___________________________________
SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 00-0289
:
LAMPSON INTERNATIONAL, LTD., :
:
Respondent. :
___________________________________:
This matter is before the Commission on a direction for review entered by Chairman Thomasina V. Rogers on August 2, 2001. The parties have now filed a Stipulation and Settlement Agreement disposing of all issues on review. Accordingly, the Stipulation and Settlement Agreement is approved
FOR THE COMMISSION
/s/
Date: January 15, 2002
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
2002 OSHRC No. 1
00-0289
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, DC 20210
Richard J. Fiore, Regional Solicitor
Office of the Solicitor, U.S. DOL
230 South Dearborn Street, Room 844
Chicago, IL 60604
Donald H. Carlson, Esquire
Crivello, Carlson, Mentkowski & Steeves
The Empire Building
710 North Plankinton Avenue
Milwaukee, WI 53203
Robert A. Yetman
Administrative Law Judge
Occupational Safety and Health
Review Commission
1244 North Speer Boulevard, Rm. 250
Denver, CO 80204-3582
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
___________________________________
SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 00-0289
:
LAMPSON INTERNATIONAL, LTD., :
:
Respondent. :
___________________________________:
I
The parties have reached an agreement on the settlement and disposition of all outstanding issues in this proceeding currently pending before the Commission.
II
It is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and the Respondent, Lampson International, Ltd. (Lampson), that:
1. Complainant hereby withdraws Item 3 of Citation I in Docket No. 00-0289 for a violation of 29 C.F.R. � 1926.550(b)(2).
2. Complainant finds that, with respect to the subject Lampson LTL 1500 Series IIIA Transi-Lift Crane, a maximum load rating of 85% of tipping load is appropriate. As a result, the
Occupational Safety and Health Administration (OSHA) agrees that a maximum load rating of 85%
of tipping load should be regarded as a de minimus violation of 29 C.F.R. � 1926 .550(b)(2).
Further, if, during the course of any future inspection, OSHA detects a situation or condition
concerning a Lampson Transi-Lift® Crane system comprised of two independently powered load platforms, one of which acts as a mobile foundation for the boom and mast and
the other as an individually powered, self-propelled counterweight carrier, which could possibly
result in a citation for a violation of ANSI B30.5-1968 � 5.1.1.1 as incorporated by reference in
29 C.F.R. � 1926.550(b)(2) related to the maximum load rating of 85% for such cranes, as
incorporated by reference in 29 C.F.R. � 1926.550(b)(2), the Secretary will only cite for
violations that do not take into account the specifications of ANSI B30.5-1968 � 5.1.1.1
paragraph (d) (OSHA and Lampson agree that 29 C.F.R. � 1926.550(b)(2) does not incorporate
by reference subsequent editions of the ANSI standard)
3. Complainant hereby amends Citation 1, Item 1 (a) to delete, in the alternative, a
violation of 29 C.F.R. � 1926.550(b)(2) and amend the citation to read:
4. Complainant hereby amends Citation 1, Item 1 (d) to delete, in the alternative,
a violation of 29C.F.R. � 1926.550(b)(2).
5. Respondent hereby withdraws its Notice of Contest for Citation 1, Item I (a),
as amended herein, Citation 1, Item I (d), Citation 1, Item 2 for a violation of 29 C.F.R. � 1926.550
(a)(l9), and Citation 1, Item 3 for a violation of 29 C.F.R. � 1926.550(b)(2).
6. Complainant hereby amends Citation 1, Item 2, to read as follows:
7. Respondent hereby agrees to pay a penalty of $12,600 by submitting its check,
made payable to the U.S. Department of Labor, Occupational Safety and Health Administration,
to the Milwaukee Area Office within 45 days from the date of this agreement.
8. Each party agrees to bear its own fees and other expenses incurred by such party
connection with any stage of this proceeding.
9. Complainant and respondent understand and stipulate that this Agreement has
been entered into solely for the purpose of economically resolving disputes between the Secretary and
Lampson under the provisions of the Occupational Safety and Health (OSH) Act of 1970, and
that Lampson is not making any admission against its interests in any private civil litigation
pending or which may later be brought as a result of the accident at Miller Park, Wisconsin,
on July 14, 1999. The agreements, statements, stipulations and actions shall not be used for any
other purpose except for subsequent proceedings and matters brought by the Secretary of
Labor directly under the provisions of the Act.
10. Respondent states that no authorized representatives of affected employees have elected
party status.
11. The parties agree that this Stipulation and Senlement Agreement is effective upon
execution.Miller Park, Milwaukee, Wisconsin: The manufacturer's chart
capacities do not consider effect of wind on the suspended load.
On July 14, 1999, prior to the pick of the 4R Block 3 the employer
did not adequately consider the effect of wind on the suspended
load on the manufacturer's chart capacities of the LTL 1500 Series
A Transi-Lift crane.
29 C.F.R. 1926.550 (a) (19): All employees of others were not
kept clear of loads about to be lifted and of suspended loads:
a. Miller Park, Milwaukee, Wisconsin: Employees of others
were not kept clear of the 4R Block 2 while it was suspended
during the morning of the pick and in the early afternoon.
b. Miller Park, Milwaukee, Wisconsin: Iron workers
employed by others installing the counterweights were not kept
clear of 4R block 3 while it was suspended during the morning of
the pick.
3
12. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at its main office on the 17th day of December, 2001, pursuant to Commission Rules 7 and 100, and will remain posted for a period of ten (10) days.
Dated this 10th day of December, 2001.
Respectfully submitted,
HOWARD M. RADZELY
Acting Solicitor of Labor
JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health
DANIEL J. MICK
Counsel for Regional Trial Litigation
/s/ /s/
DONALD H. CARLSON PETER J. VASSALO
Crivello, Carlson, Mentkowski Attorney for the
& Steeves, S.C. Secretary of Labor
The Empire Building 200 Constitution Ave., N.W.
710 North Plankinton Avenue Room S-4004
Milwaukee, WI 53203 Washington, D.C. 20210
___________________________________
SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 00-0289
:
LAMPSON INTERNATIONAL, LTD., :
:
Respondent. :
___________________________________:
APPEARANCES:
Kevin Koplin, Esq., and Andrea L. Phillips, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois
Donald H. Carlson, Esq., Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee,
Wisconsin
Before: Administrative Law Judge Robert A.Yetman
This is a proceeding arising under �10c of the Occupational Safety and Health Act of 1970, 29 U.S.C. �651, et seq. (the "Act") to review citations issued by the Secretary of Labor pursuant to �9(a) of the Act and a proposed penalty issued pursuant to �10(a) of the Act.
On January 12, 2000, Respondent, Lampson International, LTD (Lampson), was issued a serious citation alleging four serious violations with subparts and a willful citation alleging two willful violations with subparts as a result of an inspection of a fatal accident involving a crane collapse which occurred on July 14, 1999 in Milwaukee, Wisconsin. Respondent filed a timely notice contesting the alleged violations and, in answering the complaint filed by the Secretary of Labor, admits that it is a corporation engaged in a business affecting interstate commerce. However, Respondent denies that the Review Commission has jurisdiction of this matter on the ground that it was not an employer within the meaning of the Act. Respondent generally denies the remaining allegations in the complaint.
Pursuant to a contract with the Southeastern Wisconsin Baseball Park District, the joint venture of Huber, Hunt, Nichols, Clark and Henzinger (HCH) began construction of a major league baseball stadium known as Miller Park during 1998 in Milwaukee, Wisconsin. HCH, as general contractor, subcontracted the assembly and placement of a retractable steel roof for the stadium to Mitsubishi Heavy Industries of America (MHIA). MHIA, in turn, subcontracted various work activities related to the construction and placement of the roof to approximately 15 subcontractors, including Respondent Lampson.
Respondent is engaged in the business of manufacturing and leasing cranes for construction projects throughout the world. It maintains a fleet of over 300 cranes available for lease. Although MHIA had leased a number of cranes from Respondent for the Milwaukee worksite, the crane relevant to this matter is known as a Transi-Lift 1500 and named "Big Blue." Transi-Lift cranes are specialized cranes designed for the largest and heaviest lifts. The cranes were originally designed and manufactured by Respondent during the late l970's and currently there are seven Transi-Lift cranes in existence. Big Blue, the crane relevant to this case, was specially designed and manufactured during 1993 for a three-year heavy lift bridge project in England (Exh. C-17 Lampson deposition Tr. 13). The crane was assembled on a barge without crawlers to perform the work activities at that site. The Milwaukee stadium jobsite was only the second job for Big Blue.
Big Blue arrived disassembled at the Milwaukee jobsite. The components of the crane had been placed on approximately 100 trucks for delivery and assembled over a six-week period (Tr. 1051,1057). Unlike conventional crawler cranes, Big Blue sits upon two sets of crawlers with a platform, known as the stinger, connecting the crawlers. The distance between the center lines of the crawlers is 120 feet and the boom extends to approximately 580 feet in the air (Exh. R-14). Respondent's sales literature describes the Transi-Lift as follows:
"The Lampson Transi-Lift is a patented crane configuration featuring high capacity characteristics of fixed stiff leg or luffing derrick equipment coupled with the mobility and flexibility of a conventional crawler crane. Transi-Lift is capable of all lift crane functions including hoist boom, swing, and travel with loads. Transi-Lift was innovated and developed by Lampson in response to ever-increasing heavy lift load requirements associated with a rigging system imposing minimum impact and disruption to other construction jobsite work areas, activities and schedules" (Exh. R-14).
The crane designation, 1500, means that it has a potential lifting capacity of 1500 tons (3,000,000 pounds) (Exh. C-17, Tr. 18). The crane requires four crew members. Each crawler has an operator to independently move each crawler when maneuvering the crane and a hoist operator to manipulate the boom mast and load. Because of the large size and configuration of the crane, the operators are unable to see each other. Thus, a "flagger" supervisor is required to coordinate the activities of the operators via radio (Tr. 1005). The hoist operator and the flagger, in particular, are highly skilled and experienced individuals (Tr. 1032). Indeed, the flagger supervisor and hoist operator generally work as a team (Exh. C-17, Tr. 162). Allen Watts and Fred Flowers, the flagger and hoist operator involved in this matter had worked as a team for eighteen years (Tr. 625,626). In the event that the hoist operator or flagger supervisor is replaced on a job, the remaining member of the team will also be replaced (Exh. C-17, Tr. 162).
As of July 14, 1999, Big Blue had successfully completed approximately ten heavy lifts at the worksite (Tr.151). On that date the crane was scheduled to lift a large section of the roof consisting of steel trusses and designated as 4R3. The dimensions of 4R3 were approximately one hundred ten feet wide, two hundred to two hundred twenty feet long and thirteen feet high with a shape similar to a curved aircraft wing (Tr.154,595, Exh. C-12(b)). The piece weighed 913,000 pounds with add-ons such as cable, headache ball, etc., contributing an additional 32,400 pounds to the load to be lifted (Tr.176). The maximum capacity of the crane as configured on that day was 1,040,000 pounds. The total weight to be lifted was 97% of capacity (Tr.176).
Big Blue's crew on July 14, 1999 consisted of Lampson employees Frederick Flowers, hoist operator, Steven Aldrich, mechanic and crawler operator and Allen Watts, flagger and supervisor. Mr. Daniel Finucan, an employee of subcontractor Danny's Construction, was the second crawler operator. The lift was one of the more difficult and complicated lifts at Miller Park (Tr.630). Lifts of this nature are generally scheduled months in advance (Tr.53). Engineering drawings for the rigging attaching the load to the crane had been completed by a Lampson employee and a prelift conference was held on the morning of the lift with all key individuals in attendance (Tr.158,159). Big Blue commenced the lift at approximately 9:30 a.m. and traveled approximately 400 feet with the load a few feet above the ground (Tr.162). At 5:15 p.m., with the load approximately 300 feet in the air, the crane and load collapsed striking and fatally injuring three employees in a manbasket which was suspended from another crane. Crawler operator Flowers was thrown from the operator's position and injured (Tr.755).
As a threshold issue, Respondent argues that it was not an employer within the meaning of the Act and, therefore, should not have been cited for any safety violations which may have been committed at the jobsite. In support of its argument, Respondent points to the Supreme Court decision Nationwide Mutual Insurance Co. v. Darden 503 U.S. 322 (1952), for the proposition that the term "employee" under the Occupational Safety and Health Act must be construed by using common law tests (1) The court set forth the elements of the test as follows:
"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party."
Nationwide supra at 323.
By applying the common law test for establishing an employment relationship, Respondent asserts that controlling weight must be given in this case to (a) the contractual terms between the parties and (b) who exercised control over the workers operating the crane (Respondent's brief, pages 20-29). With respect to the "contract," Respondent points to the lease agreement between Respondent and MHIA wherein Respondent leased "Big Blue" to MHIA. The lease is known as a "bare lease" (Tr.1046-1047,1049; R-1) and Respondent specifically relies upon portions of paragraphs thirteen and fourteen of the document to support its position that, for purposes of this case, it was not an employer within the meaning of the Act (Respondent's Brief p. 24). The relevant portions of the contract relied upon by Respondent are as follows:
13. REPAIRS AND OPERATION COSTS: [L]essee shall maintain the equipment and its attachments or devices in good, safe operating condition in accordance with manufacturer specifications. . . . This includes all safety related devices such as load indicating devices, anti-two block devices, electronic boom angle indicators, etc.
14. SUPPLYING OPERATORS: [S]hould the Lessor loan any operators or other workmen for the equipment, they shall be employees of the Lessee under Lessee's exclusive jurisdiction, supervision, and control during the rental period, and the Lessee shall also pay them such traveling expenses, board and lodging as may be agreed between the Lessee and Lessor. The Lessee shall provide and pay for all wages, workmen's compensation insurance, fringe benefits, and pay all payroll taxes required by law applying to such operator and workmen. . . .Lessor does not represent, warrant or guarantee to Lessee or anyone that Lessor supplied equipment operators have been properly trained or instructed to operate the leased equipment. Accordingly, all Lessor supplied equipment operators shall become Lessee's responsibility and shall be tested and pre-qualified by Lessee to determine their competency, experience and reliability to operate the leased equipment.
(Respondent's Brief p. 24,25) (2)
It is undisputed that Frederick Flowers, Steven Aldrich and Allen Watts were long- time
employees of Respondent and remained on Respondent's payroll during the Miller Park project. It is
also undisputed that Daniel Funican was employed by Danny's Construction Company and was in
training as a crawler operator pursuant to union requirements. Nevertheless, Respondent insists that
Watts, Flowers and Aldrich were "loaned" employees under the exclusive control of MHIA pursuant to
section 14 of the lease and the crane was leased to MHIA under the exclusive control of MIHA
pursuant to section 13 of the lease. Moreover, Flowers, Aldrich and Watts remained on Lampson's
payroll, according to Respondent, at the request of MIHA "for union reasons" (Tr. 1054, Resp. Brief p.
24). As further evidence that MHIA was the employer, Respondent asserts that the Lampson
flagger/supervisor originally assigned to Miller Park, Milo Bengston, was "fired" by MHIA and
replaced by another Lampson "loaned" employee, Allen Watts (Tr.306,379-380,568,241-242). In
addition, the MHIA superintendent on site, Victor Grotlisch, had authority to directly supervise the
work activities of the loaned employees (Tr. 1025-1030) and the MHIA safety director, Wayne Noel,
was responsible for "the safety supervision of activities of the loaned employees" (Tr.84,669, Resp.
Brief p. 12). . Respondent, in its memorandum of law, lists specific instances which it believes supports the
conclusion that MHIA rather than Respondent was the employer of Flowers, Aldrich and Watts: 1. MHIA had the ability to demobilize and remobilize the Transi-Lift crew
depending on work conditions (Tr.321,323, R-71). 2. MHIA controlled the number of hours the crane crew spent on the jobsite
(Tr.334-336,560). 3. Invoices prepared by Lampson for hours worked by the crew were paid by
MHIA. 4. MHIA controlled the communication of the crane crew with other
contractors (Tr.364). 5. MHIA "fired" loaned employee Milo Bengston. 6. MHIA was "involved" in hiring loaned employees (Tr.359). 7. The MHIA supervisor, Victor Grotlisch, had authority to supervise the Big
Blue crew (Tr.1028-1030). 8. Supervisor Watts was required to report to MHIA on all maintenance
records, inspection records, submittal of documentation for safety and OSHA
requirements and overall scheduling and coordination (Tr.216-217). 9. MHIA directed the means, methods and the details of the crane's operation
(Tr.1019-1020). Thus, according to Respondent, the relationship between MHIA and Lampson's loaned employees
satisfies the common law test for establishing an employer-employee relationship between MHIA and
the loaned employees. Moreover, the terms of the lease and the control exercised by MHIA, as
demonstrated above, support the conclusion that Lampson was not an employer at the Miller Park
project. Respondent relies upon the finding of the Seventh Circuit Court of Appeals in Secretary of
Labor v. CH2M Hill, Inc., 192 F.3d. at 721: While perfunctory language that does not represent the true responsibilities of a
particular employer should not absolve it from complying with the regulations,
language exempting an employer from particular responsibilities that the facts
confirm the employer does not actually retain cannot be casually thrown aside.
Contracts represent an agreed upon bargain in which the parties allocate
responsibilities based on a variety of factors. To ignore the manner in which the
parties distributed the burdens and benefits is contrary to our notion of contract law. . . . The Secretary and Commission cannot ignore the fact that parties to a contract bargained for one to maintain safety responsibilities and for the other to refrain from such responsibility. (Citations omitted) According to Respondent, the terms of the lease and the control exercised by MHIA at the worksite are
sufficient to support the conclusion that MHIA, rather than Respondent, was the "employer" of the Big
Blue crew members within the meaning of the Act. Complainant, however, argues that the actual responsibilities and conduct of the parties at the
worksite are the determining factors rather than the language in the lease agreement which, according
to Complainant, did not reflect the actual intent of the parties nor the actual conditions existing at the
worksite (Complainant's Reply Brief p. 2). In support of this argument, Complainant points to a
number of factors which, in Complainant's view, supports the conclusion that once having been given
an assignment by MHIA, such as lifting piece 4R3, Respondent controlled the work activity required to
complete the assignment. These factors are (1) flagger/superintendent Watts inspected Big Blue; (2)
Watts completed the "critical lift plan" for lifting 4R3; (3) Watts participated in conducting the pre-lift
meeting at which time he explained the manner in which the lift would be conducted; (4) Watts
calculated the crane's capacity for the lift and determined the procedure for lifting the piece; (5) he
supervised the rigging of the piece and the attachment of a concrete counter weight to the piece; (6);
Watts checked the ground conditions to ensure that the crane was level; (7) Watts "choreographed"
every move of the lift and directed the activities of the other crew members and (8) Respondent's
employees engineered the rigging for 4R3. Finally, Respondent's employees had extensive experience
and skill in the operation of cranes similar to "Big Blue" and Allen Watts had the authority to stop or
decline to initiate an unsafe lift. Complainant relies heavily upon the Commission decision in Vergona Crane Co., 15 BNA
OSHC 1782 (1992) as support for the proposition that "conduct and not contract determines employer
status under the OSH Act: (Reply Brief p.3). In that case, considering facts similar to the instant
matter, the Commission concluded, notwithstanding language contained in a "bare lease" agreement
leasing a crane operated by Respondent Vergona's employees, that the actual control exercised by
Respondent through its employees at the worksite supported the conclusion that Vergona was properly
cited as the employer responsible for certain violations which occurred at the worksite. Complainant
argues that the unique nature of Big Blue required highly skilled operators and only Respondent's
employees possessed the necessary skills to operate the crane (Complainant's Reply Brief p. 4,5). Based upon the record in this matter it is concluded that Respondent was the employer of
Frederick Flowers, Steven Aldrich and Allen Watts for all relevant times at the Miller Park worksite.
First, notwithstanding the language contained in paragraph 14 of the bare lease supra, it is clear that
Respondent Lampson chose the employees who were responsible for the operation of Big Blue.
William Lampson, Respondent's President testified as follows: Q. How did you decide which Lampson people were going to be assigned to the
Miller site project if, in fact, you did? A. I participated in the decision. We have a number of superintendent-type
people that are qualified to be assigned to these projects, as well as a number of
qualified operator-mechanic types that are qualified, and those were people that
were available that were qualified. Q. Were your choices of people reviewed? Was the choice of employees
subject to any review by Mitsubishi? Were they provided with CV's? Did they
have any discussions with you whether these people were good enough? A. I do not recall that, if they asked for resumes or not. Q. When you determine what (sic) people you are going to supply to these
clients, crane operators were obviously important? A. Yes. Q. What about crawler operators, is that always part of the package? A. Not as critical. Depends on the capabilities of the customers and their
employees. Q. Was it your intention to supply crawler operators for this job? A. Just the one. (Exh. C-17; Tr. 91) According to Lampson, whether a crane is leased to a customer with or without a crew
depends upon the sophistication of the equipment and the talent of the customer. A conventional crane
would be leased without an operator if the customer had the "talent" to operate the crane (Exh. C-17,
Tr. 37). However, it is clear that Transi-lift cranes and "Big Blue" in particular are extraordinary
cranes designed and constructed for the heaviest and most unique load lifts. Since Respondent
designed and manufactured these cranes, its employees possess the most operational experience on a
national and international basis (Exh. C-178; Tr. 88-89). The MHIA supervisor on site, Victor
Grotlisch, stated that he had no prior experience with a Transi-lift and was not qualified to supervise
the operation of the crane. Indeed, according to Grotlisch, MHIA "could not rent this crane without the
operation of Lampson. The crane was not available to us. It was never presented to us unoperated.
The only way Lampson would provide that piece of equipment to Mitsubishi was operated" (Tr. 209). An illustration of the control that Respondent maintained over the crew of Big Blue is the
"Milo Bengston" incident. According to Mr. Lampson, Milo Bengston was one of his most
experienced flagger/supervisors for Transi-Lift cranes. Mr. Bengston was originally assigned as the
flagger for Big Blue at Miller Park and Randy Miese was assigned as hoist operator. Conflicts
developed between MHIA superintendent Grotlisch and Mr. Bengston and numerous requests were
made by MHIA to Lampson for Mr. Bengston to be removed from the jobsite. Mr. Lampson was
reluctant to remove Mr. Bengston because of his expertise (Exh C-17; Tr. 96-104). However,
Lampson stated "I could tell (MHIA) to go to hell. 'If he (Bengston) goes, the machine goes, too,' and
then fight about it. I did not think that was appropriate. We had another superintendent available that
was certainly capable of doing it" (C-17, Tr. 106). Lampson replaced Bengston with Allen Watts. His
hoist operator, Randy Miese, was also replaced by Frederick Flowers who had worked frequently with
Allen Watts as hoist operator for the Transi-Lift. (3)
Although the Supreme court in Nationwide Mut. Ins. Co. supra listed a number of elements
that must be considered to establish a common law test for an employer-employee relationship, the
Court also stated "Since the common-law test contains no shorthand formula or magic phrase that can
be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed
with no one factor being decisive" (503 US at 324). Moreover, although contract language should not
be ignored as an element to be considered as part of the analysis, "the question as to what
responsibilities a particular defendant maintained should turn on a factual inquiry based upon a review
of the record including the language of the contract" CH2M Hill, Inc. v. Herman 192 F.3d 711, 721
(7th Cir. 1999) (Emphasis supplied). The record of this matter reveals that the crane known as "Big
Blue" is unique in relation to other cranes and designed by Respondent to accomplish the heaviest and
most difficult lifts. Since Respondent designed, manufactured, and owned all seven of the Transi-Lifts
in existence, the only people experienced in the operation of the crane were employed by Respondent
(Tr. 378,329). (4) The record supports the conclusion that Respondent would decline to lease a Transi-Lift without Lampson personnel as the flagger/supervisor and hoist operator. In this case, Mr. Finucan
was assigned reluctantly as a crawler operator because of a union requirement (Tr. 486-487). As stated
by supervisor Bengston regarding the crawler operator "[i]t's not something we like to do. We'd just
as soon bring our own operators, but sometimes the union won't let us" (Tr. 288). Respondent also provided other support services for the Miller Park project. For example,
Lampson engineer, John Bozing was assigned to produce rigging drawings for the heavy lifts, assist in
the evaluation of site conditions relating to lifts and "assist in the coordination of engineering elements
to allow that the picks take place" (Tr. 358). Randolph Stemp, a Lampson engineer, prepared the load
charts for Big Blue at the worksite (Tr. 733). The load chart contained the crane's rated capacity
figures as well as the manufacturer's specifications regarding the use of Big Blue (Exh. C-5).
Moreover, during the course of the Miller Park project, ten of Respondent's employees were assigned
to the worksite to perform various work activities and remained on Respondent's payroll (Exh. R-24).
Supervisor Watts was responsible for the safe completion of the lift and the safety of the crane crew
members (Tr. 668-669). Because of the specialized knowledge and experience required to supervise and operate Big
Blue for heavy lifts, as in this case, it is clear, once having been given the lift assignment, that the lift
was controlled by Lampson employees including the authority to decline to commence the lift or to
abort the lift for reasons of safety (Tr. 657, Exh. C-3, p. 3). As for MHIA, the record supports the
conclusion that, once having given the lift assignment, that company relied upon the specialized
expertise of Respondent's employees to safely complete the lift. Accordingly, Respondent, through its
employees, maintained control of the work activities of Big Blue and retained responsibility for the
safe operation of the crane and its crew members. See: Vergona Crane 15 BNA OSHC 1782 (1992). (5)
Thus, Respondent was an employer of employees at the Miller Park project within the meaning of the
Act. On January 12, 2000, Complainant issued Willful and Serious citations to Respondent. By
motion dated June 21, 2000, Respondent sought partial summary judgment as to Serious citation l,
items 3 and 4 and Willful citation 2, item 1. By cross motion dated June 30, 2000, Complainant
sought partial summary judgment for Serious citation 1, item 3 and opposed Respondent's motion as to
Serious citation 1, item 3 and Willful citation 2, item 1. Complainant declined to respond to
Respondent's motion regarding Serious citation 1, item 4. A Decision and Order was issued by the
undersigned on July 20, 2000 granting Respondent's motion for partial summary judgment for Serious
citation 1, item 4. The remainder of Respondent's motion for partial summary judgment and
Complainant's cross motion for summary judgment were denied without prejudice. The Decision and
Order is incorporated herewith and made a part of this Decision and Order. Complainant withdrew
Serious citation, Item 1c and Willful citation, Item 1 prior to the trial of this matter. Serious citation,
Item 1(b) was withdrawn by Complainant at the hearing (Tr. 796). Complainant also amended Serious
citation, Item 3 as an Other-Than-Serious violation and amended Willful citation, item 2 to read in the
alternative as a Serious violation within the meaning of the Act. The alleged violations remaining in
dispute as set forth in the citations are as follows: I. Serious Citation 1, Item 1(a) 29 CFR 1926.550(a)(1): The employer did not comply with manufacturer's specifications and
limitations applicable to the operation of the LTL 1500 Series III A Transi-Lift crane: (a) Miller Park, Milwaukee, Wisconsin: The manufacturer's chart capacities do
not consider effect of wind on the suspended load. On July 14, 1999, prior to the
pick of the 4R block 3 the employer did not consider the effect of wind on the
suspended load on the manufacturer's chart capacities of the LTL 1500 Series III A
Transi-Lift crane. (6) 29 CFR 1926.550(b)(2) as follows: The conditions described in Items a and d violate American
National Standards Institute, B30.5-1968, Section 5-1.1.1(d) which requires that the user of the crane
take into account such factors as wind, ground conditions and careful operation of the crane on the
effectiveness of stability factors on the load rating of the crane. The standard cited by Complainant reads in its entirety as follows: �1926.550 Cranes and derricks. (a) General requirements. (1) The employer shall comply with the
manufacturer's specifications and limitations applicable to the operation of any and
all cranes and derricks. Where manufacturer's specifications are not available, the
limitations assigned to the equipment shall be based on the determinations of a
qualified engineer competent in this field and such determinations will be
appropriately documented and recorded. Attachments used with cranes shall not
exceed the capacity, rating, or scope recommended by the manufacturer. The alternative pleading, American National Standards Institute standard B30.5-1968, Section 5-1.1.1(d) reads in its entirety as follows: Section 5-1.1.1 d. The effectiveness of these preceding stability factors will be influenced by such
additional factors as freely suspended loads, track, wind or ground conditions,
condition and inflation of rubber tires, boom lengths, proper operating speeds for
existing conditions, and, in general, careful and competent operation. All of these
shall be taken into account by the user. The gravamen of Complainant's allegation for this item appears to be twofold; first, Respondent
violated the manufacturer's 20 mph wind limitation and secondly, wind sail calculations were not
made for the piece being lifted (Complainant's brief p. 31,32). With respect to the first allegation, it is
identical to the violation alleged at subparagraph (d) of Serious citation, item 1. That alleged violation
is discussed infra. Accordingly, this item is vacated as duplicative of subitem (d). The surviving
allegation is the alternative pleading that Respondent violated ANSI standard 5-1.1.1(d) as adopted by
29 CFR �1926.550(b)(2). The essence of the allegation is the failure of Respondent to conduct a
formal wind study to determine the effect of wind upon the suspended load. The ANSI standard cited,
however, is remarkable for its imprecision and its failure to provide any guidance to employers subject
to its requirements as to what, if anything, must be done to comply with its provisions. See East Penn
Mfg. Co., Inc. 894 F.2d 640, Diebold, Inc. 58F.2d 1327,1335; Beaver Plant Operations 2000 CCH
OSHD 32,187. The standard cited herein merely requires, inter alia, that wind "shall be taken into
account" when operating a crane. It is true that the record in this matter contains several references to
the fact that wind studies are often conducted for loads being lifted as a matter of industry practice.
However, this matter was not presented nor was it defended as a general duty clause violation (Section
5(a)(1) of the Act). Moreover, reports of wind speed were made by hoist operator Flowers to flagger
Watts throughout the lift. Based upon his extensive experience in the operation of cranes for heavy
lifts, it is reasonable to infer that Watts took the wind reports "into account" during the lift. Since there
is nothing within the four corners of the ANSI standard that requires a formal wind study nor has
Complainant cited any standard that requires a wind study beyond what is required by the ANSI
standard cited, this item must be VACATED. II. Serious citation, Item 1(d). 29 CFR 1926.550(a)(1): The employer did not comply with manufacturer's specifications and
limitations applicable to the operation of the LTL 1500 Series III A Transi-Lift crane: (d) Miller Park, Milwaukee, Wisconsin: The LTL 1500 Series III A Transi-Lift
crane has a 20 mph wind rating. On July 14, 1999, during the pick of the 4R block
3 the crane was operated in winds exceeding the manufacturer's 20 mph wind
rating. There is no dispute between the parties that the load chart developed for Big Blue established
a 20 mile per hour wind limitation for the crane without a load (Exh. C-5). The chart had been
prepared by Randolph Stemp, an engineer employed by Respondent, and was located at the hoist
operator's position. The load chart also contained the crane's rated capacity figures as well as the
specifications and limitations regarding the crane's use (Exh. C-5). The capacity figures on the chart
are calculated for wind speeds up to 20 miles per hour; however, if the wind exceeds that limit, the
chart is no longer valid (Tr. 734,735). Thus, wind speeds exceeding 20 miles per hour reduce the
lifting capacity of the crane (Tr. 734,735). Moreover, the wind limitation includes wind gusts (Tr.
588,906,930). Indeed, wind gusts are capable of creating greater stress on the crane than sustained
winds (Tr. 601). The load chart was utilized by Allen Watts to determine the crane's capacity for the July 14th
lift (Exh. C-6, Tr. 628,629). In addition, a wind indicator device known as an anemometer, was placed
on the boom of the crane at a height of approximately 175 feet (Tr. 654). The monitor for the device
was located in the hoist operator's cab and Frederick Flowers, the hoist operator, reported the wind
speed to Allen Watts approximately every five to ten minutes during the July 14th lift (Tr. 750,759).
The lift commenced at approximately 9:15 a.m. and Flowers reported constant wind speeds of 16-20
miles per hour during the morning (Tr. 754). Later in the afternoon Flowers reported wind gusts of 28-30 miles per hour (Tr. 755) with a duration of approximately 15 seconds per gust. The crane and its
load collapsed at approximately 5:15 p.m. For the hour preceding the collapse, Flowers reported the
highest wind gusts of the day to Watts; between 28-30 miles per hour. In order to establish that Respondent failed to comply with the aforesaid standard, the
Secretary must prove that (1) the standard applied, (2) the employer failed to comply with the terms of
the standard, (3) employees had access to the cited conditions and (4) the Respondent knew, or with
the exercise of reasonable diligence, could have known of the violative conditions, ASTRA
Pharmaceutical Products, Inc. 1981 CCH OSHC 25,578, aff'd 681 F.2d 69 (1st Cir. 1982); Secretary
of Labor v. Gary Concrete Products,15 BNA OSHC 1051, 1052, 1991 OSHD 29,344 (1991) Carlisle
Equip. Co. v. Secretary of Labor 24 F.3d 790 (1994). The burden of establishing these elements rests
with the Secretary of Labor. Moreover, the elements must be established by a preponderance of the
evidence. Armor Elevator Co. 1 OSHC 1409, 1973-74 OSHD �16,958 (1973). The Commission has
defined "preponderance of the evidence" as "that quantum of evidence which is sufficient to convince
the trier of fact that the facts asserted by a proponent are more probably true than false" Ultimate
Distrib Systems, Inc., 10 OSHC 1569, 1570 (1982). The record in this matter substantially supports the conclusion that Respondent violated the
standard as alleged. First, there is no dispute that the standard applies to Respondent as the
manufacturer and operator of the crane. Secondly, there is substantial evidence on the record that the
wind on July 14th exceeded the 20 mile per hour limitation and Respondent's supervisor, Allen Watts,
had knowledge of the wind speeds. The hazards presented by wind speeds in excess of 20 mpg, such
as tipping hazards, are well known to Respondent's representative (Watts) (Tr. 23-27,31,301) and
individuals employed by Respondent were exposed to serious injury or death resulting from those
hazards. Based upon the foregoing, this citation item is AFFIRMED as a Serious violation. Section 17(j) of the Act requires that due consideration must be given to four criteria in
assessing penalties: the size of the employer's business, gravity of the violation, good faith and prior
history of violations. In Secretary of Labor v. J.A. Jones Construction Company, 15 BNA OSHC 2201
(1993), the Commission stated: These factors are not necessarily accorded equal weight; generally speaking, the
gravity of a violation is the primary element in the penalty assessment. Trinity
Indus., Inc., 15 BNA OSHC 1481, 1483, 1992 CCH OSHD �29,582, p. 40,033 (No.
88-2681, 1992); AFTRA Pharmaceutical Prods., Inc., 10 BNA OSHC 2070 (No. 78-6247), 1982). The gravity of a particular violation, moreover, depends upon such
matters as the number of employees exposed, the duration of the exposure, the
precautions taken against injury, and the likelihood that any injury would result.
Kus-Tum Builders, Inc. 10 BNA OSHC 1128, 1132, 1981 CCH OSHD �25,738 p.
32, 107 (No. 76,2644, 1981). In this case, the gravity of the violation is very high. In view of the complex nature of the lift
and the resulting deaths to employees, it is concluded that the maximum penalty of $7,000.00 must be
assessed for the violation. III. Serious Citation 1, Item 2. The citation issued to Respondent reads as follows: 29 CFR 1926.550(a)(19): All employees were no kept clear of loads about to be lifted and of
suspended loads: (a) Miller Park, Milwaukee, Wisconsin: Employees were not kept clear of the
4R Block 3 while it was suspended during the morning of the pick and in the early
afternoon. (b) Miller Park, Milwaukee, Wisconsin: Iron workers installing the counter
weights were not kept clear of 4R Block 3 while it was suspended during the
morning of the pick. The standard set forth at 29 CFR �550(a)(19) reads in its entirety as follows: All employees shall be kept clear of loads about to be lifted and of suspended loads. Shortly after the roof section designated as 4R3 had been lifted off the ground, it became clear that a
counterweight had to be attached to the piece to ensure that it was at the proper angle for placement
(Tr. 631). Without the counterweight, the load would have to be lowered to the ground and re-rigged
to insure proper alignment. This process would have taken approximately two to four hours (Tr.
632,663). Instead, Mr. Watts made the decision to attach the concrete counterweight (Exh. C-12(b),
Tr. 631) when the load was approximately 8-10 feet above the ground (Tr. 397). Ironworkers attached
the counterweight to the load (Tr. 396) and Mr. Watts was present during that time (Tr. 421).
Thereafter, it was necessary to rotate the load and that procedure was accomplished by using two
forklifts (Tr. 400-402, 446-447). The forklift drivers were required to go beneath the load in order to
accomplish this task (Tr. 447-449) and one of the drivers was under the load for approximately 30
minutes (Tr. 449). Mr. Watts was present and observed the rotation to the load(Tr. 633). In its brief,
Respondent does not dispute the factual basis for the allegation. It argues, however, that MHIA had
authority to control the worksite including the activities of Lampson employees (Brief p. 28). Thus, according to Respondent, it should not be held responsible for
violations which occurred under the general supervision of MHIA. The issue of Respondent's status as an employer within the meaning of the Act has been
discussed infra. Thus, Respondent, through the actions of its employee, Allen Watts, is responsible as
an employer for the violation alleged. Accordingly, the violation is AFFIRMED. Since employees
were exposed to serious injury or death while working below the suspended load, the item is affirmed
as a Serious violation. Moreover, in view of the high gravity factor, the penalty proposed by the
Secretary in the amount of $5,600.00 is assessed for the violation. IV. Other Than Serious Citation, Item 3 The citation item issued to Respondent reads as follows: 29 CFR 1926.550(b)(2): Section 5-1.1.1 American National Standards Institute B30.51968, Safety
Code for Crawler, Locomotive and Truck Cranes adopted by 29 CFR 1926.550(b)(2): Load ratings -
Where stability governs lifting performance. The maximum load rating as a % of tipping was rated in
excess of the 75% of tipping loads. (a) Miller Park, Milwaukee, Wisconsin: The Lampson LTL 1500 Series III A
Transi-Lift crane was rated at 85% of tipping in excess of the maximum load rating
of 75% of tipping loads for a crawler crane without outriggers. The cited ANSI standard for crawler, locomotive and truck cranes reads in its entirety as follows: 5-1.1.1 Load Ratings - Where Stability Governs Lifting Performance. a. The margin of stability for determination of load ratings, with booms of
stipulated lengths at stipulated working radii for the various types of crane
mountings is established by taking a percentage of the loads which will produce a
condition of tipping or balance with the boom in the least stable direction, relative to
the mounting. The load ratings shall not exceed the following percentages for
cranes, with the indicated types of mounting under conditions stipulated in 5-1.1.1-b. and -c. Maximum Load Ratings Type of Crane Mounting (%of Tipping Loads) Locomotive, without outriggers Booms 60 feet or less 85 Booms over 60 feet 85* Locomotive, using outriggers fully extended 80 Crawler, without outriggers 75 Crawler, using outriggers fully extended 85 Truck and wheel mounted without outriggers or using outriggers fully extended 85 *Unless this results in less than 30,000 pound-feet net stabilizing moment about the rail, which shall
be minimum with such booms. There is agreement between the parties that all crawler, locomotive and truck cranes are capable of
tipping forward if they attempt to lift loads which exceed the weight lifting capacity for the crane (Tr.
901). Upon determining the "tipping capacity" of a crane, the ANSI standard cited above must be
applied to determine the maximum weight that may be lifted in relation to the predetermined tipping
capacity. Respondent designed and manufactured the first Transi-Lift during 1978. As previously
stated, Transi-Lift cranes sit upon two, rather than one, set of crawlers. Although the Transi-Lift
possesses more attributes of a crawler crane than any other crane (Tr. 907), the configuration of the
Transi-Lift which places the boom upon a platform connecting the two sets of crawlers, in the opinion
of Respondent's engineers, makes the Transi-Lift more stable than the typical crawler crane (Tr. 911-914). Respondent's engineer, Randolph Stemp, stated that the Transi-Lift could be rated at 90 - 95%
of tipping capacity because of its unique design and high stability (Tr. 901-906, 914). However,
because the ANSI standard was published ten years before the Transi-Lift design came into existence,
Respondent's engineers merely referred to the chart entry for crawler cranes with outriggers as the
closest applicable rating for the Transi-Lift (Tr. 901-902). Thus, the Transi-Lift was given a load
capacity of 85% of tipping because Respondent's engineers concluded that the rating for crawler
cranes with fully extended outriggers most closely described the configuration of the Transi-Lift. Complainant disputes the conclusion that Big Blue was designed with the equivalent of
outriggers (Tr. 624, Complainant's brief p. 20). However, Complainant failed to present any evidence
that the Transi-Lift was less stable than a crane with outriggers fully extended. Nevertheless, the
record supports the conclusion that Big Blue was not equipped with outriggers as contemplated by the
1968 ANSI standard. Thus, the Transi-Lift did not comply with the literal requirements of the
technical specifications of the ANSI standard as promulgated at that time. Moreover, Respondent
declined to seek a variance from OSHA with respect to the 75% load limitation. On this basis, I am
constrained to hold that Respondent failed to comply with the literal terms of the standard. However,
Complainant has amended this item as an Other-Than-Serious violation, and that amendment has been
granted. Based upon the apparent low gravity of this violation, a penalty in the amount of $100.00 is
ASSESSED. V. Willful Citation 2, Item 2 The citation item issued to Respondent reads as follows: 29 CFR 1926.550(b)(2): Section 5-2.3.3(b) American National Standards Institute, B30.5-1968, Safety
Code for Crawler, Locomotive and truck Cranes as adopted by 29 CFR 1926.550(b)(2): Adjustments
were not maintained to assure correct functioning of components: (a) Miller Park, Milwaukee, Wisconsin: The load indicator on the LTL 1500
Series III A Trans-Lift (sic) was not calibrated to the manufacturers specifications. IN THE ALTERNATIVE 29 CFR 1926.550(a)(1): The employer shall comply with the manufacturer's specifications and
limitations applicable to any and all cranes. Section 5-2.3.1 of the cited ANSI standard relates to the maintenance of crawler, locomotive and truck
cranes. Section 5-2.3.3(b)reads in its entirety as follows: b. Adjustments shall be maintained to assure correct functioning of components.
The following are examples: 1. All functional operating mechanisms. 2. Safety devices. 3. Control; systems. 4. Power plants. Big Blue was equipped with a load indicator which determined the weight of the load being
lifted by the crane. The instrument was manufactured by the Wiley Company and, when properly
calibrated, will accurately weight the load with a 4% error factor (Tr. 491,492,514). The weight of the
load is displayed on an instrument dial located in the hoist operator's position (Tr. 494). During
August 1998, shortly after the crane had been assembled on site (Tr.491,718) mechanic Steven Aldrich
and supervisor Milo Bengston calibrated the load indicator. In order to accurately complete the
calibration, it was necessary to lift a known weight; Mr. Aldrich attempted to perform the calibration
by following the Wiley instruction manual; however, he experienced difficulties with the process. He
telephoned a Wiley technician for assistance and remained in telephone contact with that person during
the calibration process (Tr. 718-719). In order to complete the calibration, a Grove crane weighing
86,500 pounds was lifted by Big Blue. This weight was considerably less than the weight of 700,000
pounds that the Wiley manual specified as the weight required to be lifted to calibrate the crane (Tr.
726). However, Aldrich informed the Wiley technician of the actual weight being lifted and, with that
knowledge, the Wiley technician walked Aldrich through the entire calibration process (Tr. 727). The
Wiley technician did not express any concerns to Aldrich about the weight being lifted (Tr. 731).
Moreover, after several lifts at various boom radiuses, the weight dial indicated that the device was
accurately recording the weight of the lift (Tr. 723). The accuracy of the load indicator was further verified to Bengston's satisfaction by the first
lifts made by the crane. A known weight of 400,000 pounds was lifted and the weight indicator read
396,000 pounds; well within the 4% tolerance of the instrument (Tr. 516). In addition, two false work
trusses weighing 240,000 pounds were lifted and the weight indicator listed their exact weight (Tr.
517). These pieces had been weighed at a weight station in order to obtain a permit to travel on
highways (Tr. 521). According to Mr. Bengston, the Wiley load indicator was properly calibrated and was
accurately reading weights within acceptable limits (Tr. 517,519). However, a roof truss subsequently
lifted by Big Blue registered on the weight indicator approximately 100,000 pounds less than its
weight estimated by MHIA engineers (Tr. 515). Moreover, each of the seven roof trusses lifted by Big
Blue under Bengston's supervision registered as weighing less than the estimates calculated by MHIA
engineers (Tr. 526). Bengston testified that the estimated weights of the roof trusses calculated by
MHIA engineers were wrong (Tr. 518) because, in his opinion, the load indicator had been properly
calibrated and tested by lifting known weights (Tr. 515-526). Complainant argues that the calibration of the load indicator was flawed because the test
weight was significantly less than the weight recommended to be lifted by the Wiley technical manual.
The inaccurate calibration was verified, according to Complainant, by the inaccurate readings on the
load indicator for the roof trusses lifted by Big Blue (Complainant's brief p. 10-12). However,
Complainant does acknowledge that two lifts of known weight were accurately recorded by the load
indicator within acceptable limits after the calibration (Complainant's brief p. 12). Based upon the record in this matter, it is concluded that the Secretary has failed to establish
by credible evidence that the Wiley load indicator had been improperly calibrated. While it is
undisputed that the test weight used to calibrate the load indicator was significantly less than the
weight recommended by the Wiley technical manual, it is equally undisputed that a Wiley technician,
with full knowledge of the weight being lifted, guided Respondent's employees through the calibration
process. Moreover, Complainant acknowledges that loads of known weight were lifted and accurately
recorded by the load indicator subsequent to the calibration. Complainant's presentation relies upon
the assumption that the estimated weights of the seven roof trusses were accurate, and the low readings
indicated on the load indicator were inaccurate as a result of improper calibration. There is nothing on
this record, however, from which it may be concluded that the weight of the trusses were actually
calculated much less than the calculations made by MHIA engineers were accurate. No witness from
MHIA testified that (1) weight calculations were actually conducted by competent engineers or, if
conducted, (2) described the methodology employed to calculate the weight and degree of error, if any.
For these reasons, this item must be VACATED. At all times relevant to this matter, Respondent was, and is, an employer within the meaning
of the Act and had employees at the Miller Park worksite. Accordingly, Respondent falls within the
jurisdiction of the Act and this Commission. All findings of fact relevant and necessary to a
determination of the contested issues have been made above. Fed.R.Civ.P. 52(a). All proposed
findings of fact and conclusions of law inconsistent with this decision are denied. 1. Serious citation 1, item 1(a) is VACATED. 2. Serious citation 1, item 1(b) is WITHDRAWN. 3. Serious citation 1, item 1c is WITHDRAWN. 4. Serious citation 1, item 1(d) is AFFIRMED as a Serious violation and a penalty in the amount of $7,000.00 is ASSESSED. 5. Serious citation 1, item 2 is AFFIRMED and a penalty in the amount of $5,600.00 is ASSESSED. 6. Serious citation 1, item 3 is AFFIRMED as an other than serious violation and a penalty in the amount of $100.00 is ASSESSED. 7. Serious citation 1, item 4 is VACATED (see Decision and Order
dated July 20, 2000 attached hereto). 8. Willful citation 2, item 1 is WITHDRAWN. 9. Willful citation 2, item 2 is VACATED. /s/ Robert A. Yetman Judge, OSHRC Dated: June 25, 2001
Section 3(6) of the Act defines "employee" as "an employee of an employer who is employed in a
business of his employer which affects commerce." The Supreme Court has described a similar definition in the
Employee Retirement Security Act as "completely circular and explains nothing" supra at 323.
Sections 13 and 14 read in their entirety as follows: 13. REPAIRS AND OPERATION COSTS: Lessee agrees to inspect the equipment upon
taking delivery. Lessee's failure to notify Lessor in writing of any deficiencies in the equipment
within twenty-four (24) hours after taking delivery or such other period of time as may be mutually
agreed upon in writing is Lessee's acknowledgment that the equipment was, when delivered, in
good, safe and serviceable condition and fit for its intended use. Lessee shall maintain the
equipment and its attachments or devices in good, safe operating condition in accordance with
manufacturer specifications and shall bear the cost thereof, including protection against freezing,
corrosion or other abnormal exposure. This includes all safety related devices such as load
indicating devices, anti-two block devices, electronic boom angle indicators, etc. Lessor does not
warranty or guarantee the accuracy or reliability of these devices or that they will remain functional
throughout the rental term. Lessee assumes all responsibility for use of such devices. Lessee shall
not incur any liability or expend any money for Lessor's account, nor shall Lessor become liable to
Lessee for any costs incurred by Lessee. Title to all parts, materials and supplies furnished to the
equipment become the property of the Lessor. All accessories or attachments not listed herein or necessarily includable as part of the equipment
shall be furnished by Lessee at its own expense. 14. SUPPLYING OPERATORS: Unless otherwise mutually agreed in writing the Lessee
shall supply and pay all operators for the leased equipment during the rental period and shall
employ only competent, experienced, knowledgeable, and reliable personnel who will operate and
maintain the equipment. Should the Lessor loan any operators or other workmen for the
equipment, they shall be employees of the Lessee under Lessee's exclusive jurisdiction,
supervision, and control during the rental period, and the Lessee shall also pay them such traveling
expenses, board and lodging as may be agreed between the Lessee and Lessor. The Lessee shall
provide and pay for all wages, workmen's compensation insurance, fringe benefits, and pay all
payroll taxes required by law applying to such operators and workmen. Lessee agrees to
indemnify Lessor against and hold Lessor harmless from all liability for wages, taxes, insurance
contributions, other such payments, benefits under any workmen's compensation or similar
expenses, respecting Lessee's employment of such personnel Lessor does not represent, warrant or
guarantee to Lessee or anyone that Lessor supplied equipment operators have been supplied
equipment operators shall become Lessee's responsibility and shall be tested and pre-qualified by
Lessee to determine their competency, experience and reliability to operate the leased equipment. get his ass fired. He (Milo) got replaced to go to another location. It was a change of personnel, not a termination of somebody" (C-17; Tr. 110). Although Bengston was offered continued work by Respondent, he
decided to take some time off to build a house in Montana (C-17; Tr. 107).
There are frequent references by Respondent's counsel to the fact that MHIA had "fired" Milo Bengston
from the jobsite and, in effect, terminated his services with Respondent. However, William Lampson,
Respondent's President, testified that Mr. Bengston was not "fired." Lampson stated, "It was not a matter where
Milo was fired. He was just taken off of this jobsite. He knew he had a home with us regardless, and I told him that.
Allen (Watts) did not come here with a fear if he spoke up he would get his ass fired, because Milo didn't