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THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING 

COMMISSION REVIEW 

Some personal identifiers have been redacted for privacy purposes. 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. OSHRC Docket No. 19-1667 

A CRANE RENTAL LLC d/b/a A CRANE 

RENTAL OF GA LLC, 

Respondent. 

DECISION AND ORDER ON REMAND 

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 E. Oluyemi, Attorneys, Wimberly Lawson Steckel Schneider & Stine, PC, 

Atlanta, GA, for Respondent. 

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

I. INTRODUCTION1 

The Commission remanded this case for consideration of whether the Secretary has proven 

that A Crane was a “creating employer.” A Crane Rental LLC, No. 19-1667, 2023 WL 192889, at 

*2 (OSHRC Jan. 10, 2023) (citation omitted). Further. If the court determines on remand that A 

Crane “was shown to be a creating employer,” the Commission directs the court “to reconsider, in 

light of the company's creating employer status, the noncompliance and knowledge elements of 

the Secretary's case with respect to both citation items.” (Id. at *3) (citation omitted). For the 

reasons indicated infra, the court concludes Amended2 Citation 1, Items 1 and 2 must be vacated. 

1 The court incorporates by reference its finding from A Crane Rental LLC, No. 19-1667, 2023 WL 192889, 

**4-7. 

2 At trial, the parties agreed to amend the citation to reflect the correct date of the accident was March 21, 

2019. (Tr. 52: 10-22). Any references herein to the accident date have been corrected to March 21, 2019. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

II. ANALYSIS 

Under the law of the Eleventh Circuit where this case arose,3 “

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). 

As indicated supra, the Commission has directed the court to consider whether the 

Secretary has proven that A Crane was a “creating employer,” and if so, to reconsider “the 

noncompliance and knowledge elements of the Secretary's case[.]” A Crane Rental, 2023 WL 

192889 at *2.4 Under OSHA’s Multi-Employer Citation Policy, a “creating employer” is defined 

as an “employer that caused a hazardous condition that violates an OSHA standard.” (MultiEmployer Citation Policy, CPL 02-00-160 § X.B.1). “Employers must not create violative 

conditions. An employer that does so is citable even if the only employees exposed are those of 

other employers at the site.” (Id. at § X.B.2). Under the Commission’s long-standing precedent, 

an employer that has “created a hazard” can be held liable for violations of the Act when the only 

3 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 Norcross, Georgia, which is in the Eleventh Circuit 

and A Crane’s principal place of business is in Dravosburg, Pennsylvania, which is in the Third Circuit. 

(See Compl. ¶¶ III, IV; Answer ¶¶ III, IV). 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. 

4 A Crane did not dispute that the cited provisions applied. A Crane Rental LLC, No. 19-1667, 2023 WL 

192889, at *1. The Commission also indicated in footnote 6 of its remand order that the court “need not 

revisit the exposure element because the parties' factual stipulations along with undisputed testimony at 

[trial] establishes that employees of Superior were exposed to the alleged violative conditions.” Id. n. 6 

(citing Summit Contractors, 23 BNA OSHC at 1205 (creating employer “is obligated to protect its own 

employees as well as employees of other contractors who are exposed to the hazard”)). 

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employees exposed to the hazard are those of other employers on a multi-employer construction 

worksite. Anning-Johnson Co., 4 BNA OSHC 1193, 1197-99 (No. 3694, 1976) (consolidated); 

Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (No. 12775, 1976); McDevitt Street 

Bovis, Inc., 19 BNA OSHC 1108, 1109 (No. 97-1918, 2000); Smoot Constr., 21 BNA OSHC 1555, 

1557 (No. 05-0652, 2006); Summit Contractors, Inc., 23 BNA OSHC 1196, 1205 (No. 05-0839, 

2010). 

Creating Employer 

In Amended Citation 1, Item 1, the Secretary alleges on or about March 21, 2019, A Crane 

violated §1926.1431(f)(4) when the “maximum capacity of the personnel basket was exceeded, 

exposing employees to fall and struck-by hazards.” (Ex. C-1 p. 6). The cited standard mandates 

that the “number of employees occupying the personnel platform must not 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). Thus, the hazard created was the fall and struck-by hazard 

created by the overcrowding condition when the maximum capacity of the personnel basket was 

exceeded. A Crane created the hazardous condition when [redacted] conducted a lift without 

ensuring the personnel platform was not overloaded. Thus, the court conclude A Crane was a 

creating employer as it relates to Item 1. 

In Amended Citation 1, Item 2, the Secretary alleged on or about March 21, 2019, A Crane 

violated § 1926.1431(m)(2) 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.” (Ex. C-1 p. 7). 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). 

“This addresses hazards which result from misunderstanding of the requirements, particular lift 

conditions or procedures.” Cranes and Derricks in Construction, 75 FR 47906, 48042 (2010). 

Gorman, Superior’s lift director, held a pre-lift meeting with [redacted]. Missing at that 

meeting were Superior’s employees to be hoisted and a signal person (if used for the lift). The 

crane manufactures’ manual indicates “[e]very crane operator shall be held directly responsible 

for safe operation of the crane and any attachment to the crane” and “[i]f there is any doubt as to 

safety, the operator should stop the crane until safe conditions have been restored.” (Ex. C-10, p. 

3.) Even if [redacted] did not have the authority to make anyone attend the pre-lift meeting, he 

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could have refused to operate the crane until he attended a proper pre-lift meeting. Therefore, A 

Crane created the hazardous condition when [redacted] operated the crane without first attending 

a proper pre-lift meeting. Thus, the court conclude A Crane was a creating employer as it relates 

to Item 2. 

Noncompliance 

A Crane provided the crane, the personnel basket, the sling system used to hoist the 

personnel basket at the worksite on March 21, 2019, and the crane operator. The personnel basket 

had a maximum capacity of two people. The personnel basket at the worksite was hoisted while 

three people were inside the basket. The Secretary has established by a preponderance of evidence 

that A Crane failed to comply with 29 C.F.R. § 1926.1431(f)(4). 

Section VI (B)(6) of A Crane’s written procedure for Crane Hoisted Personnel Platforms 

required that “workers to be hoisted” attend the pre-lift meeting. While Gorman and [redacted] 

attended a pre-lift meeting on March 21, 2019, none of the workers who were to be hoisted 

attended that meeting. Hammons, A Crane’s expert, testified if the crane operator holds the prelift meeting it would be a diversion or distraction for him. (Tr. 234:21-24). The court disagrees. 

Since the meeting must be held prior to the lift, clearly there would be no diversion or distraction 

when the subsequent lift actually occurred. 

Hammons also opined that although best practice is to have a meeting with everyone 

involved, a pre-lift meeting can be done through multiple, separate meetings if a job requires it. 

(Tr. 197:15-198:14). The court again disagrees. The pre-lift requirement is intended to provide “an 

opportunity for all employees involved to have a common and complete understanding of the 

hoisting operation and to give uniform information and instructions immediately prior to the lift.” 

Cranes and Derricks in Construction, 75 FR at 48042 (emphasis added). The clear intent of the 

standard is to require all the participants to attend the meeting together. A Crane violated the 

standard when [redacted] conducted a lift without first attending a proper pre-lift meeting with the 

required participants. Thus, the Secretary has established by a preponderance of evidence that A 

Crane failed to comply with 29 C.F.R. § 1926.1431(m)(2). 

Knowledge 

The Act imposes liability on the employer for a serious violation only if the employer 

knew, or with the exercise of reasonable diligence, should have known of the presence of the 

violation. Fla. Lemark Corp. v. Sec'y, U.S. Dep't of Lab., 634 F. App'x 681, 687 (11th Cir. 2015). 

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“The Secretary may prove that an employer had knowledge of a violation in one of two ways— 

(1) by imputing the actual or constructive knowledge of a supervisor or (2) by demonstrating 

constructive knowledge based on the employer's failure to implement an adequate safety program.” 

Samsson Constr., Incorp. v. Sec'y, U.S. Dep't of Lab., 723 F. App'x 695, 697 (11th Cir. 2018) 

(citing ComTran Grp., Inc., 722 F.3d at 1311). 

As to Item 1, the Secretary asserts [redacted] was A Crane’s supervisor and his knowledge 

is imputed to A Crane for purposes of establishing employer knowledge of violative conditions. 

(Sec’y’s Br. 13). As to Item 2, the Secretary asserts “there is no dispute that [redacted], 

Respondent’s competent person on-site to supervise crane operations, knew of the need for a prelift meeting.” (Sec’y’s Br. 23). “And he signed Respondent’s pre-lift document as a job site 

supervisor certifying that a pre-lift meeting occurred with all personnel involved.” (Id.) “But he 

never met with the employees to be hoisted and only allegedly spoke with the Superior foreman.” 

(Id.) Again, the court disagrees with the Secretary. 

It is true that when “a corporate employer entrusts to a supervisory employee its duty to 

assure employee compliance with safety standards, it is reasonable to charge the employer with 

the supervisor's knowledge actual or constructive of noncomplying conduct of a subordinate.” 

ComTran Grp., Inc., 722 F.3d at 1317 (citation omitted). “It is reasonable to do this because a 

corporate employer can, of course, only act through its agents . . . and the supervisor acts as the 

‘eyes and ears’ of the absent employer. That makes his knowledge the employer's knowledge.” Id. 

Here, however, [redacted] was the only A Crane employee at the worksite when the 

violations occurred and he credibly testified he was not in management at A Crane, did not 

supervise anybody, and had never supervised anybody at A Crane. Starks also admitted [redacted] 

had no supervisory authority over any of the workers who were to be hoisted. As to A Crane’s prelift document, it had two signature lines: one inside the “Trial Lift” box section and the second at 

the very bottom of the form, which the Secretary asserts [redacted] signed “as a job site supervisor 

certifying that a pre-lift meeting occurred with all personnel involved.” (Sec’y’s Br. 23; see also 

Ex. R-6). The court disagrees. The second signature is not inside the “Pre Lift Meeting” box; it’s 

in its own self-contained box. And [redacted] testified “this is just reviewing your weights, 

showing that you accept those weights and that is all correct. That's what that's showing there.” 

(Tr. 146:16-22). The court concludes neither of [redacted]’s signatures were intended to certify 

that all the pre-lift requirements had been met, but rather, were intended to certify his weight 

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calculations. Therefore, the court concludes [redacted] was not an A Crane supervisor and his 

actual or constructive knowledge cannot be imputed to A Crane. 

The Secretary also argues that even if [redacted] “somehow did not know of the 

violation[s],” he “would have known of the violation[s] if he had exercised reasonable diligence.” 

(Sec’y’s Br. 15). However, since [redacted] was not an A Crane supervisor, whether or not he 

exercised reasonable diligence is not relevant since his actual or constructive knowledge cannot 

be imputed to A Crane. Since the Secretary cannot prove A Crane had knowledge of the violation 

by imputing the actual or constructive knowledge of a supervisor, the Secretary must prove it “by 

demonstrating constructive knowledge based on [A Crane’s] failure to implement an adequate 

safety program.” Samsson Constr., 723 F. App'x at 697. 

A Crane’s Hoisted Personnel Platforms policy mandates that a pre-lift meeting shall be 

held after approval has been given for crane hoisted personnel platform use, and the attendees at 

this meeting must include but are not limited to: 

1. Crane Operator, 

2. Rigging Supervisor, 

3. Requesting Customer Supervisor, 

4. Safety Representative, 

5. Flagman/Signal Person ( designated), and 

6. Workers to be hoisted. 

(Ex. C-11, p. 3). Activities to be completed at the pre-lift meeting include: 

1. Required crane, rigging and platform inspections, 

2. Functional test of anti-two block device, 

3. Test lift with sample weight, 

4. Safety instruction for workers, and 

5. Permit signing and issuance. 

(Id.) A Crane’s pre-lift document also states that “[p]rior to the lift a meeting must be held with all 

personnel involved with the lift.” (Ex. R-6). 

The only evidence the Secretary points to in his brief related to A Crane’s safety program 

is [redacted]’s testimony that he had reviewed A Crane’s safety manual, “quite a while before 

then” and his testimony that “he was only certifying his load calculations for the lift and not the 

pre-lift meeting” is “further evidence” of A Crane “failing to require that their policies be 

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enforced[.]” (Id.) The court concludes this evidence is not enough to show by a preponderance 

that A Crane failed to implement an adequate safety program. Therefore, the court concludes the 

Secretary has failed to carry his burden to establish his prima facie case with respect to employer 

knowledge. Accordingly, 

IT IS HEREBY ORDERED THAT the Amended Citation 1, Item 1 and Item 2 are VACATED 

and no penalty is assessed. 

SO ORDERED. 

/s/_________________________________ 

JOHN B. GATTO, Judge 

Dated: March 21, 2023 

Atlanta, GA 

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