OSHRC Docket No. 81-2617


Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.


This case is before the Occupational Safety and Health Review Commission pursuant to former Chairman Rowland's direction for review issued under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

At issue in this case is whether Administrative Law Judge Ramon M. Child erred in concluding that Collins Well Service Company ("Collins") violated section 5(a)(1) [[1]] of the Act by allowing its employees to ride the elevator on an oil derrick without wearing tied-off safety belts.

The only witness who testified at the hearing was the compliance officer from the Occupational Safety and Health Administration who investigated an accident in which a Collins employee suffered a fatal fall.  The compliance officer testified that he was told by Gary Whiteside, an employee of Collins, that Whiteside had observed the deceased employee riding the elevator without wearing a safety belt.  The compliance officer testified that it was apparently a common practice among Collins' employees to ride the elevators without wearing a tied-off safety belt and that he received this information from Whiteside.  A written statement signed by Whiteside, introduced into evidence by the Secretary, said that employees on occasion rode the elevators without safety belts. Whiteside had worked for Collins for one month.  The compliance officer also testified that he had spoken with Nathan Brown, Collins' safety director, during the inspection.  On cross-examination the following testimony was elicited from the compliance officer:

Q. In your talking with the people at the site or at the company, as a matter of fact Mr. Brown told you that there was indeed a safety belt on the rig, was there not?
A. Yes, there was a safety belt.
Q. He also told you that it was the company safety policy not to allow what happened that caused the accident, riding the blocks unprotected?
A. (No response.)
Q. Is that correct?
A. He didn't say that to me. I don't recall that he said that.
Q. You didn't cover whether or not this was a violation of company safety policy?
A. He didn't have a safety policy as I remember.  He was in the process of writing one.

Judge Child concluded that riding the elevator without wearing a tied-off safety belt was a recognized hazard in the oil well servicing industry based on the American Petroleum Institute's ("API") RP 54: "Recommended Practices for Occupational Safety and Health for Oil and Gas Well Drilling and Servicing Operations," an exhibit in the case.  Moreover, he determined that the hazard was likely to cause serious physical harm or death and that Collins could have abated the hazard by establishing and enforcing a work rule that requires employees riding the elevator to wear a tied-off safety belt or by requiring employees to ascend the derrick by way of the ladder attached to it using a climbing assist.  The judge ruled that Collins had knowledge of the allegedly violative conduct and the employee's riding of the elevator without a tied-off safety belt was foreseeable and not unpreventable employee misconduct.  He therefore ruled that there was a violation of section 5(a)(1) and assessed a penalty of $480.

Commissioner Cleary would adopt the judge's decision and thus affirm the citation.  He agrees that riding the elevator without wearing a tied-off safety belt is a recognized hazard in the oil well servicing industry and is likely to cause death or serious physical harm.  In his opinion, this case concerns whether Collins took adequate steps to prevent such conduct by implementing an adequate safety program.   See General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453 (1st Cir. 1979).

Commissioner Cleary notes that, with respect to the compliance officer's reference to what Whiteside told him, hearsay evidence is admissible in Commission proceedings and can be used as probative evidence, while the weight assigned to it depends on its reliability.  Power Systems Division, United Technologies Corp., 81 OSAHRC 40/C13, 9 BNA OSHC 1813, 1981 CCH OSHD 25,350 (No. 79-1552, 1981).  Commissioner Cleary concludes that, in this case, there is no reason to doubt the truth of the statement Whiteside made to the compliance officer or that the compliance officer accurately related the statement in his testimony. The judge determined that the compliance officer was credible, and Whiteside had no ostensible reason to lie to the compliance officer.  Commissioner Cleary also notes that Collins had every opportunity to call witnesses in its behalf but chose not to do so.  See Astra Pharmaceutical Products, Inc. v. OSHRC, 681 F.2d 69 (1st Cir. 1982) (less evidence needed when unrebutted by opponent with full possession of the facts than in a case where there is contrary evidence).

Concerning the compliance officer's statement that Brown had told him that Collins did not have a safety program, Commissioner Cleary determines that it is not hearsay and is admissible under Rule 801(d)(2)(D) of the Federal Rules of Evidence.   Brown was Collins' safety director, so his statement was within the scope of his agency.  Commissioner Cleary concludes that the judge was justified in relying on this unrebutted evidence.

Chairman Buckley would reverse the judge and vacate the citation.  He agrees with the judge that riding the elevator without a safety belt is a recognized hazard in view of the evidence of the API's recommended practice RP 54.  This case is thus distinguishable from H-30, Inc. v. Marshall, 597 F.2d 234 (10th Cir. 1979), in which the Tenth Circuit vacated a similar citation for lack of evidence of industry recognition of the alleged hazard.  Chairman Buckley also agrees that the hazard is likely to cause serious physical harm or death.  However, he concludes that the Secretary's evidence was otherwise insufficient to make a prima facie showing of a violation.  In addition to establishing that an alleged hazard is likely to cause death or serious physical harm and is recognized to be a hazard, the Secretary has the burden of producing evidence that the cited employer's safety practices failed to free the workplace of the hazard to the extent an accident was preventable.  See, e.g., Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Thus, in this case, the Secretary would have to prove that Collins did not have an effectively implemented work rule requiring its employees to use tied-off safety belts while riding the elevator of an oil derrick.   In Chairman Buckley's view, the Secretary failed to demonstrate this.

The compliance officer had no personal knowledge of Collins' safety program, but testified only as to what he was told by one of Collins' supervisors, the safety director, and by one of its employees, the crew member working at the well site.  The compliance officer's account of his conversations with these two individuals establishes that Collins provided safety belts to its workers at this site.  According to the compliance officer, he was told that a safety belt was maintained on the platform.   He did not or could not testify whether other belts were provided or available.   The compliance officer did testify that industry custom was to have other safety belts at this worksite in addition to that on the platform.  No evidence was introduced even suggesting that Collins deviated from industry practice.[[2]]

Nor did the Secretary prove that Collins did not have and enforce a workrule requiring employees to wear a safety belt while riding the elevator or that the safety director or any Collins supervisor was aware of any failure of employees to use safety belts while riding the elevator.  See, e.g., National Realty, 489 F.2d at 1267, n. 40 (Secretary has burden of proving allegation that employer failed to issue appropriate instructions).   The compliance officer testified that, as he recalled, there was no safety program and that one was being written.  But the compliance officer did not specify whether the safety director told him this, and the testimony indicates that he was unsure of his memory.  Moreover, the testimony is vague.  The compliance officer said there was no program, but seems to have meant that there was no written program.  He did not specify that there was no rule in existence at all, such as one communicated orally to the employees, and the Secretary introduced no evidence indicating the value of written instructions relative to oral instructions.  Id.

In contrast to the testimony on which the Secretary relied, the compliance officer testified that Collins had monthly safety meetings, posters, and safety manuals and rated the safety program as average.  Although one safety manual did not include a rule about safety belts on the elevators, the compliance officer did not know if such a rule was included in a second safety manual, the Associated Oil Servicing Contractors' Safety Manual, which he acknowledged was provided to employees.  The compliance officer never reviewed this manual.  Finally, the compliance officer's testimony as to what employee Whiteside told him and the written statement signed by Whiteside indicates that employees on "occasion" rode elevators of derricks without safety belts, but there was no testimony showing the frequency of these occurrences or that Collins permitted, condoned, or was even aware of the practice.

These gaps in the record could have been cured by the testimony of someone familiar with Collins' practices.  The record is devoid of such testimony.   "Having the burden of proof, the Secretary must be charged with these evidentiary deficiencies." National Realty, 489 F.2d at 1267.  The Secretary failed to establish in this case that Collins did not have a work rule prohibiting the riding of elevators without a safety belt and thus did not prove that Collins failed to free its workplace of a recognized hazard.[[3]]

The two Commission members are divided on whether the judge erred in his disposition in this case.[[4]]  To resolve this impasse and to permit this case to proceed to a final resolution, the members have agreed to affirm the judge's decision but accord it the precedential value of an unreviewed judge's decision.  See Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD 22,313 (No. 14910, 1977), aff'd sub nom.  Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).



DATED:  OCT 19 1984

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[[1]] Section 5(a)(1) provides:

Each employer . . . shall furnish 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.

[[2]] Contrary to Collins' claim, the compliance officer's testimony regarding what safety director Brown told him was not hearsay. Rule 801(d)(2)(D) of the Federal Rules of Evidence excludes from the category of hearsay "a statement by his [a party-opponent's] agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship." E.g., Power Systems Division,United Technologies Corp., supra; H-30, Inc., 77 OSAHRC 156/A2, 5 BNA OSHC 1715, 1977-78 CCH OSHD 22,050 (No. 76-752, 1977), rev'd on other grounds, 597 F.2d 234 (10th Cir. 1979). The most that can be gleaned from the compliance officer's testimony concerning the number of safety belts is that he was not told by the safety director that there were other belts on the worksite.  However, the compliance officer did not clarify whether he actually asked the safety director about this or whether he learned from the safety director that there were not any other belts.  Thus, the only record evidence establishes that at least one safety belt was provided and that probably others were provided as well.

[[3]] Respondent objects to the testimony of Whiteside as hearsay.   Chairman Buckley would agree that the employee's statements were hearsay since these statements do not qualify as admissions of a party under Fed. R. Evid. 801(d)(2)(D).   The characterization of evidence as hearsay or non-hearsay is not the sole determinant of admissibility.  Hearsay is admissible and may be given weight in administrative proceedings provided there is some indicia of reliability.  Under Rule 801(d)(2)(D) the statements of an agent within the scope of employment are deemed to have the requisite degree of reliability, since the statement is made against interest.   In the OSHA context, however, an employee statement made about the employer's worksite is not made against interest.  Indeed, in proceedings before the Commission the interests of the employee ostensibly are represented by the Secretary with the employer as adversary.  See sections 8(a), (e), and (f) of the Act, 29 U.S.C. 657(a), (e), and (f) (inspections and the opportunity for employees to consult with and advise the Secretary about matters of safety and health in the workplace); section 9(a) of the Act, 29 U.S.C. 658(a) (citations).  The adversary proceedings under the Act cannot be presumed to sufficiently provide the "guarantee of trustworthiness" for the statements of employees that can be presumed to exist in the usual civil proceedings with which the Federal Rules of Evidence are concerned.  See Fed. R. Evid 801 advisory committee note.  Thus, the statements in this case by employee Whiteside are hearsay.  Cf. United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979) (statements not a product of the adversary process).  The judge did not err, however, in admitting this evidence.  The evidence simply does not establish a violation.

[[4]] As established by the Act, the Commission is composed of three members.   Section 12(a), 29 U.S.C. 661(a).  Under section 12(f) of the Act, 29 U.S.C. 661(e), official action can be taken by the Commission with the affirmative vote of at least two members.  Because of a vacancy, the Commission is currently composed of two members.