UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 99-60237 Summary Calendar ____________________

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

- 1 - 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,

(5th Cir. 1989)

(citing

(a)); its legal conclusions must be upheld

unless they are “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law”.

(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

- 2 - 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,

(quoting Community for Creative Non-Violence v. Reid,

(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,

. Instead, viewing the record as a whole, we

conclude that the decision was supported by substantial evidence.

DENIED

- 3 -