numerous breaks in individualwires, both randomly throughout all the strands in a given lay as wellas multiple breaks in one strand in one lay. He counted 23 randomlydistributed 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 fromthe crane. It has a large number of broken wires within one or two-inchareas, clearly in excess of the maximum permitted under the standard.Next to a strand containing a number of obvious large breaks is a strandwith 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 thebroken strands at several locations on the crane gantry where thepulleys that operate the boom are located. Even where the cable stillhad grease on it he was able to count more than six broken wires in onelay and more than three in one strand (Tr. 765-69; Ex. G-14). Savko alsotestified that the cut section of the cable shows uniform wear from oneend to the other. After Ricca cleaned the cut section, Savko used acalipers to measure the diameter of the wires. Based on thatmeasurement, he estimated that individual wires had been worn down to 50percent of their original diameter. In his opinion, a cable should bechanged 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 lightlyand slowly running his hand along it (Tr. 361-62). Scavetta did thesame, 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 ashe moved his hand along the wire. He found no more than one break in thewire every one to three feet (Tr. 380, 412, 424). Kvilesz, who did run arag along the cable, testified that in his experience, the rag willpickup any \”burrs\” that are present, which will indicate whether thereis a problem in the cable. While he did not see an excessive number ofbroken wires, he observed smaller breaks similar to those appearing onexhibit G-1 but did not count them and therefore did not know how manythere may have been. He has been inspecting cables for about threeyears, and Vergona has given him some instruction in conducting suchinspections. However, he is not familiar with the OSHA requirements asto 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 specifictraining in, and was not aware of, the OSHA standards but followedprocedures operators have established over the years (Tr. 357).Scavetta, who has been an oiler for three years, had been taught that acable should be changed if it has a \”group\” of wires broken within a6-inch to 1-foot area (Tr. 377-79, 425). Neither Quinn, Scavetta, norKvilesz testified regarding wear or thinning of the wires as opposed tobroken wires.Savko gave his opinion that Quinn and Scavetta had performed aninadequate 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 havewiped the wire with a rag and specifically looked for any additionalbreaks. He also felt that a rag would detect more broken wires thanwould a bare hand because the rag would catch on breaks where as aperson rubbing his hand lightly over a cable would be likely to misssome breaks (Tr. 786-87, 1015-18). Savko did not testify regardingKvilesz’s inspection..Quinn, Scavetta, and Kvilesz agreed that a cable in the condition ofexhibit 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 cutsection accurately represents the condition of the cable before theaccident or whether the wires in this sample were broken as a result ofthe accident. Some of the testimony centered on the cable pulleys, whichwere severely bent, distorted, and scratched after the accident (Ex.R-2, R-3, R-4). Various witnesses agree that the damage to the pulleysindicates what was happening to the cable at the time of the accident,but there is some disagreement as to specifically what conclusionsshould be drawn from the condition of the pulleys or from the fact thatexhibit G-1 has a curve or twist in it.It is undisputed that the hoist cable parted at one location. ExhibitR-1 is a photograph of a torn, frayed cable end. Savko concluded thatthe pulleys were damaged when the flared-out broken end shown in exhibitR-1 traveled through the pulleys at a high rate of speed. Savko believedthat if exhibit G-1 had jumped out of the pulley it would have receivednicks and gouges, which it did not have. Savko stated that exhibit G-1was bent simply from running through the sheave and that the cable didnot leave the sheave after it broke because he saw the cable still inthe 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 bymetal-to-metal wear that develops over a period of time. It ischaracterized by a flattening in the shape of individual wires. Atension break, on the other hand, has a distinctive \”cup\” and \”cone\”appearance reflecting a wire that has been pulled on in two differentdirections. When the tension is released, the broken wire ends spring upand back. The wires in exhibit G-1 have the flattened appearance of afatigue break rather than the cup and cone characteristic of a tensionbreak 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 bythe cable running outside the flange of the pulleys. He felt that thebreaks shown in exhibit G-1 could have been caused by wear or could haveresulted from the cable jumping off the pulley, but he also stated thatthe corkscrew shape of exhibit G-1 indicates that the cable ran over asharp edge, such as a pulley housing. On the other hand, Vergonaconceded that the rope crossing over the sheaves and being draggedacross the sharp points of the housing could have caused the frayed outcable ends shown in exhibit R-1 (Tr. 1095-05, 1150-51).Quinn likewise testified that the cable jumped out of a sheave andshredded, with exhibit R-1 showing the shredded area and G-1 showingwhere the cable jumped the sheave. He also stated that the curl in theexhibit G-1 cable section could only be caused by jumping and thatrunning within the sheave would not be capable of causing the conditionsshown 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 thatmatter, equally unqualified–to give an opinion as to whether the damagecontained in exhibit G-1 existed prior to or resulted from the accident.Savko has been an OSHA inspector and supervisor since 1975, and hasconducted well over 200 inspections of cranes. Previously, he worked forover 15 years in the mining industry performing daily inspections of thecables, clamps, and pulleys on a personnel hoist. He had experienceinvestigating accidents where a boom lifting cable had broken. On theother hand, he has no college education and in particular is not atrained metallurgist. He also does not know whether the technology andmethodology of wire ropes has changed over the years (Tr. 750-60,770-71, 792, 1031). Savko’s level of expertise is not appreciablydifferent from that of Vergona, who has 20 years experience with cranesin 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 exhibitG-1, on which areas where wires have been flattened are quite visible.It is reasonable and logical to conclude that this flattening indicatesthat the cable wires have worn down over a period of time, and thatconclusion also is consonant with Vergona’s concern for the length oftime the cable had been in use. Savko’s judgment that the cable strandswere broken before the accident also is corroborated by Kvilesz’stestimony that he found some broken wires when he inspected the cableone or two weeks prior to the accident. Vergona’s testimony, on theother hand, was equivocal in that he testified that either wear ormovement outside of the pulley could have caused the conditions inexhibit G-1. Furthermore, Vergona’s admission that the torn cable endsshown in exhibit R-1 could have resulted from the cable moving acrossthe pulley housing area supports Savko’s view that movement outside ofthe pulley was not a factor in the condition of exhibit G-1.[[16\/]]Finally, I discount Quinn’s testimony on this subject because he statedno reasons to support his opinion.Accordingly, I find that the cable had an excessive number of brokenwires before the accident. [[17\/]] The evidence also shows that visuallyinspecting the cable after wiping it with a rag is an appropriate andreasonable method for detecting broken wires. In fact, that is thetechnique Kvilesz himself used, except that Kvilesz did not count allthe broken wires he saw. I therefore, find that with the exercise ofreasonable diligence Vergona could have known of the number of brokenwires. 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 Secretaryestablished that Vergona’s employees had not been instructed in theproper method for inspecting a cable for breaks and had not been madeaware of the requirements of the OSHA standard pertaining to the maximumpermissible number of broken wires. However, the Secretary has notpresented any evidence to show that Vergona acted out of disregard orindifference to the requirements of the standard. In fact, as indicatedabove, Joseph Vergona was concerned that the cable was becomingexcessively worn and needed replacement. Simple lack of diligence orrelessness in failing to discover a violation does not constitutewillfulness. _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 inexhibit G-1. However, Savko’s observations and conclusions about theamount of wear were based on his examination of the cable after it hadbeen removed from the site and thoroughly cleaned with pressurizedwater. There is no evidence from which I can conclude that wear orflattening of the wires would have been evident when the cable wascovered with grease, nor did the Secretary show that wiping the cablewith a rag would be sufficient to reveal this type of wear. Accordingly,the allegation in subitem 2(c) has not been proven due to theSecretary’s failure to show that Vergona knew or reasonably could haveknown 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 inits concern for the condition of the cable. However, violations forhaving defective crane components are of high gravity, as exemplified bythe fact that two fatalities occurred in this case. I assess a penaltyof $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 issueshave been made above. Fed. R. Civ. P. 52(a). All proposed findings offact and conclusions of law inconsistent with this decision are denied._CONCLUSIONS OF LAW_1) Vergona Crane Company, Inc. was at all times pertinent hereto anemployer engaged in a business affecting commerce within section 3(5) ofthe Act, and the Commission has jurisdiction of the parties and thesubject matter.2) Vergona was at all times pertinent hereto required to comply with therequirements 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 areappropriate:a. Citation no. 2, item 1. . . .$700b. 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 VACATEDMICHAEL H. SCHOENFELDJudge, OSHRC FOOTNOTES:[[1]] That standard, promulgated by the Secretary of Labor’sOccupational Safety and Health Administration (\”OSHA\”), provides:The employer shall designate a competent person who shall inspect allmachinery and equipment prior to each use, and during use, to make sureit 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 affectingcommerce, who has employees, but does not include the United States orany State or political subdivision of a State.(6) The term \”employee\” means an employee of an employer who is employedin a business of his employer which affects commerce.[[3]] As the judge mentioned, even if Jo-Le-Ron had been the onlyappropriate entity to cite, an amendment of the pleadings to name it asthe employer would be permissible under the principles of Federal Ruleof Civil Procedure 15(c). That rule applies to Commission proceedingsunder 29 C.F.R. ? 2200.2(b). Amendment of the pleadings to change thename of the party sued is permitted under Fed. R. Civ. P. 15(c) when thesame 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 itwould not be prejudiced in defending its position on the merits; and (2)knew or should have known that, but for a mistake concerning theidentity of the proper party, the action would have been brought againstit. The 1991 amendment to Fed. R. Civ. P. 15(c) extends the\”relation-back period\” for such an amendment to at least 120 days afterthe limitations period for bringing the action. Pub.L. 102-198, ? 11(a),105 Stat. 1626 (1991). \/See generally\/ 6A C. Wright, et al., \/FederalPractice and Procedure,\/ ? 1498(1992 Supp.).The Rule 15(c) criteria have been met here. Jo-Le-Ron’s responsibilitywould be based on the same conduct, transaction and occurrences asRespondent’s responsibility. Jo-Le-Ron received full and timely noticeof the institution of the action when Mr. Vergona received the citation.Furthermore, it knew or should have known that the action would havebeen brought against it except for the alleged mistake as to whichVergona entity leased the crane. (A citation is not a \”summons\” or\”complaint\” within the meaning of the Federal Rules. \/See, e.g., P & ZCo.,\/ 7 BNA OSHC 1589, 1591, 1979 CCH OSHD ? 23,777, p. 28,829 (No.14822, 1979). However, no stricter rule for \”relation back\” of anamendment is warranted for a citation. \/See, e.g., CMH Co.,\/ 9 BNA OSHC1048, 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’ constructionjob to change the cable does not indicate that Respondent lacked controlover the crane, operator or oiler. Mr. Vergona’s testimony shows that hewas concerned about finding a time convenient to Polites to change thecable. His concern for Polites’ convenience is understandable in lightof the companies’ business relationship and the lack of urgency thatVergona’s personnel conveyed to him about changing the cable. Thus,based on this record, Respondent retained the authority to replace thecrane’s cable at its discretion.[[5]] Polites and Respondent did sign a written lease concerning thejobsite in question here, but not until after the alleged violationoccurred. That lease contained essentially the same terms as theprevious written lease. There was no evidence that the subsequent leasewas effective retroactively.[[6]] In Respondent’s behalf, it also bears noting that Polites’ regularbusiness was construction, and it had hired cranes from Respondent, orcompanies related, to Respondent, on numerous prior occasions.[[7]] Respondent argues that this case is indistinguishable from arecent case in which a Commission judge found that the crane leasingcompany was not the crane operator’s employer. \/United Crane & ShovelServ.\/, 88 OSAHRC 20\/A12 (No, 87-1331, 1988) However, the situationthere was actually quite different. A contractor leased a crane fromUnited on a bare rental lease, but hired the crane operator entirelyindependent from United. No relationship was shown between United andthe crane operator. By contrast, in this case there was a long-termemployment relationship between Respondent and the crane operator andoiler, and Respondent retained control over the manner and means bywhich they performed their assignments.[[8]] There is no need in this case to permit this as a furtheropportunity to present evidence or argument on the employment issue, inlight of \/Darden\/ and his parties have had a full opportunity topresent evidence on any factors that relate to that issue, includingwhether Respondent had a right of control over the manner and means bywhich the crane operator and oiler performed their work. The extensivehearing produced substantial evidence on each of the factorsspecifically mentioned in \/Darden and Van Buren\/. Further, the briefs onthe issue have been comprehensive.[[9]] It can be argued that Respondent also reasonably could have knownthat the crane was being operated in violation of the cited standardbecause of a frayed cable. Respondent was aware that the crane’s cablewas fraying, and intended to replace it. Before it was replaced,however, the cable snapped, resulting in a fatal accident. Because ofour disposition of the knowledge issue, we need not and do not addressthis issue.[[1\/]] Originally, citation no. 2 alleged only willful violations. Thecomplaint amended that citation to allege that the willful violationswere 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 atimely notice of contest, \”the Secretary shall immediately advise theCommission of such notification, and the Commission shall afford anopportunity for a hearing….\”[[4\/]] This section provides: \”The term \”employer\” means a personengaged in a business affecting commerce who has employees, but does notinclude the United States or any State or political subdivision of a State.\”Joseph Vergona, Vergona’s president, testified that Vergona hasemployees (Tr. 1125-26). There is a dispute, however, as to whetherVergona was the employer of the crane operator and oiler on the jobsitein question here and whether it was responsible for their actions. Thatissue is discussed later in this decision.[[5\/]] The name \”Jo-Le-Ron\” is an amalgam of Joseph Vergona’s children’snames (Tr. 716).[[6\/]] Vergona explained that on Friday, January 15 Pete Cronk, Polites’ironworker superintendent, called to cancel the cable change that hadbeen scheduled for the following Monday. Consequently, Vergona toldScavetta not to bother picking the replacement cable, which had beenloaded on a truck at Vergona’s yard. Then on Monday morning Cronk calledVergona to ask if the cable could be changed that afternoon. Vergonatold Cronk that he did have anyone to take the cable to the worksite butthat Cronk could pick up the cable himself (Tr. 1088-91). Polites’ viewof these events is that Vergona prevented the scheduled change becausehe refused to bring the cable to the site (Tr. 743).The parties dispute whether Polites or Vergona was responsible for thecancellations and postponements that eventually resulted in the cablenot being changed. I express no opinion on this question because it isirrelevant to the issue here–which company, Vergona or Polites, hadultimate authority and control over the crane with regard to safety matters.[[7\/]] A \”kickout\” is an arm alongside the operator’s cab that precludesthe 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 DeBenedettoheld that United Crane, which leased a crane to a contractor, EasternSteel Erectors, on a \”bare rental\” agreement was not the employer of thecrane operator. That case is factually distinguishable. United Crane didnot exercise any control over the operator; in fact, Steel Erectorshired the operator directly without any involvement by United Crane, andthere is no evidence to indicate that the lessor had any contactwhatever with the operator.[[9\/]] The Secretary’s standard, 29 C.F.R. ? 1926.550(b)(2), inpertinent part, requires as follows:All crawler, truck, or locomotive cranes in use shall meet theapplicable requirements for design, inspection, construction, testing,maintenance, and operation as prescribed in the ANSI B30.5-1968, SafetyCode for Crawler, Locomotive and Truck Cranes. . . .The referenced ANSI standard provides, in pertinent part, as follows:5-3.1.2 Qualifications for Operatorsa. Operators shall be required to pass a practical operatingexamination. Examination shall be limited to the specific type equipmentwhich he will operate.[[10\/]] The cited standard requires as follows:The employer shall designate a competent person who shall inspect allmachinery and equipment prior to each use, and during use, to make sureit 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 safelywith only one boom stop if it was operated slowly and that the \”kickout\” would compensate for the missing boom stop. The record does notshow the basis for Quinn’s belief. The preponderance of the evidenceestablishes that operating with only boom stop in place is not safe.[[12\/]] Although Quinn testified that he had never discussed a boom stopwith Vergona, he gave a contrary statement to Ricca during theinspection. In his written statement (Ex. G-9), Quinn told Ricca that hehad advised Vergona of the broken boom stop and that Vergona instructedhim to continue working while Vergona made arrangements to bring a newstop to the site.At the hearing Vergona’s counsel questioned Quinn about this statement.Quinn expressly testified that the statement was incorrect and that hehad never spoken to Vergona about the boom stop. He explained that whathe had meant to say was that all messages to Vergona were relayedthrough 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 withrespect to the cable. Therefore, it is not inconceivable that Scavettawould have been assigned the responsibility to keep Vergona informedabout the condition of the boom stops as well. Furthermore, Scavetta didin fact talk to Vergona about the boom stops insofar as he told Vergonawhen the stops became bent. The Secretary has failed to present anyevidence from which I can reasonably conclude that Quinn’s explanationof his written statement is not credible.[[13\/]] During his inspection, compliance officer Ricca noticed one boomstop lying on the ground next to the crane (Tr. 43). If that had beenthe only boom stop present at the site, Ricca’s observations would havesupported Polites testimony that he took the other boom stop toVergona’s yard. Unfortunately, Ricca was not asked whether the otherboom stop was still on the crane or whether he saw only one stop. Riccaalso testified that Quinn told him during the inspection that the boomstop he saw had been removed before the accident and placed against thecrane outrigger where Ricca observed it (Tr. 46). That statementsupports a conclusion that the broken boom stop had not been removedfrom the site.[[14\/]] Although the complaint amended the citation to allege that item2 is serious as well as willful, the allegation of seriousnessexplicitly 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 includean allegation that the violation is serious. I conclude that theomission of such an allegation with respect to subitem 2(c) is anoversight and that the Secretary intended to allege that all threesubitems 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 followingconditions exist:(i) In running ropes, six randomly distributed broken wires in one layor three broken wires in one strand of one lay;(ii) Wear of one-third the original diameter of outside individualwires. Kinking, crushing, bird caging, or any other damage resulting indistortion of the rope structure….[[16\/]] However, Savko’s testimony is not totally credible. Hisstatement that he observed the cable still in the flange of the pulleycannot be reconciled with his opinion that the pulleys were damaged whenthe broken end of the cable traveled through them.[[17\/]] I base this finding not only on the physical evidence of ExhibitG-1 but also on Savko’s testimony of his examination of the cable on thecrane and on Kvilesz’s testimony of the breaks he saw when he inspectedthe cable one or two weeks before the accident. However, Ricca statedthat the citation subitems relating to the broken wires were basedsolely on Exhibit G-1 (Tr. 96).[[18\/]] Although Vergona was previously cited for an alleged violationof the crane standards (Tr. 761- 2; Ex. G-5), there is no evidence as tothe final disposition of that citation.”