A. MAZZETTI & SONS, INC.

OSHRC Docket No. 15780

Occupational Safety and Health Review Commission

September 8, 1977

[*1]

Before: CLEARY, Chairman: and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Donald W. Booker, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Judge William E. Brennan, dated June 2, 1976, is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision affirmed a serious violation of 29 C.F.R. 1926.451(d)(10) n1 for failure to provide railings and toeboards on a scaffold that respondent's employees were using for laying blocks. The respondent contends on review that the complainant failed to prove the violation by a preponderance of the evidence and that the impartiality of the Judge was impaired by the Judge's actions during the hearing. The Commission rejects all contentions of the respondent and affirms the decision of the Judge.

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n1 The standard requires that tubular welded frame scaffolds be guarded as follows:

"Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), and approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

[*2]

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At the hearing, the complainant's only witness, the compliance officer who conducted the inspection of the respondent's worksite, testified that at the time of the inspection the respondent's employees were working atop a 30-foot-high scaffold without any protection whatsoever. He stated that during the two hours he was on the site the conditions were unchanged. Following the inspection, he obtained a statement from Alvin Ruffin, an employee of respondent. The statement, which was admitted into evidence, indicates that Mr. Ruffin had been working on the unguarded scaffold without the protection of a safety belt. The photographs taken by the inspector during the inspection depict three employees at the top of the scaffold, directly exposed to a falling hazard. The pictures also indicate that the mortar between the blocks at the top of the wall that the respondent was constructing was wet. Two pictures, Exhibits C-4 and C-5, show a block hanging from a rope attached to a pulley running to the top of the scaffold.

The respondent presented three Mazzetti brothers and one employee, Lewis Ellison, as [*3] its witnesses. The Mazzetti brothers testified that, although it appeared at the time of the inspection that the employees were laying blocks from the scaffold, they actually were engaged in raising the scaffold. The brothers stated that normally the respondent installs ropes around the exposed perimeters of the scaffold as railing, but that the rope had to be removed in order to raise the scaffold. They also testified that the block being raised in Exhibits C-4 and C-5 was used for ballast for this operation. Mr. Ellison testified that it would take 15-30 minutes to raise a scaffold.

The basis for the respondent's contention that the complainant failed to prove the violation by a preponderance of the evidence is that the testimony of the inspector was insufficient to prove the violation because it lacked adequate corroboration. The respondent also attacks the complainant's use of Mr. Ruffin's statement instead of his actual testimony. Essentially, the respondent contends that the statement is hearsay evidence that should not be accorded any weight under the circumstances of this case and, therefore, cannot be considered corroboration of the inspector's testimony. Finally, [*4] the respondent contends that the evidence required the Judge to find that the respondent was raising the scaffold and that the raising of the scaffold made it impossible to have protective guarding in place.

Judge Brennan makes reference to Mr. Ruffin's statement in his decision but also finds as follows:

"The evidence does establish that Respondent's employees were engaged in laying block from this scaffold for some hours prior to the inspection on October 17, 1975. The photographic exhibits clearly show wet mortar lines on from 11 to 13 courses of freshly laid concrete block in the wall under construction. There is no question that the scaffold was not equipped with the guardrails and toeboards required by the cited Standard. The task of raising the two 12-inch inboard planks and brackets upon which they were positioned, required 15 to 30 minutes, according to employee Ellison, who had been working for most of the day on the scaffold in question. Compliance Officer Tackett, who conducted the inspection, testified that the scaffold was not moved during this two-hour inspection. Thus, on a factual basis, Respondent's defense is subject to grave question."

Thus, it is clear [*5] that Judge Brennan gave little or no weight to the testimony of the brothers. Judge Brennan made these credibility determinations after seeing and hearing the witnesses. The Commission agrees with the Judge's findings.

Whether or not the Judge relied on Mr. Ruffin's statement is not crucial. n2 The Commission finds that the photographic evidence and the testimony concerning the time the scaffold was in place and the time required for raising the scaffold establishes the violation by a preponderance of the evidence.

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n2 The respondent's attorney by specifically stating at the hearing that he had no objection to the statement being admitted as evidence waived any objection to its admissibility. See Fed. Rules of Evid. Rule 103(a)(1). The respondent's objection to the admission of the statement at this stage in the proceeding, expressed as a failure to produce Mr. Ruffin for cross-examination, is untimely. Id. Chairman Cleary also notes that Mr. Ruffin's statement can be considered as trustworthy because it is not hearsay. Fed. Rules of Evid. Rule 801(d)(2)(D).

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Moreover, the Judge did not decide the case only on his rejection of the respondent's contention that the scaffold could not be guarded while it was being raised. He held that:

"[E]ven accepting the testimony of the Mazzetti brothers concerning the use of ropes on this scaffold, at face value, as a matter of law, such testimony does not establish a defense to this violation. Even if such ropes were used to tie the scaffold into the wall being constructed to prevent any movement thereof, such ropes would not afford protection 'equivalent' to the guardrails and toeboards mandated by the cited Standard."

The Commission agrees under the circumstances of this case that the evidence fails to establish that the ropes allegedly used by the respondent provided protection equivalent to guardrails. Furthermore, the respondent's evidence established that toeboards had not been used.

The final contention made in the respondent's brief is the following:

"THE COURT ERRED IN PROSECUTING THE CASE FOR THE COMPLAINANT. The Court, by the record as to the subpoena of all records of the respondent without clarification or designation, on [*7] the Friday before a Monday hearing, and its cross-examination of respondent witnesses, exceeded the proper limits of an Administrative Court. The role of an Administrative Judge is to hear the matter as presented by the complainant's attorney and the respondent's attorney, not to prosecute the matter as well as judge the matter."

The complainant issued to the respondent a subpoena duces tecum demanding all of the respondent's "books, records and receives showing the firm's contracts, purchases, shipments, payments, time records, place and date of incorporation for 1975 and 1976," primarily in order to prove that the respondent was subject to the Act as an employer "engaged in a business affecting commerce," n3 which the respondent had not admitted in its answer. At the hearing, the respondent moved to quash the subpoena on the basis that it was issued late and was overly broad. The Judge denied the motion. The respondent was not required to comply with the subpoena, however, because the complainant proceeded without the requested information and was able to prove that the respondent was subject to the Act without it. Therefore, the respondent was not prejudiced by the Judge's [*8] denial of its motion.

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n3 29 U.S.C. 652(5).

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The respondent's contention that the Judge's questioning of its witnesses denied the respondent a fair hearing is also rejected. Rule 66 of the Commission's Rules of Procedure n4 requires the Judge "to assure that the facts are fully elicited." An administrative law judge has an affirmative duty to establish a complete record, n5 and it is the function of the Judge to see that the facts are "clearly and fully developed." n6 In so doing he may question witnesses. n7

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n4 29 C.F.R. 2200.66.

n5 See Brennan v. O.S.H.R.C. & John J. Gordon Company, 492 F.2d 1027, 1032 (2d Cir. 1974); Scenic Hudson Preservation Conference v. F.P.C., 354 F.2d 608, 620 (2d Cir. 1965); Cella v. United States, 208 F.2d 783, 789 (7th Cir. 1953), cert. denied, 347 U.S. 1016 (1954); 5 U.S.C. 556(c).

n6 Bethlehem Steel Co. v. N.L.R.B., 120 F.2d 641, 652 (D.C. Cir. 1941).

n7 N.L.R.B. v. International Brotherhood of Electrical Workers, AFL-CIO, Local 453, 432 F.2d 965 (8th Cir. 1970); 29 C.F.R. 2200.66(j).

[*9]

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Under the circumstances of this case, the Judge's questioning of the respondent's witnesses was not unreasonable and fulfilled his duties as fact-finder. The record does not establish that he departed from his impartial role. Accordingly, the Commission finds that the Judge's conduct of the hearing was proper. n8

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n8 The Commission also observes that the respondent did not object at the hearing to the questions it now complains of on review and therefore waived its right to raise these objections at this stage of the proceeding. Fed. Rules of Evid. Rule 103(a)(1). Only once during the hearing did the respondent object to a question of the Judge, but even then only on the basis that the information the Judge was requesting of the witness was confidential information. The Judge withdrew the question.

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The Judge's decision is affirmed.