A Crane Rental LLC

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UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
Vv. OSHRC Docket No. 19-1667
A CRANE RENTAL LLC,
Respondent.

DECISION AND ORDER
Attorneys and Law firms

Jeremy B. Dailey, Cameron W. Ellis, Rachel L. Graeber, Attorneys, Office of the Solicitor, U.S.
Department of Labor, Atlanta, GA, for Complainant.

J. Larry Stine, Sherifat Oluyemi, Attorneys, Wimberly Lawson Steckel Schneider & Stine, PC,
Atlanta, GA, for Respondent.

JUDGE: John B. Gatto, United States Administrative Law Judge.
I. INTRODUCTION

Respondent A Crane Rental LLC (“ACrane”)' is a crane rental company that provides
cranes, lifting equipment and operators for general contractors and was one of several companies
working on a communication tower in Norcross, Georgia, when another company’s employee
fatally fell from ACrane’s personnel platform. The United States Department of Labor, through its
Occupational Safety and Health Administration (“OSHA”), investigated the fatality and
subsequently issued ACrane a two-item citation and notification of penalty (“citation”) under the
Occupational Safety and Health Act of 1970 (the “Act’’), 29 U.S.C. §§ 651-678, alleging violations
of OSHA’s Cranes and Derricks in Construction standard* with proposed penalties totaling

$15,343.00.° A bench trial was held in Atlanta, Georgia.

' While the named respondent is “A Crane” Rental LLC, respondent’s notice of contest references
“ACrane” Rental LLC. For ease of reference, the court will use “ACrane.”

* The citation alleges violations of 29 C.F.R. §§ 1926.1431(f)(4) and 1926.1431(m)(2).

* The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated
his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA.
See Order No. 1—2012, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary

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Based upon the record, the court concludes the Commission has jurisdiction over the
parties and subject matter in this case. (See Compl. ¶¶ I, II, Answer ¶¶ I, II). Pursuant to
Commission Rule 90, after hearing and carefully considering all the evidence and the arguments of
counsel, the court issues this Decision and Order, which constitutes its final disposition of the
proceedings under section 661(j) of the Act. 29 U.S.C. § 661(j).4 For the reasons indicated infra,
the court concludes the Secretary has failed to satisfy the third and fourth elements of his prima
facie case and the citation must therefore be vacated.
II. BACKGROUND
This case arose from an inspection on March 22, 2019, of a multi-employer construction
site in Norcross, Georgia, following a fatality that occurred the day before while workers were
upgrading a communications tower in a parking lot behind a strip mall (the “worksite”). (Tr. 13:23-
25; 14:23-24; 15:7-15). The multi-employer construction site included five companies: Ericsson
was the general contractor and it subcontracted the project to Future Technology. Superior
Broadband Towers (“Superior”)5 was subcontracted to provide the workers to execute the
upgrading of the communications tower. Big Rentz was contracted to provide the crane and it
contracted with ACrane to provide a crane, a personnel basket, a rigging system to lift Superior’s
workers and equipment onto the communications tower, and an operator, [redacted]. (Tr. 14:2-24;
14:11-15:2; 15:15-25; 20:18-24; 122:8-12; Ex C-3).
The personnel basket was rated to carry no more than two persons. (Jt. Stip. ¶¶7, 9; see also
Tr. 245:8-11; Ex C-3). Gorman, Superior’s foreman at the worksite was the lift director responsible
for determining what was going to be lifted.6 (Tr. 194:18-196:4). [redacted] was paid hourly, had
no supervisory job functions and was supervised by Shannon Graham, ACrane’s operations
for Occupational Safety and Health, 77 Fed. Reg. 3912 (Jan. 25, 2012). The Assistant Secretary has
redelegated his authority to OSHA’s Area Directors to issue citations and proposed penalties. See 29 C.F.R.
§§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein. For
simplicity, the court also refers to actions taken by the Assistant Secretary and the Area Directors as actions
taken by the Secretary.
4 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall
be deemed so.
5 Vertical Vision Construction, LLC d/b/a Superior Broadband Towers was referred to by some witnesses as
“Southern Broadband” and others as “Superior Broadband.” However, both parties referred to it as Superior
Broadband in their briefs.
6 [redacted] identified Superior’s foreman as the lift director and testified his last name was Gorman. (Tr.
118:11-17).

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manager.7 (Tr. 81:3-21). [redacted]’s responsibilities included crane assembly, determining the
location of the crane at the worksite, and rigging the personnel basket. (Ex. C-5).
On the first day, [redacted] hoisted two of Superior’s employees on the personnel platform.
(Tr. 104:18-24). On the second day, one or two of Superior’s employees were lifted. (Tr. 105:2-12).
On the third day, March 21, 2019, Gorman loaded the personnel platform with equipment and three
Superior employees. [redacted] testified at trial that due to the platform's location, he could not see
it until it had been lifted about halfway up the communications tower. (Tr. 106:4-16; 156:1-16; Tr.
106-13-20; Jt. Stip. ¶10). [redacted] testified that at that point he decided it was safer to take the
three workers to the top of the tower rather than lower them to the ground. (Tr. 106:21-24).
Tragically, while attempting to tie off to the tower, one of Superior’s employees fell approximately
105 feet to his death. (Tr. 46:2-8).
Linston Maurice Starks, current Assistant Area Director of the OSHA Atlanta Area East
Office, was an OSHA Compliance Safety and Health Officer8 at the time of the accident, and
inspected the worksite on March 22, 2019, the day following the fatal accident. (Tr. 15:7-15).
Starks interviewed [redacted] and similar to [redacted]’s trial testimony, [redacted] provided a
hand-written signed statement, which stated, “I could not see what work they were doing [illegible]
or the basket.” (Ex. C-6.) About ninety days later, on June 22, 2019, Starks interviewed [redacted]
again and [redacted] provided a second signed statement. (Ex. C-5). This time, Starks typed the
questions, typed [redacted]’s purported answers, printed the statement, allowed [redacted] a
chance to review it, and [redacted], after providing some written corrections, signed the statement.
(Tr. 13:23-25; 33:11-19; Ex. C-5). In this second statement, in response to the question: “Who
determined the setup location of the crane on-site?” [redacted] purportedly answered: “I
determined the best location for the crane, I look at the close and flat area. I could see the basket
from the ground to the whole tower.” (Ex. C-5 p. 1 ¶4; Ex. C-5 p. 2 ¶5) (emphasis added).
At trial, when Starks was asked when he arrived at the accident scene arrived if it changed
since the accident had happened, he testified that “Based on my knowledge and the questions that I
asked, the position of where the basket was -- personnel basket was located and the crane is the
position that they were doing the lifting and the lowering of the employees that were in the
7 Although Graham and [redacted] were on-site upon Stark’s arrival, Graham did not visit the site until the
accident. (Tr. 15:16-25; Tr. 92:9-18; Ex. C-3).
8 “Compliance Safety and Health Officer” means “a person authorized by the Occupational Safety and
Health Administration, U.S. Department of Labor, to conduct inspections.” 29 C.F.R. § 1903.22(d).

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personnel basket.” (Tr. 23:5-12). However, Starks did not see the crane in the position that it had
been at the time of the accident. (Tr. 71:12-21).
By the time Starks visited the worksite, [redacted] credibly testified that the crane had
already been placed into “the safed-up position,” which is the normal end-of-day position, meaning
it had been “boomed-in” and the basket was sitting directly in front of the operator’s cab. (See Ex.
R-1; Tr. 103:14-104:3). [redacted] testified that when the crane is in “the safed-up position at the
end of the job,” the crane “is all the way retracted. It's not a working configuration; it's just how the
crane is parked so that if something did fail overnight, had a hydraulic issue or anything else, the
crane would be safe.” (Tr. 102:18-19, 21-25). [redacted] testified that the “safed-up position” that
Starks observed the crane is not where [redacted], as an experienced crane operator, “would lift the
personnel basket from.” (Tr. 103:14-18). And [redacted] testified that during the lifts the basket
was located in various places: “It would be by their trailer behind the tree line sometimes, it would
be behind the shed sometimes, and sometimes behind the antennas.” (Tr. 101:20-22).
A review of a photograph admitted by ACrane without any objection by the Secretary
shows that from where the crane was positioned, the lower half of the communications tower was
obstructed by trees.9 (Ex. R-2.) There is also evidence that radios were used to communicate, which
reinforces [redacted]’s testimony that [redacted] was unable to see the personnel platform until it
cleared the trees about halfway up the tower. [redacted] testified that because he could not observe
the workers being loaded, “the foreman or the worker would get on the radio to let me know.” (Tr.
101:23-25; 102:1-4). Starks admitted that “[redacted] indicate that they were using radios as one
part of communication.” (Tr. 27:2-4). And according to Starks, “if you can't see where you're
moving equipment or parts or individuals, that you're blind, and that's the purpose of the
communication with the person on the ground or radios.” (Tr. 88:1-5; 100:20-25).
The court closely observed [redacted] and his demeanor during his testimony and he was
candid and responsive to the questions posed to him. [redacted] displayed no evasiveness or
deflective tactics. The court finds [redacted] to be a credible witness.10 As indicated supra,
9 While Starks did not know if the photograph was an accurate depiction of the accident scene because he did
not take it and he was behind the building where the tower, crane, and the personnel basket were located, the
Secretary offered no evidence to rebut this photographic evidence. Since this exhibit corroborates
[redacted]’s testimony and the Secretary offered no evidence to rebut it or to corroborate Starks’ testimony,
the court finds the preponderance of evidence shows [redacted] was unable to see the personnel platform
until it cleared the trees about halfway up the tower.
10 Although the court also found Starks to be a credible witness, unlike [redacted], Starks did not have first-

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[redacted]’s trial testimony and his first hand-written OSHA statement were corroborated by
record evidence. The court finds the preponderance of evidence establishes [redacted] was unable
to see the personnel platform until it cleared the trees about halfway up the tower.
Section VI (B)(6) of ACrane’s written procedure for Crane Hoisted Personnel Platforms
requires that “workers to be hoisted” must attend the pre-lift meeting. (Jt. Stip. ¶13). Earlier that
day, Gorman, Superior’s foreman at the worksite, in his capacity as the lift director, held a lift
meeting with [redacted]. (Tr. 112:20-113:1; see also (Jt. Stip. ¶¶11, 12). [redacted] did not know
which Superior employees would be hoisted and had no knowledge of whether Gorman briefed
Superior’s employees to be hoisted separately, although [redacted] did observe Gorman walking
towards Superior’s crew after meeting with [redacted]. (Tr. 113:5-12).
III. ANALYSIS
The fundamental objective of the Act is to prevent occupational deaths and serious injuries.
Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980). The Act “establishes a comprehensive
regulatory scheme designed ‘to assure so far as possible safe and healthful working conditions’ for
‘every working man and woman in the Nation.’” Martin v. Occupational Safety and Health Review
Comm'n (CF&I Steel Corp.), 499 U.S. 144, 147 (1991) (quoting 29 U.S.C. § 651(b)). To achieve
this purpose, the Act imposes two duties on an employer: a “general duty” to provide to “each of
his employees employment and a place of employment which are free from recognized hazards that
are causing or are likely to cause death or serious physical harm to his employees,” 29 U.S.C. §
654(a)(1); and a specific duty to comply with all applicable occupational safety and health
standards promulgated under the Act. Id. § 654(a)(2). Pursuant to that authority, the standard at
issue in this case was promulgated.11
The “Commission is responsible for carrying out adjudicatory functions” under the Act.
CF&I, 499 U.S. at 144. Thus, “[t]he Commission’s function is to act as a neutral arbiter and
determine whether the Secretary's citations should be enforced over employee or union
objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985) (per curiam).
hand knowledge of the worksite at the time of the accident. Therefore, the court gives Starks’ testimony less
weight.
11 As indicated supra, the Secretary delegated his authority under the Act to the Assistant Secretary of Labor
for Occupational Safety and Health. The Assistant Secretary promulgated the Cranes and Derricks in
Construction standard.

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Therefore, Congress vested the Commission with the “adjudicatory powers typically exercised by
a court in the agency-review context.” CF&I, 499 U.S. at 151.
Under the law of the Eleventh Circuit where this case arose,12 “the Secretary will make out a
prima facie case for the violation of an OSHA standard by showing (1) that the regulation applied;
(2) that it was violated; (3) that an employee was exposed to the hazard that was created; and
importantly, (4) that the employer ‘knowingly disregarded’ the Act's requirements.” Quinlan v.
Sec'y, U.S. Dep't of Labor, 812 F.3d 832, 836 (11th Cir. 2016) (quoting ComTran Grp., Inc. v. U.S.
Dep’t of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013)). “If the Secretary establishes a prima facie
case with respect to all four elements, the employer may then come forward and assert the
affirmative defense of unpreventable or unforeseeable employee misconduct.” Id. (citing id. at
1308).
Alleged Violations
The Secretary alleges in amended Item 1 that on or about March 21, 2019,13 ACrane
committed a serious14 violation of section 1926.1431(f)(4) of OSHA’s Cranes and Derricks in
Construction standard when a “two-person personnel basket was utilized by the crane operator to
hoist the communication tower construction crew consisting of three employees to heights above
90 feet from ground level.” (Compl. Ex. A.) Thus, the Secretary asserts the “maximum capacity of
the personnel basket was exceeded, exposing employees to fall and struck-by hazards.” (Id.) The
cited standard mandates that the “number of employees occupying the personnel platform must not
12 The employer or the Secretary may appeal a Commission order to the federal court of appeals for the
circuit in which the violation allegedly occurred or where the employer has its principal office, and the
employer also may appeal to the District of Columbia Circuit. See 29 U.S.C. §§ 660(a) and (b). The
Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit,
the Commission generally has applied the precedent of that circuit in deciding the case— even though it
may differ from the Commission's precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-
1719, 2000). Here, the alleged violations occurred in Georgia, which is in the Eleventh Circuit and A
Crane’s principal place of business is in Pennsylvania, which is in the Third Circuit. (See (Compl. ¶ III,
Answer ¶ III). Compl. Ex. A; see also Jt. Prelim. Report and Disc. Plan ¶11.) Since both parties cited to the
Eleventh Circuit in their post-trial briefs, the court applies the precedent of the Eleventh Circuit in deciding
the case where it is highly probable that the case will be appealed.
13 The citation, pleadings, and Pretrial Order were amended by consent of the parties at trial to reflect the
correct date for both Items 1 and 2 is March 21, 2019. (Tr. 52:7-23).
14 A “serious violation shall be deemed to exist in a place of employment if there is a substantial probability
that death or serious physical harm could result from a condition which exists, or from one or more
practices, means, methods, operations, or processes which have been adopted or are in use, in such place of
employment unless the employer did not, and could not with the exercise of reasonable diligence, know of
the presence of the violation.” 29 U.S.C. § 666(k).

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exceed the maximum number the platform was designed to hold or the number required to perform
the work, whichever is less.” 29 C.F.R. § 1926.1431(f)(4).
The Secretary alleges in amended Item 2 that on or about March 21, 2019, ACrane
committed a serious violation of section 1926.1431(m)(2) of OSHA’s Cranes and Derricks in
Construction standard when it did not ensure that “employees hoisted in a personnel basket
attended the pre-lift meeting with the crane operator and competent person responsible for the
communication tower work.” (Compl. Ex. A.) The cited standard mandates that the pre-lift
meeting must be attended by “the equipment operator, signal person (if used for the lift),
employees to be hoisted, and the person responsible for the task to be performed.” 29 C.F.R. §
1926.1431(m)(2).
(1) Whether Cited Standard Applied
OSHA’s Cranes and Derricks in Construction standard applies to “power-operated
equipment, when used in construction, that can hoist, lower and horizontally move a suspended
load.” 29 C.F.R. § 1926.1400(a). ACrane does not dispute that the equipment it used at the worksite
is covered by the standard. Further, it admits that it provided the crane, operator, personnel basket
and sling system at the worksite on March 21, 2022, and that the personnel basket was used to hoist
workers. (Ex. J-3 ¶¶ 1-4, 10). Therefore, the Secretary has established the cited standard applied to
the cited conditions.
(2) Whether Cited Standard Was Violated
ACrane stipulated that on March 21, 2019, [redacted] hoisted ACrane’s personnel basket at
the worksite while three of Superior’s employees were inside the basket, even though the personnel
basket was rated to carry no more than two persons. (Ex. J-3 ¶¶ 7-10; see also Tr. 245:8-11).
Further, although [redacted], the equipment operator, attended a pre-lift meeting on the day of the
accident, [redacted] could not identify anyone else who had attended and did not know whether the
Lift Director separately briefed the workers to be hoisted. (Tr. 112:20-113:1; Tr. 113:5-12). As
indicated supra, the pre-lift meeting must be attended by “the equipment operator, signal person (if
used for the lift), employees to be hoisted, and the person responsible for the task to be performed.”
Therefore, the Secretary has established that both instances of the cited standard were violated.

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(3) Whether Employees were Exposed to Hazard
To “satisfy the third element, the Secretary bears the burden of showing that the cited
respondent is the employer of the exposed workers at the site.” Quinlan, 812 F.3d at 836. “In
determining whether the Secretary has satisfied its burden, the Commission applies the control-
based test set forth in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344,
117 L.Ed.2d 581 (1992).” Id. As the Supreme Court has noted, courts have “often been asked to
construe the meaning of ‘employee’ where the statute containing the term does not helpfully define
it.” Darden, 503 U.S. at 322. That is the case here since the Act defines an employee as “an
employee of an employer who is employed in a business of his employer which affects commerce.”
29 U.S.C. § 652(6).15 As the Commission noted, this definition is “unhelpfully circular.” Don
Davis, 19 BNA OSHC 1477, 1480 (No. 96-1378, 2001).
However, “the common-law element of control is the principal guidepost that should be
followed.” Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448, 123 S.Ct. 1673,
155 L.Ed.2d 615 (2003). The Secretary offered no evidence addressing this common-law element
of control to establish ACrane was the employer of the exposed workers at the site. Instead, the
Secretary simply asserts since ACrane stipulated that on March 21, 2019, [redacted] hoisted the
personnel basket with three Superior employees on it even though only two people were allowed in
the personnel basket, these admissions establish “the exposure of personnel to the hazard” and that
based upon these stipulations, “the only issue remaining for the Court in determining whether
Respondent violated the OSHA standard is employer knowledge.” (Sec’y’s Br. 13; Ex. J-3 ¶¶ 7-10)
(emphasis added). The court disagrees. Again, the Secretary bears the burden of showing that the
cited respondent is the employer of the exposed workers at the site. Quinlan, 812 F.3d at 836. And
the evidence shows the three workers lifted by [redacted] were not employees of ACrane but were
employees of Superior. Therefore, the Secretary has failed to satisfy the third element by proving
ACrane was the employer of the exposed workers.
“An employment relationship, however, is not the only basis for liability when a company
fails to take reasonable steps to protect worker safety.” Fama Constr., LLC v. U.S. Dep't of Lab.,
No. 19-13277, 2022 WL 2375708 at *3 (11th Cir. June 30, 2022). “Under Commission precedent,
an employer may be held responsible for the violations of other employers where it could
15 The Act defines an employer as “a person engaged in a business affecting commerce who has employees,”
29 U.S.C. § 652(5).

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reasonably be expected to prevent or detect and abate the violations due to its supervisory authority
and control over the worksite.” Summit Contracting Grp., Inc., No. 18-1451, 2022 WL 1572848 at
*2 (OSHRC May 10, 2022) (citation omitted). Thus, if ACrane were a controlling employer on the
worksite, the Secretary could16 have cited it under OSHA's multi-employer citation policy, “which
provides that ‘[a]n employer who has general supervisory authority over [a] worksite,’ must
‘exercise reasonable care to prevent and detect violations on the site.’” Fama, 2022 WL 2375708 at
*3 (quoting OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy § X.E.1–2 (Dec.
10, 1999)). For the reasons indicated infra, the court concludes the Secretary also failed to establish
ACrane was a “controlling” employer.
As the Eleventh Circuit has noted, under OSHA's multi-employer citation policy, “[t]he
type of control required is not control over ‘the manner and means by which the [work] product is
accomplished,’ Darden, 503 U.S. at 323, but control over matters affecting the safety of the
workers on the jobsite.” Fama, 2022 WL 2375708 at *4. This would include things like “the
authority and ability to control the workers’ use of safety equipment and adherence to safety
procedures.” Id.
Here, ACrane was one of multiple companies working at the worksite and there is no
evidence in the record that it exercised control over any of the other companies’ employees or had
the authority and ability to control the other companies’ employees use of safety equipment or
adherence to safety procedures. [redacted]’s unrefuted testimony was that Gorman, Superior’s
foreman, was the worksite lift supervisor, and Gorman was responsible for determining when lifts
occurred and who would be hoisted in the personnel basket. (Tr. 107:11-13; 101:11-16).
[redacted]’s testimony is corroborated by Starks, who also testified that “the lift director would
have to be someone from Superior because they would know more about what had to go up and
what position they needed to be in.” (Tr. 88:22-25). While [redacted] admitted he had the authority
to refuse to hoist personnel or terminate a lift if a safety concern was identified, (Tr. 107:11-13;
117:2-7; 144:9-12; 229:7-11), there is no evidence this authority included the authority and ability
to control the workers’ use of safety equipment or adherence to safety procedures.
The court concludes Gorman, not [redacted], as the worksite lift supervisor, had the
authority and ability to control the workers’ use of safety equipment and adherence to safety
16 As to Item 1, the Secretary never mentioned or relied on OSHA’s multi-employer citation policy at trial or
in his post-trial brief (the first mention of this policy was on page 19 of the Secretary’s brief related to Item
2).

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procedures. Therefore, the court concludes the Secretary has failed to establish ACrane was a
controlling employer. As indicated supra, the Secretary also failed to prove ACrane was the
employer of the exposed workers at the worksite. Thus, the court concludes the Secretary has failed
to satisfy the third element of his prima facie case.
(4) Whether ACrane “Knowingly Disregarded” the Act's Requirements
To satisfy this fourth element, the Secretary can prove ACrane had knowledge of the
violations in two different ways:
First, where the Secretary shows that a supervisor had either actual or constructive
knowledge of the violation, such knowledge is generally imputed to the employer....
An example of actual knowledge is where a supervisor directly sees a subordinate's
misconduct.... An example of constructive knowledge is where the supervisor may
not have directly seen the subordinate's misconduct, but he was in close enough
proximity that he should have.... In the alternative, the Secretary can show
knowledge based upon the employer's failure to implement an adequate safety
program, with the rationale being that—in the absence of such a program—the
misconduct was reasonably foreseeable.
Quinlan, 812 F.3d at 837 (quoting Comtran, 722 F.3d at 1307–08). For the reasons indicated infra,
the court concludes [redacted] was not an ACrane Supervisor. But even if he was, the court credits
his testimony that he was unaware of the violative actions because he did not witness the
overloading of the personnel platform and only became aware of it mid-lift, i.e., after the violation
had already occurred. Therefore, the Secretary has failed to show that an ACrane supervisor had
actual knowledge of the violation.
As to constructive knowledge, the Secretary argues that [redacted]’s knowledge can be
imputed to ACrane because [redacted] was the only ACrane employee at the worksite and he
controlled ACrane’s crane operations. (Sec’y’s Br. 13-14). The hallmark of a supervisor is
authority over other employees. Here, although a pre-lift document from March 21, 2019, was
completed and signed by [redacted] as the “Job Site Supervisor,” (Tr. 26:23-27:8; Ex. R-6),
[redacted]’s unrefuted testimony was that he signed to certify the “calculations” and “capacities.”
(Tr. 146:8-10). In deciding whether an employee qualifies as a supervisor, “[i]t is the substance of
the delegation of authority that is controlling, not the formal title of the employee having this
authority.”' Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). And [redacted]’s
unrefuted testimony was he had no supervisory authority over any other employees. (Tr. 107:11-
13). [redacted]’s unrefuted testimony is supported by Starks testimony where Starks admitted that

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while Graham attended the opening conference, [redacted] did not, and that most of the time
“opening conferences are with the manager or supervisor.” (Tr. 92: 9-18). There is no other
evidence that [redacted] was the worksite supervisor and the court concludes the preponderance of
evidence in the record shows he was not.
Finally, even if [redacted] was ACrane’s worksite supervisor and was aware of the
overloading of the platform, a “supervisor’s ‘rogue conduct’ cannot be imputed to the employer in
that situation. Rather, ‘employer knowledge must be established, not vicariously through the
violator's knowledge, but by either the employer's actual knowledge, or by its constructive
knowledge based on the fact that the employer could, under the circumstances of the case, foresee
the unsafe conduct of the supervisor [that is, with evidence of lax safety standards].’” Comtran, 722
F.3d at 1316 (quoting W.G. Yates & Sons Constr. Co., Inc., 459 F.3d at 609 n. 8).
Here, the Secretary has not offered any evidence to show ACrane had actual knowledge of
the overloading of the platform. And as to constructive knowledge of a controlling employer,
“neither the Commission nor the Eleventh Circuit has ever relied on that theory to determine
whether a controlling employer had constructive knowledge of violative conditions to which only
another employer’s employees were exposed on a multi-employer worksite.” Summit, 2022 WL
1572848 at n. 13 (emphasis in original). “Moreover, doing so here would be concerning given that
[ACrane] lacked a direct contractual relationship with [Superior] whose employees were exposed”
to the hazard. Id. “While such evidence may be relevant to determining whether a controlling
employer has exercised reasonable care in relation to its secondary safety role on a multi-employer
worksite,” the court finds it “inappropriate to analyze the adequacy” of ACrane’s “own safety
program as an independent basis for proving constructive knowledge.” Id. Therefore, the court
concludes even if ACrane was a controlling employer, any inadequacies in its safety program
cannot be used to establish it had constructive knowledge of violative conditions that only
Superior’s employees were exposed to. Thus, the Secretary has also failed to satisfy the fourth
element of his prima facie case. Accordingly,
IV. ORDER
IT IS HEREBY ORDERED THAT the citation is VACATED and no penalty is assessed.

SO ORDERED.

/s/

JOHN B. GATTO, Judge

Dated: October 31, 2022
Atlanta, GA

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