“Docket No. 88-1745 SECRETARY OF LABOR, Complainant, v. VERGONA CRANE CO., INC., Respondent.OSHRC Docket No. 88-1745DECISIONBefore: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:At issue in this case is whether the judge erred in findingthat Vergona Crane Co., Inc.(\”Respondent\”), violated the Occupational Safety andHealth Act (\”the Act\”), 29 U.S.C. ?? 651-78, by failing to comply with thecrane safety standard at 29 C.F.R. ? 1926.550(a)(5).[[1]] The basis for the judge’sfinding was that a crane operated by Respondent’s employees was used with a broken boomstop on a construction project in South Orange, New Jersey, while it was leased to PolitesConstruction Co. (\”Polites\”) Respondent contends that it is not responsible forthe violation because it was not the employer of the workers assigned to the crane.Respondent also contends that operating the crane with a broken boom stop was not provento be hazardous, and that it was subjected to impermissible \”selectiveprosecution.\” For the reasons set forth below, we affirm the judge’s finding thatRespondent is responsible for the violation, and we reject the Respondent’s\”selective prosecution\” claim.1. Whether Respondent was properly cited as theemployer, in light of evidence that Jo-Le-Ron, Inc. actually leased the crane to PolitesOnly an \”employer\” may be cited for a violation ofthe 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 that it was not theemployer of the crane operator and oiler because, among other things, it was not thelessor of the crane. The judge found that, although there was some evidence suggestingthat Respondent was the crane’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 foundthat Respondent nevertheless was properly cited as the employer in the circumstances. Weagree.Jo-Le-Ron and the Respondent had the same president, Joseph Vergona. The two companiesoperated out of the same office, and Jo-Le-Ron had no staff, but rather relied on theRespondent’s staff to perform its paperwork. As Respondent has acknowledged, it is\”owned by a member of the Vergona family,\” and \”shares of Jo-Le-Ron,Inc…are likewise owned by a member or members of the Vergona family.\” Jo-Le-Ron’sname is a composite of Mr. Vergona’s children’s names. To further illustrate howinterrelated the two entities were, the lease on which the Respondent relies to show thatJo-Le-Ron was the crane’s lessor was signed by Joseph Vergona for \”Vergona Crane Co.,Inc.\” At the top, Jo-Le-Ron’s name was typed in as lessor. Another written lease forthe same crane, entered into two days after the alleged violation, was between\”Vergona Crane Co., Inc.\” and Polites. In addition, the name on the side of thecrane was \”Vergona Crane Co.\”Under Commission precedent, two related employers are regardedas a single entity where, as here, they share a common worksite, have interrelated andintegrated operations, and share a common president, management, supervision, orownership. E.g., Trinity Indus., Inc., 9 BNA OSHC 1515, 1518-19, 1981 CCH OSHD ?25,297, p. 31,322 (No. 77-3909, 1981). Even if Jo-Le-Ron technically was the crane’slessor at the time of 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 than Polites, wasthe employer of the crane operator and oiler Respondent contends that Polites, which leased the crane, was the crane operator’s andoiler’s actual employer. A key consideration in determining whether Respondent was theactual employer of particular workers is whether it had the right to control the mannerand means by which they carried out their work. The Commission has considered a number offactors when making such a determination, including the following:1) Whom do the workers consider their employer? 2) Who pays the workers’ wages?3) Who has the responsibility to control the workers?4) Does the alleged employer have the power to control the workers?5) Does the alleged employer have the power to fire, hire, or modify the employmentcondition of the workers?6) Does the workers’ ability to increase their income depend on efficiency ratherthan initiative, judgment, and foresight?7) How are the workers’ wages established?Van Buren-Madawaska Corp., 13 BNA OSHC 2157, 2158, 1989 CCH OSHD ? 28,504, p.37,780 (No. 87-214, 1989). The Supreme Court recently held that the term\”employee\” in a federal statute should be interpreted under common lawprinciples, unless the particular statute specifically indicates otherwise. NationwideMutual Insurance Co. v. Darden, 112 S.Ct. 1344,1348 (1992). See Loomis CabinetCo., 15 BNA OSHC 1635,1637 (No. 88-2012, 1992). The Court noted that all aspects ofthe relationship are relevant, but that the central inquiry is as follows:In determining whether a hired party is an employee under thegeneral common law of agency, we consider the hiring party’s right to control the mannerand means by which the product is accomplished. Among the other factors relevant to thisinquiry are the skill required; the source of the instrumentalities and tools; thelocation of the work; the duration of the relationship between the parties; whether thehiring party has the right to assign additional projects to the hired party; the extent ofthe hired party’s discretion over when and how long to work; the method of payment; thehired party’s role in hiring and paying assistants; whether the work is part of theregular business of the hiring party; whether the hiring party is in business; theprovision of employee benefits; and the tax treatment of the hired party.112 S.Ct. at 1348 (quoting Community for CreativeNon-Violence v. Reid, 490 U.S. 730, 751-752 (1989) (footnotes omitted)). Thus, thecentral inquiry under both tests is the question of whether the alleged employer has theright to control the work involved. See Loomis, 15 BNA OSHC at 1638.Most of the specific factors mentioned by the Court in Dardensuggest that Polites was not the employer of the crane operator, Frank Quinn, andthe oiler, Bruce Scavetta. Those workers possessed specialized skill, and Polites gavethem no instructions except what loads to move and where to move them. The leasedequipment came from Respondent. Although the work was at Polites’ construction site, itwas performed pursuant to a contract with Respondent and was of temporary duration.Polites had no right to assign additional projects to Quinn and Scavetta, and Polites gavethem reasonable discretion as to when and how long to work.By contrast, the evidence in this particular case shows thatRespondent retained the \”right to control the manner and means by which the productis accomplished,\” and thus is properly considered the employer under the Dardentest. Based on this record, we find that Quinn and Scavetta determined the manner andmeans by which Polites’ assignments would be accomplished, subject to Mr.Vergona’ssupervision.Both Quinn and Scavetta had a long-term association withVergona Crane Co. When Polites rented a crane from Respondent, which it had done numeroustimes, Polites normally asked Mr. Vergona to assign Quinn or another operator, FrankMcGuire, to operate it. Scavetta had worked for Vergona Crane for about two years.As to control over crane operations, the judge correctly found:Michael Polites [Polites’ president] or his supervisors toldQuinn what loads to move and where to lift them, but that was the extent of Polites’instructions to Quinn. Once Polites ordered a lift, Quinn would determine how to performthe lift and how to swing the boom. Quinn also had authority to refuse to perform a liftif he thought it would be unsafe. For instance, when it is too windy to operate safely,the operator could stop the crane, and Polites would accept the operator’s judgment.Michael Polites also testified that he does not know anythingabout cranes or how to maintain them, has never operated or performed maintenance on acrane, and is not familiar with OSHA crane standards. While Polites would pay for routinemaintenance and lubrication of the crane as well as for replacement of some parts, herelied on Vergona to perform necessary maintenance. Joseph Vergona testified that allmatters relating to maintenance and safe operation of the crane are the responsibility ofthe crane operator and oiler.(Citations to record omitted.) Mr. Vergona took responsibilityfor compliance with OSHA standards regarding the crane’s cable. He testified, \”Idon’t wait till we meet or exceed OSHA standards [before changing the cable].\” To hiscredit, Mr. Vergona kept in touch with Scavetta concerning safety matters affecting thecrane. He told Scavetta to examine the cable for signs of wear. Scavetta kept him advisedof attempts to schedule the replacement of the cable. Concerned about the delays, Mr.Vergona instructed his maintenance employee, John Kvilesz, to double-check the cable’scondition. Mr. Vergona told Scavetta that if the cable needed to be replaced more quicklythan Polites wanted, Scavetta should replace it regardless of Polites’ wishes.Safety was not the only area in which Mr. Vergona supervisedthe workers. For example, after the accident and after learning that Quinn had gone home,Mr. Vergona ordered Quinn to return to the jobsite. The evidence indicates that Mr.Vergona had an active concern for safety and responsibility in the operation of the crane.It also indicates that he exercised control over the manner and means by which Quinn andScavetta carried out the crane operations. Polites did not. [[4]]Respondent stresses the nature of its rental agreement withPolites. The judge accurately described that agreement as follows:The crane was rented to Polites under what is known in thetrade as a \”bare rental\” agreement. Such an agreement provides that the lessee,in this case Polites, pays the lessor, here [Respondent], a flat fee for use of the cranealone. The lessee may then obtain the necessary crane operating employees, usually anoperator and oiler, from the union hiring hall or, if the crane comes from anotherjobsite, may elect to use 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 tothe union hiring hall for an operator when renting a crane from [Respondent].(Citations to record omitted.) Respondent further relies on thespecific terms of a written lease that it prepared, and that Polites signed, regarding aprevious job. Respondent asserts that it had an oral agreement with Polites by which allof the same lease terms were extended to the job at issue here. [[5]] We need notdetermine whether that assertion is correct, because we find that Respondent was the craneoperator’s and oiler’s actual employer, regardless of whether the terms of the writtenlease were actually in effect. The written lease contained an indemnity clause. According toits terms, Polites agreed to assume responsibility for \”any and all claims for injuryto persons, and all loss, damage or injury to property … arising in any manner out of[Polites’] operation,\” and Polites agreed that all persons operating the crane wereunder its exclusive jurisdiction and control. Another provision of the lease stated thatPolites would declare the crane operator and oiler as its employees for tax purposes, andpay their withholding, workers’ compensation and union fees [[6]]However, Michael Polites testified that Respondent and anothercrane company told him simply that they wanted him to take the crane operator and oiler onhis payroll for insurance purposes. He testified that he had rented cranes from variouscompanies for different projects, and that they all required that the renter take theoperator and oiler on its payroll when the crane is rented by the month, as here. Hetestified that as a result, he had \”no choice\” about whether to take theoperator and oiler on his payroll. He further testified that the crane operator and oiler\”might have been under my payroll but they were working for Joe Vergona and I had nocontrol over them without Joe Vergona.\” Mr. Vergona testified that a company whichsigned its written lease would obtain the crane at a discount rate. Thus, we find thatthere was no agreement that Polites would have the right to control the manner and meansby which the workers carried out their assignments. We further find that Polites did notassume responsibility for regulatory compliance in the operation of the crane, includingcompliance with the Act.As mentioned above, the fundamental issue under Dardenis whether the alleged employer actually had the \”right to control the manner andmeans by which the product is accomplished.\” The specific testimony in this caseindicates that, in reality, Polites did not possess that general right. Rather, Respondentretained the right of control over the manner and means by which the crane operator andoiler accomplished their assignments. Quinn and Scavetta were employees, not independentcontractors. They did not exercise independent business judgment. Their role was to carryout assigned crane tasks efficiently. Based on this record, we find that Quinn andScavetta were Respondent’s employees under the Darden test.[[7]]Turning to the Commission’s test of whether a Respondent is an\”employer,\” the primary consideration under that test has been whether theRespondent \”has control over the work environment such that abatement of hazards canbe obtained.\” Van Buren, 13 BNA OSHC at 2159, 1989 CCH OSHD at p. 37,781. Asthe judge found, Respondent would be considered the employer here, under the Commission’stest, based on its retention of control over safety aspects of the crane operations.None of the additional considerations specifically mentioned inthe Commission’s test suggest that Respondent was not Quinn’s and Scavetta’s employer. Asto whom the employees considered to be their employer, the judge correctly found Quinn’sand Scavetta’s testimony on this point to be \”equivocal and thereforeinconclusive.\” Polites did not have the authority to hire, fire or modify theemployment conditions of the employees directly. To do so, it would have to go throughRespondent or terminate the entire lease. Further, Polites did not establish theoperator’s wage, which was set according to the union pay scale. Thus, Respondent isproperly considered the employer of the crane operator and oiler under the Commission’stest, as well as under the Darden test. [[8]]Our decision is based on the particular evidence in this case.It is not to be construed as a general holding concerning the respective responsibilitiesof crane leasing companies and the construction firms to whom they lease cranes.3. Whether the judge erred in finding a violation ofsection 1926.550(a)(5)Section 1926.550(a)(5) (supra n.1) requires that acompetent person, designated by the employer, shall inspect all machinery for safety\”prior to each use, and during use,\” and shall replace any defective partsbefore the machine is operated again. Based on Quinn’s operation of the crane with one ofits two boom stops broken, the judge found a violation of the cited standard. Respondentargues that no violation was shown because operating the crane with a broken boom stop wasnot proven to be hazardous. The judge found:There is no question that the absence of a boom stop is asafety defect within the meaning of this standard. Both [OSHA compliance officer] Riccaand Scavetta testified that with only one boom stop in place the boom can twist as it israised and if it is raised too far while twisting it can fall over. Joseph Vergona also[testified] that he would not permit a crane to operate with only one boom stop.(Citations to record omitted.) In arguing that a hazard was notshown, Respondent notes that Scavetta gave a statement to OSHA after the accident,referring to the broken boom stop and saying that he did not \”think it washazardous.\” However, Scavetta later testified under oath that the boom could twistand fall over, if only one boom stop is used. Thus, even if Scavetta did not think thatoperating the crane with a broken stop was hazardous, the judge properly found that itwas.Respondent also asserts that Scavetta testified that the\”boom kick out\” would prevent twisting and collapse of the boom in thesecircumstances. Scavetta did not so testify, however. The testimony by Scavetta thatRespondent cites indicates only that Quinn had told Polites on the jobsite that the\”boom kick out\” would prevent those problems. Scavetta did not testify that heagreed with Quinn. Nor was there other evidence explaining how the \”boom kickout\” would eliminate those problems. Quinn testified that he told Polites that hecould work the crane with only one boom stop:He said could you work the crane, I said I could work the cranewith the one stop but I said you have to go very slow and you’ve got to be real careful,no fast work. You can’t go fast. He said that’s good enough, so we went to work.However, that testimony shows that normal operation of thecrane would be hazardous with the broken boom stop. Further, as the judge found, therecord does not show the basis for Quinn’s belief that working very slowly would beacceptable. By contrast, the record shows that if the boom stop was working, it couldprevent twisting and collapse of the crane’s boom in the event of human error, and thatoperating without it was unacceptable in the opinion of Mr. Vergona as well as thecompliance officer. The preponderance of the evidence clearly shows that a broken safetydevice like a boom stop was a defective part under the cited standard. Thus, it wasnecessary to correct the defect before the crane was operated again.We further find, as the judge did, that Respondent is properlycharged with knowledge of the broken boom stop, because Quinn was aware of it. Asupervisor’s knowledge may be imputed to the employer, unless the employer presentssufficient rebuttal evidence that the supervisor’s failure to follow proper procedures wasunpreventable. E.g., Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537, 1992 CCH OSHD? 29,617, p. 40,100 (No. 86-360, 1992). Scavetta considered Quinn to be his supervisor,and both Quinn and Scavetta knew that one of the two boom stops was missing. Respondent’sonly argument against imputing this knowledge is that it was not their employer. Asdiscussed above, we reject that argument. [[9]]Thus, the Secretary has established all the elements of aviolation. Respondent had a duty to comply with the cited standard because it was Quinn’sand Scavetta’s employer. Respondent, through its supervisor Quinn, failed to comply, andemployees who worked near the crane, including Scavetta and Quinn, had access to thehazards. 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., PaceConstr. Corp., 14 BNA OSHC 2216, 2220, 1991 CCH OSHD ? 29,333, p. 39,429 (No.86-758, 1991).4. Whether Respondent was subjected to impermissible\”selective prosecution\”The basis for Respondent’s \”selective prosecution\”claim is that, although the Secretary originally cited Polites for the same violations forwhich she cited Respondent, she withdrew those citations against Polites before thehearing, under a settlement agreement in which Polites admitted to certain other, lessserious violations. Respondent argues that it was incumbent upon the Secretary toprosecute Polites as the employer.The Secretary has \”broad prosecutorial discretion\” indeciding whom to prosecute for violations of the Act. DeKalb Forge Co., 13 BNAOSHC 1146, 1153, 1986-87 CCH OSHD ? 27,842 p. 36,451 (No. 83-299, 1987), citing CuyahogaValley Ry. v. United Transportation Union, 474 U.S. 3 (1985).Moreover, the conscious exercise of some selectivity inenforcement by itself is not a constitutional violation. . . . Rather, a claim ofselective prosecution is judged by ordinary equal protection standards, under which itmust be shown that the alleged selective enforcement had a discriminatory effect and wasmotivated by a discriminatory purpose. . . . In particular, the decision toprosecute may not be \”deliberately based upon an unjustifiable standard such asrace, religion or other arbitrary classification[.]\”Id. (emphasis added, citations and footnote omitted),quoting Wayne v. United States, 470 U.S. 598, 608 (1985). Our finding above thatthe Secretary correctly believed, and that the judge correctly found, that Polites was notthe employer of the crane operator and oiler, disposes of Respondent’s argument.Respondent had a full opportunity to show that Polites was in fact their employer, andfailed to do so. The evidence provides us with no basis for questioning the propriety ofthe Secretary’s decision to dismiss the crane safety items at issue here against Polites.We reject Respondent’s contention that it was subjected to impermissible \”selectiveprosecution.\”5. PenaltyThe judge assessed a $700 penalty for the violation. Inassessing penalties, the Commission considers the gravity of the violation, the size andviolation history of the employer, and the employer’s good faith. 29 U.S.C. ? 666(j). Asthe judge noted, the result of a crane boom collapse could be death or severe injury toany employees in the area. In fact, two fatalities resulted when the crane’s cablesnapped, which initially led to OSHA’s inspection. (The issues surrounding the failure ofthe crane’s cable were not directed for review.) On the other hand, Respondent is a smallemployer and had no history of OSHA violations. Also, its president showed some good faithby checking on safety matters affecting the crane while at Polites’ worksite, includingthe condition of the cable. Considering all these factors, the $700 penalty assessed bythe judge is appropriate, and we affirm it.6. OrderIn summary, we affirm the judge’s finding of a seriousviolation by Respondent of section 1926.550(a)(5). We also affirm the $700 penaltyassessed by the judge for that violation.Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: July 22, 1992SECRETARY OF LABOR, Complainant,v. VERGONA CRANE CO., INC., Respondent.OSHRC Docket No. 88-1745Appearances: Harry W. Scott. Jr., Esquire U.S. Department of Labor Office of the SolicitorFor the Complainant Edward S. Rosen, Esquire Rosen & BermanFor the RespondentBEFORE: MICHAEL H. SCHOENFELD Judge, OSHRCDECISION AND ORDERBackground and Procedural HistoryOn January 19, 1988, two workers at a construction site inSouth 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 Safetyand Health Act of 1970, 29 U.S.C. ? 651-78 (\”the Act\”). The serious citationalleged that the crane, which had been leased to Polites Construction Company(\”Polites\”), was being operated by an unlicensed operator. The willful seriouscitation alleged that the crane was defective because it was missing one of two boom stopsand because of excessive wear and broken strands in the boom hoist cable. [[2\/]] Vergonatimely contested both citations, a complaint and answer were filed, and a hearing was heldin New York City from June 27 to June 30, 1989, at which no affected employees orrepresentatives of affected employees sought party status.Both parties filed post-hearing briefs. The Secretary, however,did not file her brief within the scheduled briefing time but rather requested anextension of time, which I denied because the Secretary did not state good cause foradditional time. The Secretary has filed a motion for reconsideration of my order. Thatmotion states no new grounds to justify an extension of time and therefore also is denied.Accordingly, the post hearing brief the Secretary sought to file was returned withoutbeing considered.JurisdictionVergona’s answer admits that it filed a notice of contentaccording to the provisions of section 10(c) [[3\/]] of the Act and that that notice ofcontest was duly transmitted to the Commission. Nevertheless, Vergona denied thejurisdictional allegations of the complaint. Since Vergona filed a timely and properlytransmitted notice of contest, the Commission has jurisdiction under section 10(c). It isalso undisputed that the crane involved in the citations was manufactured in Minnesota(Tr. 44). That is sufficient evidence to show that Vergona is engaged in a businessaffecting commerce under section 3(5) of the Act. [[4\/]] Atlanta Forming Co., 11BNA OSHC 1667 (No. 80-6925, 1983).Proper Identification of the Cited EmployerThe citations and complaint named Vergona as the Respondent.The evidence shows that the crane in question was in fact owned and leased to Polites by\”Jo-Le-Ron, Inc.,\” a company affiliated with Vergona (Tr. 262-63, 268, 715-23,1063, 1075; Ex. R-8, R-9). Vergona contends that this action must be dismissed because theSecretary named the wrong party. I reject that argument.Joseph Vergona is president of both the respondent named hereand Jo-Le-Ron, as well as president of a third related company, Vergona and Sons, Inc. Allthree companies own cranes and are engaged in the same business of renting cranes toconstruction contractors. Vergona Crane, the named respondent, has three or four officeemployees who do the paperwork for both that company and Jo-Le-Ron. Both companies arefamily businesses, and the office employees are Joseph Vergona’s relations. [[5\/]] VergonaCrane also has a full-time maintenance employee, John Kvilesz, whereas Jo-Le-Ron has noemployees. If a crane rented by Jo-Le-Ron needs to be inspected or examined, VergonaCrane’s employee Kvilesz will perform that task, and an \”interoffice billing\”will be issued between Vergona Crane and Jo-Le-Ron (Tr. 1052-53, 1125-28).I conclude that the circumstances do not warrant dismissingthis action on the ground Vergona urges. Vergona Crane and Jo-Le-Ron are closely relatednot only in their management but also in their business operations. Institution of theaction against Vergona clearly provided notice to Jo-Le-Ron. In fact, Vergona’s counselsent a copy of its notice of contest to Jo-Le-Ron. As the Commission held in CMH Co.,9 BNA OSHC 1048, 1054 (No. 78-5954, 1980), a reasonable person test is to be applied indetermining whether a party not charged should have known that the action was intended tobe brought against it. Based on the facts here, I find that Jo-Le-Ron must have known that were it not forthe Secretary’s erroneous belief that Vergona Crane owned the crane in question, Jo-Le-Ronwould have been the named employer. See John Hill, 7 BNA OSHC 1485 (No. 78-47,1979). Furthermore, the issues in this case were fully litigated, and a full defense wasput in as to the merits of the citations. Plainly, Jo-Le-Ron has not been prejudiced bythe issuance of the citations and complaint to Vergona. P & Z Co., 7 BNA OSHC1589, 1593 (No. 14822, 1979).The preferred method of handling this type of situation is anamendment under Fed. R. Civ. P. 15(c) changing the party against whom the claims areasserted. However, the Secretary has not moved to amend. In the absence of such a motion,I will continue to refer to the respondent as Vergona, since in view of the closerelationship between Vergona and Jo-Le-Ron the correct identification of the citedemployer is merely a technicality.Employment IssueVergona’s primary contention is that it was not the employer ofthe crane operator and oiler and that all matters relating to the safe operation of thecrane were exclusively within Polites’ control. Therefore, Vergona asserts that thecitations must be dismissed for failure of the Secretary to prove either that Vergona hadexposed employees or that it exercised any authority over the conditions at the site.The crane was rented to Polites under what is known in thetrade as a \”bare rental\” agreement. Such an agreement provides that the lessee,in this case Polites, pays the lessor, here Vergona, a flat fee for use of the cranealone. The lessee may then obtain the necessary crane operating employees, usually anoperator and oiler, from the union hiring hall or, if the crane comes from anotherjobsite, may elect to use 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 for an operator when renting a crane fromVergona. Normally, he asks Vergona to assign either Frank Quinn or another operator, FrankMcGuire, because he 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 commencedshortly after Polites finished a construction job in Hasbrouck Heights, New Jersey, whereit was using a crane rented from Vergona operated by Quinn with Bruce Scavetta as oiler.At Polites’ request, Vergona sent the crane, together with Quinn and Scavetta, fromHasbrouck Heights to South Orange (Tr. 406-07, 666, 745-46, 1067-73; Ex. R-15). Inaccordance with the agreement, Polites put Quinn and Scavetta on its payroll; declaredthem as its employees for tax purposes; and paid their withholding, workmen’scompensation, and union fees (Tr. 687-88). With the exception of Kvilesz, who went to thesite on one occasion to inspect the crane (Tr. 1153-54), Quinn and Scavetta were the onlyworkers Vergona sent to the site.The elements to be considered in determining whether anemployment relationship exists include such criteria as who the workers regard as theiremployer, who pays their wages, who has the responsibility to control the workers, and whohas the power to hire, fire, or modify the employment condition of the workers. VanBuren-Madawaska-Corp., 13 BNA OSHC 2157, 2158 (No. 87-214, 1989). Quinn and Scavettatestified that in this instance they considered Polites their employer, whereas in awritten statement to the Secretary’s compliance officer some months after the accident,Scavetta stated that he has been employed by Vergona Crane for about two years and thathis supervisor is Joseph Vergona (Tr. 399-400; Ex. G-10). Although Scavetta was not askedto explain his written statement in light of his testimony, his testimony and that ofQuinn indicates that they viewed Polites as their employer solely because Polites waspaying their wages (Tr. 328, 402). However, the purpose of the lease provision thatPolites would pay the workers’ wages was not to establish an employment relationship butwas merely a concession to Vergona to allow Vergona to reduce its insurance costs (Tr.676, 721-23, 1075-76; Ex. R-7, R-9). Since payment of wages in just one of many aspects ofan employment relationship, and here is relatively insignificant, I am not inclined toassign dispositive weight to Quinn’s and Scavetta’s testimony that they believed Politesto be their employer. I also find their testimony to be equivocal and thereforeinconclusive because neither witness clearly distinguished between crane rental companiesand construction companies who rent cranes. For instance, when asked to describe theirwork experience, Quinn testified that he had worked for both crane rental companies andcontractors (Tr. 351-52), while Scavetta stated that he had worked both for Vergona andfor construction contractors including Polites (Tr. 377).Another factor is the right to hire, fire, or modify theemployment condition. Michael Polites, president of Polites Construction, testified thathe could not fire Quinn or Scavetta; if he wanted to get rid of the operator or oiler, hewould either have to ask Vergona for different workers or terminate the entire lease.Polites also did not establish the operator’s wage; it was set according to the union payscale (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 recordhere shows that ultimate authority over the worksite for purposes of safety of operationof the crane was vested in Vergona.Michael Polites or his supervisors told Quinn what loads to move and where to lift them,but that was the extent of Polites’ instructions to Quinn. Once Polites ordered a lift,Quinn would determine how to perform the lift and how to swing the boom. Quinn also hadauthority to refuse to 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 wouldaccept the operator’s judgement (Tr. 330, 678, 725-27).Michael Polites also testified that he does not know anythingabout cranes or how to maintain them, has never operated or performed maintenance on acrane, and is not familiar with OSHA crane standards (Tr. 723). While Polites would payfor routine maintenance and lubrication of the crane as well as for replacement of someparts, he relied on Vergona to perform necessary maintenance (Tr. 659-60, 723). JosephVergona testified that all matters relating to maintenance and safe operation of the craneare the responsibility of the crane operator and oiler (Tr. 1078-79). That Vergona ratherthan Polites exercised authority over the site with respect to the safety of craneoperations is aptly demonstrated by the circumstances surrounding the allegations that thecrane was not in a safe operating condition.When the crane was sent to Polites’ worksite, it had beenoperating for about six months on other sites. Because the lifespan of a boom cablenormally is not much greater than six months, Joseph Vergona told Scavetta to examine thecable for signs of wear. Both Scavetta and Quinn inspected the cable daily while standingon top of the crane cab, and Quinn performed a more thorough inspection on the Mondaybefore the accident (January 18) when he lowered the crane boom to the ground and walkedalong it. Both Quinn and Scavetta found that the cable was somewhat worn and had a fewbroken strands, indicating nothing more than normal wear and tear. It was Scavetta,however, who assumed the role of liaison between Vergona and Polites. Because the cablehad been in use for at least six months, Scavetta informed Polites’ superintendents thatit should be changed. Since replacing the cable would take the crane out of service,Scavetta attempted to arrange with Polites a mutually convenient date for the cablechange. He was unsuccessful. Over a two-week period before the accident, the cable changewas scheduled and rescheduled several times (Tr. 326-31, 336-38, 341- 43, 367, 373-75,379-83, 388, 412-16, 422-26, 1081-92).Scavetta kept Vergona advised of the reschedulings (Tr.435-36). Vergona, who was beginning to get concerned about the age of the cable,instructed Kvilesz to check the cable so that Vergona could have another opinion as to itscondition. He told Kvilesz that Polites was procrastinating and that if Kvilesz concludedthat the cable needed to be changed \”we’ll take further steps and do it quicker thanwhat 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 be changed, Scavettashould go ahead and change it without regard to Polites’ preferences (Tr. 390, 1088).Kvilesz went to the site one or two weeks before the accident.As did Quinn and Scavetta, Kvilesz found some broken wires which he did not considerserious, but he felt that the cable should be replaced within the next couple of weeks(Tr. 1083, 1086-87, 1154, 1170). The cable change was eventually scheduled for the Mondaybefore the accident, was cancelled, and then rescheduled that day for the followingWednesday, which turned out to be the day after the accident (Tr. 1091-92). [[6\/]] Vergonaspecifically testified that if he thought the cable had become hazardous, he would haveseen to it that the cable was changed (Tr. 1111). Scavetta also testified that so long ashe 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’sultimate control relates to the boom stop. A boom stop is an attachment to the boom thatworks along the principle of a shock absorber. Its purpose is to prevent the boom fromgoing over backwards by keeping it from rising higher than its center of gravity (Tr.55-56). About one week before the accident one of the crane’s two boom stops became bent,forcing Quinn to stop the crane. Michael Polites, who came over to find out why the cranewas not operating, asked if the stop could be repaired or if he should arrange for anothercrane. Quinn and Scavetta replied that they could fix the stop and another crane would notbe necessary. A few days later the stop bent again, and again Polites or hissuperintendent asked if it was repairable. On the Friday before the accident the otherstop bent but Quinn could not straighten it. Quinn then told Polites that the crane couldbe operated with only one boom stop and also explained that the crane had an additionalsafety device called a \”kick out\” that would help prevent the boom from goingover backwards. [[7\/]] However, Quinn did advise Polites that he would have to move theboom slowly and carefully and would not be able to work fast. Polites agreed that thatwould be satisfactory (Tr. 332-35, 392-95, 418, 669-70). Polites testified that he did notknow anything about boom stops and relied on what Quinn told him (Tr. 728, 732-34).When the accident occurred, Quinn telephoned Vergona’s officeto report that Vergona equipment had been damaged. He was not able to speak to JosephVergona directly and went home. Thereafter Joseph Vergona called Quinn at his home andinstructed him to go back to the site (Tr. 347-49).These facts show that Polites had some operational control overthe crane. However, mere operational control of a crane is the not sole factor indetermining whether an employment relationship exists. Acchione & Canuso Inc.,7 BNA OSHC 2128, 2129-30 (No. 16180, 1980). The record clearly demonstrates that withrespect to the question of whether the crane was in safe operating condition, Polites didnot exercise control over Quinn and Scavetta. Joseph Vergona and not Michael Politesinformed Scavetta that the cable should be inspected for wear and replaced if necessary.Vergona also instructed Scavetta that if a safety hazard existed, the cable would bechanged without regard to Polites’ scheduling preferences, and Scavetta’s testimonyindicates that he would have complied with such a directive from Vergona. Similarly,Polites asked Quinn and Scavetta for their opinion regarding the boom stops, leaving thedecision whether to operate the crane entirely within their discretion. I find thatPolites relied on Quinn and Scavetta to advise him of any matters pertaining to the safetyof the crane and that he gave them no instructions in that regard. See Sasser Electric& Manufacturing Co., 11 BNA OSHC 2133 (No. 82-178, 1984), aff’d, 12 BNAOSHC 1445 (4th Cir. 1985) (unpublished) (discussion of employer’s right to rely onexpertise of another). I also find that Vergona was responsible to insure that the cranewas properly maintained and in safe operating condition and that Vergona had ultimateauthority to direct Quinn and Scavetta on safety matters. The control exercised by Vergonawith respect to safety matters at the site establishes that Vergona and not Polites is theemployer of Quinn and Scavetta. Acchione & Canuso, supra. [[8\/]]Citation No. 1, Item 1Alleged Serious Violation of 29 C.F.R. ? 1926.550(b)(2)The Secretary alleged that Quinn did not have a current NewJersey crane operator’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 statelicensing program began, but his license lapsed in 1980 or 1981. He testified, however,that he currently has a license. At the time of the inspection he also informed theSecretary’s inspector, Louis Ricca, that he had a license, but was unable to produce it.Ricca also testified that the state, which keeps licensing records for no longer than sixyears, had no 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 tocomply with a standard is a necessary element of the Secretary’s case. ContinentalElectric Co.,13 BNA OSHC 2153, 2154 n.4 (No. 83-921, 1989). The Secretary maysatisfy this burden by showing either that the employer had actual knowledge of theviolative condition or that the employer could have known of the violative with theexercise of reasonable diligence. Chapman Construction Co., 9 BNA OSHC 1175, 1177(No. 76-2677, 1980). Quinn testified that none of his employers were aware that hislicense had lapsed (Tr. 322). Joseph Vergona had known Quinn from at least 1975, whenQuinn was working for Hoffman Crane. He regarded Quinn as a qualified operator. Ricca alsotestified that he found nothing during his investigation to indicate that Quinn was notexperienced (Tr. 274). Vergona did not ask Quinn whether he had a valid license butbelieved that Quinn did because it is the operator’s obligation to maintain his license ingood standing. Vergona also felt that the union hall would not send out someone who wasunlicensed (Tr. 323, 351, 1077-78, 1119).I find that the preponderance of the evidence shows that Quinndid not have a valid license at the time of the accident and inspection, although he mayhave had one by the time of the hearing in this case. I also find, though, that Vergonawas not obligated to specifically inquire whether an experienced operator sent from theunion had a valid license. Therefore, Vergona could not reasonably have known that Quinn’slicense had lapsed.The issue presented here, however, is not whether Quinn had avalid license but whether he had passed an examination as required by the standard. Whenhe applied for his license Quinn was only given some questions to answer; he was notrequired to operate a crane as part of his examination (Tr. 350). That does not complywith the cited section of the ANSI standard, which calls for a \”practical operatingexamination\” that is \”limited to the specific type equipment\” that will beoperated. The only reasonable interpretation of this language is that the operator mustprove by an actual physical demonstration that he is competent to operate the equipment inquestion. However, I find that no violation was established because the Secretary hasfailed to present any evidence to show that Vergona knew or reasonably could have knownthat Quinn had not been given the type of examination required by the standard.In addition to the lack of proof of employer knowledge, Ivacate this item as de minimis. Quinn has been operating cranes since 1960 (Tr. 321). Thefact that he was not required to show his competence to operate a crane when he firstreceived his license in 1963 has a negligible, if any, relationship to the safety of thecrane operations 25 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 allowing the crane to operatewithout replacing the broken boom stop.[[10\/]] There is no question that the absence of aboom stop is a safety defect within the meaning of this standard. Both Ricca and Scavettatestified that with only one boom stop in place the boom can twist as it is raised and ifit is raised too far while twisting it can fall over (Tr. 303, 417). Joseph Vergona alsostated that he would not permit a crane to operate with only one boom stop (Tr.1080).[[11\/]]However, Vergona further testified that although Scavettanotified him when the boom stops bent and were restraightened, neither Quinn nor Scavettaever told him that a stop had broken and that the crane was being operated with only oneboom stop (Tr. 1080, 1093-94). His testimony is consistent with that of Quinn, who statedthat he never spoke to Vergona about the missing stop and that Scavetta informed Vergonaon the first two occasions when the stop bent (Tr. 335, 346). Scavetta, for his part,testified that he could not recall whether he advised Vergona that they were using onlythe one stop (Tr. 394-95). On the other hand, Michael Polites testified that he askedJoseph Vergona whether he should make arrangements to get another crane, and that Vergonatold him the crane could be operated with one stop if Quinn took it easy. He alsotestified that at Quinn’s suggestion he had one of his drivers take the broken stop toVergona’s yard (Tr. 669-71, 729-32). Vergona expressly denied that Polites ever asked himabout operating the crane with only one stop and that no one brought the boom stop fromthe Polites site to the Vergona yard (Tr. 1080).I have carefully weighed the conflicting evidence as to whetherJoseph Vergona himself was aware that the boom stop had broken. [[12\/]] In evaluating thistestimony, I have taken into account the undisputed evidence that when Vergona realizedthat the cable was approaching the end of its useful life, he instructed his employees toinspect and change the cable if they found it to be excessively worn. Those factsdemonstrate that Vergona is a safety-conscious individual who was concerned that the cranebe in safe operating condition. To conclude that Vergona know about the broken boom stopbut took no measures whatever to correct that condition would be completely inconsistentwith his actions regarding the hoist cable. It is more a reasonable inference that Vergonaallowed the crane to continue to operate with only one stop because he did not know thatthe other stop had broken. Accordingly, I find Vergona’s testimony that he was unaware ofthe broken stop to be credible. [[13\/]] However, while I find that the Secretary failed to show that Joseph Vergona personally hadknowledge that the boom stop had broken, Vergona as the employer must be charged withQuinn’s knowledge. After Quinn conferred with Polites’ personnel regarding the lifts to bemade with the crane, he would instruct Scavetta where to move the crane and give Scavettadirections for backing up the crane. Scavetta considered Quinn his supervisor for thispurpose Quinn also had authority to instruct Scavetta to inspect the crane and its cableand could direct Scavetta to make arrangements to get a new boom stop (Tr. 405-06). Thesefacts are sufficient to show that Quinn was a supervisory employee whose knowledge isimputable to his employer. Iowa Southern Utilities Co., 5 BNA OSHC 1138 (No.9295, 1977). Because Quinn obviously knew that the stop had broken and that the crane wasbeing operated in that condition, Vergona as Quinn’s employer is charged with knowledge ofthe violative conditions under the imputation principle. See Wander Iron Works, Inc.,8 BNA OSHC 1354, 1357 (No. 76-3105, 1980).I do not, however, find the violation willful as alleged. Theevidence fails to show that Vergona’s failure to replace the boom stop or to prevent thecrane from being operated with only one stop was due to an intentional disregard for therequirements of the Act or plain indifference to employee safety. Keco Industries,Inc., 13 BNA OSHC 1161, 1163 (No. 81-263, 1987). As I have found, Joseph Vergonacredibly testified that he would have taken appropriate action had he known of thecondition of the boom stop. Quinn’s belief that one boom stop was not unsafe if heoperated the crane slowly and that the \”kick out\” would compensate for themissing boom stop does not establish willfulness. The Secretary did not present anyevidence to show that there could be no rational basis for Quinn’s belief that slowoperation and the kick out would alleviate any hazard. See Wright & Lopez, Inc.,10 BNA OSHC 1108, 1114 (No. 76-256, 1981) and cases cited therein (good faith beliefnegates willfulness). Nor has the Secretary presented any other facts from which I couldconclude that Quinn’s state of mind was one of disregard or indifference to therequirements of the standard. Accordingly, the Secretary has not established a willfulviolation on the 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 thecrane hoist cable was defective and should have been taken out of service. [[14\/]] TheSecretary claimed that the cable contained an excessive number of randomly distributedbroken wires in one lay (subitem 2(a)) and broken wires in one strand in one lay (subitem2(b)) and also had numerous flat spots, exhibiting excessive wear (subitem 2(c)) [[15\/]]According to Ricca, wire rope consists of individual wiresformed into strands, which in turn are wrapped around a center core. A rope of the size inquestion here has six strands. A \”lay\” refers to the lateral distance along onetwist of a strand. At Ricca’s request, Joseph Vergona cut a piece of cable about two feetlong from the crane. This piece or cable is shown in photographic exhibits G-1A, 1B, and1C, and was itself admitted 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 this cut section of the cable, Riccaobserved numerous breaks in individual wires, both randomly throughout all the strands ina given lay as well as 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 haveexamined G-1, the actual piece of cable cut from the crane. It has a large number ofbroken wires within one or two-inch areas, clearly in excess of the maximum permittedunder the standard. Next to a strand containing a number of obvious large breaks is astrand with some smaller breaks.Charles Savko, Ricca’s supervisor, accompanied Ricca on theinspection. He testified that he wiped off a portion of the cable and looked at the brokenstrands at several locations on the crane gantry where the pulleys that operate the boomare located. Even where the cable still had grease on it he was able to count more thansix broken wires in one lay and more than three in one strand (Tr. 765-69; Ex. G-14).Savko also testified that the cut section of the cable shows uniform wear from one end tothe other. After Ricca cleaned the cut section, Savko used a calipers to measure thediameter of the wires. Based on that measurement, he estimated that individual wires hadbeen worn down to 50 percent 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 bylightly and slowly running his hand along it (Tr. 361-62). Scavetta did the same, exceptthat Scavetta wore gloves. Although he had a rag with him, Scavetta did not clean off thecable but rather felt for broken wires as he moved his hand along the wire. He found nomore than one break in the wire every one to three feet (Tr. 380, 412, 424). Kvilesz, whodid run a rag along the cable, testified that in his experience, the rag will pickup any\”burrs\” that are present, which will indicate whether there is a problem in thecable. While he did not see an excessive number of broken wires, he observed smallerbreaks similar to those appearing on exhibit G-1 but did not count them and therefore didnot know how many there may have been. He has been inspecting cables for about threeyears, and Vergona has given him some instruction in conducting such inspections. However,he is not familiar with the OSHA requirements as to the maximum number of breakspermitted, nor does he know what a \”lay\” is (Tr. 1155-56, 1159, 1164-68). Quinnalso had not been given specific training in, and was not aware of, the OSHA standards butfollowed procedures operators have established over the years (Tr. 357). Scavetta, who hasbeen an oiler for three years, had been taught that a cable should be changed if it has a\”group\” of wires broken within a 6-inch to 1-foot area (Tr. 377-79, 425).Neither Quinn, Scavetta, nor Kvilesz testified regarding wear or thinning of the wires asopposed to broken 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 neverrun his bare hand along a wire. According to Savko, once Quinn and Scavetta encounteredsome broken wires, they should have wiped the wire with a rag and specifically looked forany additional breaks. He also felt that a rag would detect more broken wires than would abare hand because the rag would catch on breaks where as a person rubbing his hand lightlyover a cable would be likely to miss some breaks (Tr. 786-87, 1015-18). Savko did nottestify regarding Kvilesz’s inspection..Quinn, Scavetta, and Kvilesz agreed that a cable in thecondition of exhibit G-1 shows damage and should be taken out of service (Tr. 367, 414-16,1157-58). However, there is a dispute as to whether the cut section accurately representsthe condition of the cable before the accident or whether the wires in this sample werebroken as a result of the accident. Some of the testimony centered on the cable pulleys,which were severely bent, distorted, and scratched after the accident (Ex. R-2, R-3, R-4).Various witnesses agree that the damage to the pulleys indicates what was happening to thecable at the time of the accident, but there is some disagreement as to specifically whatconclusions should 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.Exhibit R-1 is a photograph of a torn, frayed cable end. Savko concluded that the pulleyswere damaged when the flared-out broken end shown in exhibit R-1 traveled through thepulleys at a high rate of speed. Savko believed that if exhibit G-1 had jumped out of thepulley it would have received nicks and gouges, which it did not have. Savko stated thatexhibit G-1 was bent simply from running through the sheave and that the cable did notleave the sheave after it broke because he saw the cable still in the flange of thepulley.Savko further distinguished an \”abrasion\” or\”fatigue\” break from a \”tension\” break, stating that the first type ofbreak is caused by metal-to-metal wear that develops over a period of time. It ischaracterized by a flattening in the shape of individual wires. A tension break, on theother hand, has a distinctive \”cup\” and \”cone\” appearance reflecting awire that has been pulled on in two different directions. When the tension is released,the broken wire ends spring up and back. The wires in exhibit G-1 have the flattenedappearance of a fatigue 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 wascaused by the cable running outside the flange of the pulleys. He felt that the breaksshown in exhibit G-1 could have been caused by wear or could have resulted from the cablejumping off the pulley, but he also stated that the corkscrew shape of exhibit G-1indicates that the cable ran over a sharp edge, such as a pulley housing. On the otherhand, Vergona conceded that the rope crossing over the sheaves and being dragged acrossthe sharp points of the housing could have caused the frayed out cable ends shown inexhibit R-1 (Tr. 1095-05, 1150-51).Quinn likewise testified that the cable jumped out of a sheaveand shredded, with exhibit R-1 showing the shredded area and G-1 showing where the cablejumped the sheave. He also stated that the curl in the exhibit G-1 cable section couldonly be caused by jumping and that running within the sheave would not be capable ofcausing the conditions shown in exhibit G-1. He did not explain why (Tr. 339-40, 367-68,376).In my view, all the witnesses were about equally qualified–or,for that matter, equally unqualified–to give an opinion as to whether the damagecontained in exhibit G-1 existed prior to or resulted from the accident. Savko has been anOSHA inspector and supervisor since 1975, and has conducted well over 200 inspections ofcranes. Previously, he worked for over 15 years in the mining industry performing dailyinspections of the cables, clamps, and pulleys on a personnel hoist. He had experienceinvestigating accidents where a boom lifting cable had broken. On the other hand, he hasno college education and in particular is not a trained metallurgist. He also does notknow whether the technology and methodology of wire ropes has changed over the years (Tr.750-60, 770-71, 792, 1031). Savko’s level of expertise is not appreciably different fromthat of Vergona, who has 20 years experience with cranes in different capacities,including mechanic, oiler, and operator (Tr. 1054-58), or that of Quinn, who has been acrane operator since 1960 (Tr. 321).Savko’s testimony, though, is consistent with the appearance ofexhibit G-1, on which areas where wires have been flattened are quite visible. It isreasonable and logical to conclude that this flattening indicates that the cable wireshave worn down over a period of time, and that conclusion also is consonant with Vergona’sconcern for the length of time the cable had been in use. Savko’s judgment that the cablestrands were broken before the accident also is corroborated by Kvilesz’s testimony thathe found some broken wires when he inspected the cable one or two weeks prior to theaccident. Vergona’s testimony, on the other hand, was equivocal in that he testified thateither wear or movement outside of the pulley could have caused the conditions in exhibitG-1. Furthermore, Vergona’s admission that the torn cable ends shown in exhibit R-1 couldhave resulted from the cable moving across the pulley housing area supports Savko’s viewthat movement outside of the pulley was not a factor in the condition of exhibitG-1.[[16\/]] Finally, I discount Quinn’s testimony on this subject because he stated noreasons to support his opinion.Accordingly, I find that the cable had an excessive number ofbroken wires before the accident. [[17\/]] The evidence also shows that visually inspectingthe cable after wiping it with a rag is an appropriate and reasonable method for detectingbroken wires. In fact, that is the technique Kvilesz himself used, except that Kvilesz didnot count all the broken wires he saw. I therefore, find that with the exercise ofreasonable diligence Vergona could have known of the number of broken wires. Accordingly,Vergona is in violation as alleged in subitems 2(a) and 2(b).However, I do not find the violation willful as alleged. TheSecretary established that Vergona’s employees had not been instructed in the propermethod for inspecting a cable for breaks and had not been made aware of the requirementsof the OSHA standard pertaining to the maximum permissible number of broken wires.However, the Secretary has not presented any evidence to show that Vergona acted out ofdisregard or indifference to the requirements of the standard. In fact, as indicatedabove, Joseph Vergona was concerned that the cable was becoming excessively worn andneeded replacement. Simple lack of diligence or relessness in failing to discover aviolation does not constitute willfulness. Marmon Group, Inc., 11 BNA OSHC 2090,2092 (No. 79-5363, 1984).Savko’s testimony about the wires having become worn down isunrebutted. Additionally, as indicated above, flattened wires are clearly visible inexhibit G-1. However, Savko’s observations and conclusions about the amount of wear werebased on his examination of the cable after it had been removed from the site andthoroughly cleaned with pressurized water. There is no evidence from which I can concludethat wear or flattening of the wires would have been evident when the cable was coveredwith grease, nor did the Secretary show that wiping the cable with a rag would besufficient to reveal this type of wear. Accordingly, the allegation in subitem 2(c) hasnot been proven due to the Secretary’s failure to show that Vergona knew or reasonablycould have known of the violative condition.Penalty AssessmentThere is no record of a prior history of violations by Vergona. [[18\/]] Vergona alsois a small employer, and it demonstrated some good faith in its concern for the conditionof the cable. However, violations for having defective crane components are of highgravity, as exemplified by the fact that two fatalities occurred in this case. I assess apenalty of $700 each for items 1 and 2 of citation no. 2.FINDINGS OF FACTFindings of fact relevant and necessary to a determination ofall issues have been made above. Fed. R. Civ. P. 52(a). All proposed findings of fact andconclusions of law inconsistent with this decision are denied.CONCLUSIONS OF LAW1) Vergona Crane Company, Inc. was at all times pertinenthereto an employer engaged in a business affecting commerce within section 3(5) of theAct, and the Commission has jurisdiction of the parties and the subject matter.2) Vergona was at all times pertinent hereto required to comply with the requirements ofthe 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, item1) but the violation was not willful.5) Vergona was in serious violation of 29 C.F.R. ? 1926.550 (a)(7)(i) (citation no. 2,subitems 2(a) and 2(b)) but the violation was not willful.6) Vergona was not in violation of 29 C.F.R. ? 1926.550(a) (7)(ii) (citation no. 2,subitem 2(c).7) Pursuant to section 17(j) of the Act, the following penalizes are appropriate:a. Citation no. 2, item 1. . . .$700 b. Citation no. 2, subitems 2(a) and 2(b). $700ORDER1. 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 anda 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) isVACATEDMICHAEL H. SCHOENFELD Judge, OSHRC\u00a0\u00a0FOOTNOTES: [[1]] That standard, promulgated by the Secretary of Labor’sOccupational Safety and Health Administration (\”OSHA\”), provides:The employer shall designate a competent person who shallinspect all machinery and equipment prior to each use, and during use, to make sure it isin safe operating condition. Any deficiencies shall be repaired, or defective partsreplaced, before continued use.[[2]] Those definitions state:(5) The term \”employer\” means a person engaged in abusiness affecting commerce, 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 anemployer who is employed in a business of his employer which affects commerce.[[3]] As the judge mentioned, even if Jo-Le-Ron had been theonly appropriate entity to cite, an amendment of the pleadings to name it as the employerwould be permissible under the principles of Federal Rule of Civil Procedure 15(c). Thatrule applies to Commission proceedings under 29 C.F.R. ? 2200.2(b). Amendment of thepleadings to change the name of the party sued is permitted under Fed. R. Civ. P. 15(c)when the same claim is involved and the party to be bought in by the amendment: (1)received timely notice of the institution of the action, so that it would not beprejudiced in defending its position on the merits; and (2) knew or should have knownthat, but for a mistake concerning the identity of the proper party, the action would havebeen brought against it. The 1991 amendment to Fed. R. Civ. P. 15(c) extends the\”relation-back period\” for such an amendment to at least 120 days after thelimitations period for bringing the action. Pub.L. 102-198, ? 11(a), 105 Stat. 1626(1991). See generally 6A C. Wright, et al., Federal Practice and Procedure,? 1498(1992 Supp.).The Rule 15(c) criteria have been met here. Jo-Le-Ron’sresponsibility would be based on the same conduct, transaction and occurrences asRespondent’s responsibility. Jo-Le-Ron received full and timely notice of the institutionof the action when Mr. Vergona received the citation. Furthermore, it knew or should haveknown that the action would have been brought against it except for the alleged mistake asto which Vergona entity leased the crane. (A citation is not a \”summons\” or\”complaint\” within the meaning of the Federal Rules. See, e.g., P & 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 an amendment is warranted for acitation. See, e.g., CMH Co., 9 BNA OSHC 1048, 1052-54, 1980 CCH OSHD ? 24,967,p. 30,826 (No. 78-5954, 1980) (dealing with former version of Fed. R. Civ. P. 15(c)).[[4]] The fact that Respondent did not interrupt Polites’construction job to change the cable does not indicate that Respondent lacked control overthe crane, operator or oiler. Mr. Vergona’s testimony shows that he was concerned aboutfinding a time convenient to Polites to change the cable. His concern for Polites’convenience is understandable in light of the companies’ business relationship and thelack of urgency that Vergona’s personnel conveyed to him about changing the cable. Thus,based on this record, Respondent retained the authority to replace the crane’s cable atits discretion.[[5]] Polites and Respondent did sign a written leaseconcerning the jobsite in question here, but not until after the alleged violationoccurred. That lease contained essentially the same terms as the previous written lease.There was no evidence that the subsequent lease was effective retroactively.[[6]] In Respondent’s behalf, it also bears noting thatPolites’ regular business was construction, and it had hired cranes from Respondent, orcompanies related, to Respondent, on numerous prior occasions.[[7]] Respondent argues that this case is indistinguishablefrom a recent case in which a Commission judge found that the crane leasing company wasnot the crane operator’s employer. United Crane & Shovel Serv., 88 OSAHRC20\/A12 (No, 87-1331, 1988) However, the situation there was actually quite different. Acontractor leased a crane from United on a bare rental lease, but hired the crane operatorentirely independent from United. No relationship was shown between United and the craneoperator. By contrast, in this case there was a long-term employment relationship betweenRespondent and the crane operator and oiler, and Respondent retained control over themanner and means by which 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, in light of Dardenand his\u00a0 parties have had a full opportunity to present evidence on any factors thatrelate to that issue, including whether Respondent had a right of control over the mannerand means by which the crane operator and oiler performed their work. The extensivehearing produced substantial evidence on each of the factors specifically mentioned in Dardenand Van Buren. Further, the briefs on the issue have been comprehensive.[[9]] It can be argued that Respondent also reasonably couldhave known that the crane was being operated in violation of the cited standard because ofa frayed cable. Respondent was aware that the crane’s cable was fraying, and intended toreplace it. Before it was replaced, however, the cable snapped, resulting in a fatalaccident. Because of our disposition of the knowledge issue, we need not and do notaddress this issue.[[1\/]] Originally, citation no. 2 alleged only willful violations. The complaint amendedthat citation to allege that the willful violations were serious as well.[[2\/]]The boom hoist cable, also referred to as the \”boomcable\” or the \”hoist cable,\” is a wire rope that raises and lowers thecrane’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 employerfiles a timely notice of contest, \”the Secretary shall immediately advise theCommission of such notification, and the Commission shall afford an opportunity for ahearing….\”[[4\/]] This section provides: \”The term\”employer\” means 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.\”Joseph Vergona, Vergona’s president, testified that Vergona hasemployees (Tr. 1125-26). There is a dispute, however, as to whether Vergona was theemployer of the crane operator and oiler on the jobsite in question here and whether itwas responsible for their actions. That issue is discussed later in this decision. [[5\/]] The name \”Jo-Le-Ron\” is an amalgam of JosephVergona’s children’s names (Tr. 716).[[6\/]] Vergona explained that on Friday, January 15 Pete Cronk,Polites’ ironworker superintendent, called to cancel the cable change that had beenscheduled for the following Monday. Consequently, Vergona told Scavetta not to botherpicking the replacement cable, which had been loaded on a truck at Vergona’s yard. Then onMonday morning Cronk called Vergona to ask if the cable could be changed that afternoon.Vergona told Cronk that he did have anyone to take the cable to the worksite but thatCronk could pick up the cable himself (Tr. 1088-91). Polites’ view of these events is thatVergona prevented the scheduled change because he refused to bring the cable to the site(Tr. 743).The parties dispute whether Polites or Vergona was responsiblefor the cancellations and postponements that eventually resulted in the cable not beingchanged. I express no opinion on this question because it is irrelevant to the issuehere–which company, Vergona or Polites, had ultimate authority and control over the cranewith regard to safety matters.[[7\/]] A \”kickout\” is an arm alongside the operator’scab that precludes the boom from being raised above a certain point (Tr. 418).[[8\/]] Polites cites a decision in United Crane & ShovelService Co., 88 OSAHRC 20\/A12 (No. 87-1331, 1988) (ALJ), in which Judge DeBenedettoheld that United Crane, which leased a crane to a contractor, Eastern Steel Erectors, on a\”bare rental\” agreement was not the employer of the crane operator. That case isfactually distinguishable. United Crane did not exercise any control over the operator; infact, Steel Erectors hired the operator directly without any involvement by United Crane,and there is no evidence to indicate that the lessor had any contact whatever with theoperator.[[9\/]] The Secretary’s standard, 29 C.F.R. ? 1926.550(b)(2),in pertinent part, requires as follows:All crawler, truck, or locomotive cranes in use shall meet theapplicable requirements for design, inspection, construction, testing, maintenance, andoperation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive andTruck Cranes. . . .The referenced ANSI standard provides, in pertinent part, asfollows:5-3.1.2 Qualifications for Operatorsa. Operators shall be required to pass a practical operating examination. Examinationshall be limited to the specific type equipment which he will operate.[[10\/]] The cited standard requires as follows:The employer shall designate a competent person who shallinspect all machinery and equipment prior to each use, and during use, to make sure it isin safe operating condition. Any deficiencies shall be repaired, or defective partsreplaced, before continued use.[[11\/]] Quinn evidently believed that the crane could beoperated safely with only one boom stop if it was operated slowly and that the \”kickout\” would compensate for the missing boom stop. The record does not show the basisfor Quinn’s belief. The preponderance of the evidence establishes that operating with onlyboom stop in place is not safe.[[12\/]] Although Quinn testified that he had never discussed aboom stop with Vergona, he gave a contrary statement to Ricca during the inspection. Inhis written statement (Ex. G-9), Quinn told Ricca that he had advised Vergona of thebroken boom stop and that Vergona instructed him to continue working while Vergona madearrangements to bring a new stop to the site.At the hearing Vergona’s counsel questioned Quinn about thisstatement. Quinn expressly testified that the statement was incorrect and that he hadnever spoken to Vergona about the boom stop. He explained that what he had meant to saywas that all messages to Vergona were relayed through Scavetta, who placed all phone callsto Vergona (Tr. 345-46).Quinn’s explanation is not implausible. As previouslyindicated, Scavetta and not Quinn was the contact between Polites and Vergona with respectto the cable. Therefore, it is not inconceivable that Scavetta would have been assignedthe responsibility to keep Vergona informed about the condition of the boom stops as well.Furthermore, Scavetta did in fact talk to Vergona about the boom stops insofar as he toldVergona when the stops became bent. The Secretary has failed to present any evidence fromwhich I can reasonably conclude that Quinn’s explanation of his written statement is notcredible.[[13\/]] During his inspection, compliance officer Ricca noticedone boom stop lying on the ground next to the crane (Tr. 43). If that had been the onlyboom stop present at the site, Ricca’s observations would have supported Polites testimonythat he took the other boom stop to Vergona’s yard. Unfortunately, Ricca was not askedwhether the other boom stop was still on the crane or whether he saw only one stop. Riccaalso testified that Quinn told him during the inspection that the boom stop he saw hadbeen removed before the accident and placed against the crane outrigger where Riccaobserved it (Tr. 46). That statement supports a conclusion that the broken boom stop hadnot been removed from the site.[[14\/]] Although the complaint amended the citation to allegethat item 2 is serious as well as willful, the allegation of seriousness explicitlyappears in the complaint only as to subitems 2(a) and 2(b) . That portion of the complaintdealing with subitem 2(c) does not include an allegation that the violation is serious. Iconclude that the omission of such an allegation with respect to subitem 2(c) is anoversight and that the Secretary intended to allege that all three subitems are serious aswell as willful in nature.[[15\/]] The cited standard provides, in pertinent part:Wire rope shall be taken out of service when any of thefollowing conditions exist:(i) In running ropes, six randomly distributed broken wires inone lay or three broken wires in one strand of one lay;(ii) Wear of one-third the original diameter of outside individual wires. Kinking,crushing, bird caging, or any other damage resulting in distortion of the ropestructure….[[16\/]] However, Savko’s testimony is not totally credible. Hisstatement that he observed the cable still in the flange of the pulley cannot bereconciled with his opinion that the pulleys were damaged when the broken end of the cabletraveled through them.[[17\/]] I base this finding not only on the physical evidenceof Exhibit G-1 but also on Savko’s testimony of his examination of the cable on the craneand on Kvilesz’s testimony of the breaks he saw when he inspected the cable one or twoweeks before the accident. However, Ricca stated that the citation subitems relating tothe broken wires were based solely on Exhibit G-1 (Tr. 96).[[18\/]] Although Vergona was previously cited for an allegedviolation of the crane standards (Tr. 761- 2; Ex. G-5), there is no evidence as to thefinal disposition of that citation.”