Equipment Holdings v. OSHC ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-60237
Summary Calendar
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EQUIPMENT HOLDINGS, INC.,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION; ALEXIS M. HERMAN, SECRETARY,
UNITED STATES DEPARTMENT OF LABOR,
Respondents.
_________________________________________________________________
Petition for Review of an Order of the
Occupational Safety and Health Review Commission
(97-1099)
_________________________________________________________________
November 26, 1999
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
On 8 February 1997, the crane and gear department manager for
Port Cooper/T. Smith Stevedoring Company (Cooper) requested a crane
and operator, as he had several times previously, from Equipment
Holdings, Inc. (Equipment Holdings customarily included the
operator’s fee in the rental basic hourly rate.) With the crane,
Equipment Holdings dispatched Randy Taylor, a certified crane
operator it hired frequently through the local union.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Informed by the Cooper superintendent that he would be off-
loading steel coils weighing up to 60,000 pounds, Taylor began
performing lifts according to the signals of a Cooper flagman.
Around 9 p.m., a Cooper foreman instructed Taylor to reposition the
crane for further off-loading. On the first lift, the crane
overturned and struck a nearby truck, killing a Cooper employee.
The load for the attempted lift was 86,960 pounds.
OSHA officials issued citations and proposed penalties against
Equipment Holdings, on the basis that the crane was not equipped
with a load indicating device, or a readily visible load ratings
chart, or proper counterweights. In a proceeding before the
Occupational Safety and Health Review Commission, the ALJ
determined that Equipment Holdings was the controlling employer and
that penalties for the violations, totaling $6,000, were
appropriate. The Commission declined discretionary review, making
the ALJ’s decision final.
The Commission’s factual findings must be upheld if “supported
by substantial evidence on the record considered as a whole”, see
Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 1029 (5th Cir. 1989)
(citing 29 U.S.C. § 660(a)); its legal conclusions must be upheld
unless they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”. 5 U.S.C. § 706(2)(A).
Equipment Holdings maintains that it was not the “employer” of
the crane operator (Taylor); that Cooper was, because it
controlled the operations at the dock and the use of the crane, and
therefore, was in the best position to prevent the violations. It
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asserts that Equipment Holdings had no supervisors at the dock,
that only Cooper knew the weight to be lifted, and that Taylor, who
worked for various waterfront employers, believed Cooper was his
employer. Additionally, it points to the testimony of Phillip
Nessler, an experienced engineer and former OSHA supervisor, that
Cooper was responsible for meeting safety standards at the job
site, including the safety of the crane.
However, the ALJ, noting the factors utilized by the Supreme
Court in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318,
324-25 (quoting Community for Creative Non-Violence v. Reid, 490
U.S. 730, 751-52 (1989)), to determine employer-employee
relationsihps, found that Equipment Holdings was the “employer”:
only Taylor, the crane operator, could ascertain how much weight
was on the hook, and refer to his charts to determine the correct
boom angle for the lift; and, because Equipment Holdings performs
the maintenance on its cranes, it was in the best position to
prevent the violations.
In the light of our standard of review, we do not “reweigh the
evidence or independently evaluate evidentiary conflicts”. Dole,
874 F.2d at 1029. Instead, viewing the record as a whole, we
conclude that the decision was supported by substantial evidence.
DENIED
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