UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16162
ASPLUNDH TREE EXPERT CO.,
Respondent.

December 31, 1979

DECISION

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Vernon Riehl, issued in response to a Commission remand order of September 14, 1978, is before the Commission for review under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). At issue is an amended citation alleging that the Respondent, Asplundh Tree Expert Co. (‘Asplundh’), violated the Act by failing to comply with the standard at 29 C.F.R. § 1910.67(c)(2)(v)[1] in that one of its employees, crew foreman Anderson, failed to wear a body belt while working from an aerial lift. Asplundh concedes that Anderson failed to wear a body belt, as alleged, but defends on the ground that this failure was the result of unpreventable employee misconduct. In both his original decision and the decision now before us, Judge Riehl concluded that Asplundh had not established its affirmative defense. Accordingly, he affirmed the citation.

In our prior decision, we remanded the case to Judge Riehl for specific credibility findings regarding whether violations of Asphlundh’s body belt rule were in fact as infrequent as claimed by three of the Respondent’s witnesses. The judge was also instructed to re-evaluate, in the context of the testimony of these witnesses, his finding that Anderson stated to the compliance officer that he (Anderson) never used a body belt. Additionally, the judge was instructed to reconsider the adequacy of Asplundh’s safety program. Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1978 CCH OSHD ¶ 23,033 (No. 16162, 1978).

Judge Riehl subsequently issued his decision on remand, reaffirming his original decision ‘in all respects.’ He again concluded that the Respondent did not sustain its defense of unpreventable employee misconduct and again held that Asplundh violated section 1910.67(c)(2)(v). Asplundh filed a petition for discretionary review and review was directed on all issues raised by the petition. In particular, we must determine whether the judge considered the entire record in concluding that the Respondent’s safety program was inadequate, whether the judge erred in concluding that Asplundh failed to establish effective enforcement of its safety program, and whether the judge erred in rejecting Asplundh’s defense of unpreventable employee misconduct.

OSHA compliance officer Strobach observed Asplundh’s foreman Anderson using an aerial lift to trim trees away from utility lines on a street near the University of Missouri campus in Rolla, Missouri. Anderson, who was working from a four-foot-high fiberglass bucket (basket) that was approximately 25 feet in the air, was using a pole with a rotating saw at the end. At times he was reaching out of the bucket. Strobach testified that, when he first observed Anderson, he thought that Anderson did not have a safety belt on, but he was not certain. After Strobach identified himself to an employee, the employee yelled to Anderson, who was in charge of a four-member crew, to come down. When the basket of the lift was lowered, Strobach observed that, although a body belt was in the basket, Anderson was not wearing it. At the hearing in this case, Strobach testified that he had asked Anderson whether he had worn his body belt. According to Strobach, Anderson had replied, ‘No. I never wear it.’ On cross examination, Strobach stated that he was ‘pretty sure’ he had asked Anderson if it was company policy to wear safety belts, and he recalled that Anderson had been aware of such a policy. Strobach testified that he had made no effort to determine why Anderson violated company policy.

Anderson testified that on the day of the cited incident the company truck was parked on a narrow two-lane street near the entrance of the university. It blocked one lane of traffic. His job assignment was to trim approximately twenty trees on a city block. Anderson testified that he had worn his body belt while trimming most of the trees on the block, but that in hurrying to finish work on the last few trees he had forgotten to put on the belt. He stated that he had been hurrying to finish cutting the last few trees because university classes were getting out for lunch break and the traffic flow was increasing. He stated that it took approximately 15 seconds to put on the safety belt, that the belt did not impede him on the job, and that the company had not been pressuring him to get the job done. Anderson testified that he had been asked by Strobach whether he had his safety belt on and that ‘I told him no, I wasn’t wearing it at the time.’ Anderson denied saying to Strobach that he never wore his belt.

Anderson testified that he usually wore a safety belt because it was strict company policy to require belt usage and that, when he was a foreman, he had instructed his crew to wear safety belts. On direct examination Anderson testified that as foreman he had caught employees working without a belt and ‘chewed [them] our’ for not wearing a belt. This had occurred ‘very rarely.’ However, on cross examination, he said that he had seen employees working without safety belts only one or two times in his four years of experience with the company and that he had not been in charge when those incidents occurred. At first Anderson said that the employees had been given time off for not wearing belts, but he later stated that he was not sure what had happened to them and that he did not know of any employee being disciplined or demoted for not wearing a belt.

Ashworth, a tree trimmer with one year’s experience, testified that he had overheard the conversation between Anderson and Strobach from a distance of three to five feet. He further stated that he could hear the conversation clearly, although it was possible that he had heard Strobach ask two when he was not present. The testified he had heard Strobach ask Anderson whether he was wearing a belt, to which Anderson had replied ‘no.’ Ashworth did not hear Anderson say he never wore a belt. Ashworth testified that, with the exception of the cited incident, he had never seen Anderson or any other Asplundh employee fail to wear a safety belt and that on the date of the alleged violation, he had seen Anderson wear his belt ‘at times.’

Robert Herder, who had served as Asplundh’s vice president for safety since 1955, stated that his company required the use of body belts by employees in aerial lifts. He testified that ‘the requirement to be belted in at all times, beginning with the man’s entry into the basket and finishing from his exist [sic] of [sic] the basket is a condition of employment.’ This policy was outlined in Asplundh’s foreman’s manual, which was sent to every crew in the field; in a safety poster and cover letter, which was distributed monthly to the general foreman for each crew; in a safety ‘do and don’t’ list, which was mounted on every lift in the company and was discussed during safety meetings; and in a safety instruction booklet, which was given to every employee. Asplundh also required every foreman to conduct weekly safety meetings, which were about 15 minutes long. Herder testified that employees who persisted in not using the body belt would be discharged, although nobody had been discharged in the past for this reason.

Herder stated that his policy was to write memoranda to the general foreman and the particular foreman involved when he was advised of safety violations. However, Herder had never issued written memoranda regarding body belt violations because the only incidents he was aware of were those he had personally observed. He testified that he had observed ‘a few’ incidents of this type and had dealt with those situations by means of oral reprimands. Herder further testified that Anderson had never given him any ‘trouble’ before the cited incident.

Allen Pewitt, a general foreman for Asplundh and a company employee for 15 years, testified that he was Anderson’s superior. Pewitt demoted Anderson from foreman to tree trimmer, which included a cut in pay, because of the incident which led to the citation. Pewitt stated that he visited his crews at least twice a month, that he had never seen Anderson fail to wear a body belt, and that he had never known Anderson to violate company rules. Pewitt said that the company’s rule was to give a stern oral or written reprimand for the first belt violation and to discharge an employee for the second violation. While he had discovered three to five violations of the belt rule over a period of years, Pewitt stated that he had never ‘caught’ anyone twice.

In his original decision and order, Judge Riehl noted the conflict in the testimony of Strobach and Anderson as to their conversation on the date of the cited incident. He found Strobach’s testimony to be more credible and accordingly entered a finding that Anderson told the compliance officer that he never wore a body belt. He further found that, although Asplundh had an ‘excellent’ safety program ‘on paper,’ including instructions to employees to wear body belts while working from the basket of an aerial lift, the program ‘lacked implementation at the supervisory level and employees were permitted to work without wearing safety belts.’ In support of this finding that Asplundh did not effectively enforce its body belt rule, Judge Riehl cited Herder’s testimony that he had never issued a written memorandum on body belt violations, that no employee had ever been discharged for failure to wear a body belt and that he had personally observed employees not wearing belts on jobs; and Anderson’s testimony that he had ‘chewed out’ employees for working without belts. Judge Riehl also cited National Realty and Construction Company, Inc. v. OSHRC, 489 F.2d 1257, 1267 n.38 (D.C. Cir. 1973) for the proposition that evidence of a foreman knowingly violating a company rule strongly supports a finding that the rule is not effectively enforced.

In our previous decision in this case, we reversed Judge Riehl’s original decision and order. We stated that the critical issue in this case is ‘whether Asplundh effectively enforced its rule requiring the use of body belts.’ We noted that ‘[t]he testimony of Herder, Pewitt and Ashworth tends to indicate that violations of the rule were infrequent and never by the same employee, and that the few violations which were discovered were met with verbal reprimands.’ The only contrary evidence was the testimony of Strobach that Anderson told him he never wore his body belt. While Judge Riehl made a credibility finding that Anderson in fact made this statement, he made no mention of Ashworth’s testimony that he did not hear this statement or of the testimony from Asplundh’s witnesses indicating that Anderson’s usual practice was to wear a body belt. Furthermore, we stated that the judge failed to consider two possibilities: (1) that, even if Strobach was a credible witness, his recitation of the conversation with Anderson did not accurately reflect Anderson’s practices, and (2) that Strobach had misunderstood Anderson’s statement.

In addition, we responded to the judge’s reliance on testimony that violations of the body belt rule were observed by supervisors and that no disciplinary action beyond verbal reprimands was taken. We stated that, ‘if the violations were indeed as infrequent as Asplundh’s witnesses claimed, then the need for more drastic discipline did not arise, and the failure to take further disciplinary steps does not reflect adversely on Asplundh’s safety program.’ With respect to the supervisors’ observations of violations of Asplundh’s safety rule, we stated:

[T]he Commission has held that an adequate safety program includes efforts to discover whether violations of work rules have occurred. Thus, the fact that supervisors discovered infrequent violations of the body belt rule supports, rather than discredits, Asplundh’s argument that its safety.

Accordingly, we held that, ‘[i]n view of the judge’s failure to consider the entire record, we do not accept the judge’s conclusion that Asplundh’s safety program was inadequate.’ We remanded the case to Judge Riehl with the instructions noted at the outset of this decision.

In his decision on remand, the judge stated his view that his ‘original decision was entirely correct in all respects.’ The judge credited the testimony of compliance officer Strobach that, when Anderson stepped out of the aerial lift, he said to Strobach that he never wore a body belt. The judge stated that ‘Anderson told the truth as he knew it at the time’ and that the statement was ‘made during the occurrence of an action’ and thus should be ‘given great strength.’ Similarly, he later stated that ‘[t]he credibility finding is based on Anderson’s spontaneous utterance that Anderson never wore a body belt.’ The judge also stated his belief that Anderson’s ‘statement was entirely correct at the time,’ concluding that ‘Anderson told the truth at first when he said ‘no, I never wear it’.’[2]

Judge Riehl also concluded that the testimony of Herder, Anderson, Ashworth and Pewitt was not credible. The judge’s decision on remand is ambiguous. However, it appears that he based this determination as to the lack of credibility of respondent’s witnesses on three different grounds. First, the judge expressly stated in his decision that ‘[i]n assessing the credibility of the witnesses . . . [he had considered] the usual criteria of narrative, perception and memory . . ..’ He further indicated that he had determined on the basis of these considerations that the witnesses were not credible.[3] However, the judge did not specify the particular aspects of the demeanor or testimony of the witnesses that led him to conclude that they were not credible.

Judge Riehl also indicated that a second basis for his credibility determinations was the fact that the witnesses had each testified that Anderson used a body belt. Thus, for example, the judge stated that his conclusion that Herder, Anderson and Pewitt were not credible witnesses was ‘implied when we found Strobach’s testimony was credible and that Anderson told the truth when he said ‘no, I never wear it.” Similarly the judge stated that Pewitt’s testimony lacked credibility because ‘[i]t would have been absolutely impossible for him not having seen Anderson fail to wear a body belt when he was at the job site.’ Finally, in support of his credibility findings, the judge again cited Anderson’s testimony that he had ‘caught’ employees working without belts and ‘chewed them out’ and Herder’s statement that he had never issued a memorandum concerning body belt violations. The judge concluded that violations of Asplundh’s body belt rule were not in fact as infrequent as claimed by Ashworth, Pewitt and Herder and that Asplundh had failed to prove that it adequately communicated and effectively enforced its body belt rule.

On review, the Secretary argues that the judge’s credibility findings are ‘supported by the evidence and . . . he [the judge] articulated the reasons therefore [sic] and considered all the evidence in conformance with the Commission’s remand.’ The Secretary submits that we must defer to the judge’s credibility findings and affirm the judge’s decision.[4]

Asplundh contends that Judge Riehl did not follow the instructions contained in our prior decision because he failed to give adequate reasons for his credibility findings and failed to determine whether Anderson’s ‘admission’ reflected Anderson’s actual practice. It submits that Strobach’s testimony should not be credited exclusively and takes exception to the judge’s ‘bootstrapping’—that is, his reasoning that, if Strobach is credible, the other witnesses cannot be credible. Asplundh also takes exception to the judge’s statements indicating that Asplundh’s safety program was ineffectively enforced because violation of the rule were discovered by supervisors. Respondent argues that the evidence establishes its safety program to be adequately and effectively enforced, that it sustained its defense of unpreventable employee misconduct, and that the citation should be vacated.

III

As we stated in our prior decision in this case, the critical issue is whether Asplundh effectively enforced its work rule requiring employee use of body belts.[5] The resolution of this issue requires a finding concerning whether Anderson, the employee who was not wearing a belt, stated to the compliance officer that he never wore a body belt.

The judge’s finding that Anderson did make the statement is based in part on the reasoning that a spontaneous declaration should be given great weight. The fact that a statement is made spontaneously merely renders it admissible under an exception to the hearsay rule. See Federal Rule of Evidence 803(1) and (2). It does not give the statement conclusive weight. Nevertheless, the judge accorded Strobach’s testimony as to the asserted spontaneous declaration conclusive weight and failed to give any weight to any of the contrary evidence from witnesses Anderson, Ashworth, Pewitt, and Herder. Additionally, the evidentiary rule concerning spontaneous declarations does not address the preliminary question of whether the statement was in fact made, but instead addresses the secondary issue of whether the statement was truthful if made. Moreover, to the extent the judge based his finding on this rule, he did not base his finding on those factors, such as the witnesses’ demeanor, memory, perception or narration, that are most effectively analyzed by the trier of fact. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977–78 CCH OSHD ¶ 22,481 at p. 27,099 (No. 14249, 1978).

The other basis for the judge’s finding that Anderson said he never wore a body belt is the judge’s determination that Strobach was a credible witness while Anderson, Ashworth, Pewitt and Herder were not credible witnesses. We conclude that these credibility determinations are not entitled to deference. Specifically, we conclude that none of the three grounds relied upon by the judge provides an adequate basis for his credibility determinations.

Initially, we reject the judge’s conclusions based on his observation of the witnesses. The judge’s generalized statements that respondent’s witnesses were ‘not credible’ are of no value to the Commission in fulfilling our review function:

This wholesale rejection of . . . testimony under the color of a credibility evaluation without any explanation for its rejection is unacceptable . . .. An attempt, as in the instant case, to support the finding by applying a ‘credible’ or ‘not credible’ rubber stamp to witnesses’ testimony without explanation does little to assist us in reviewing the Judge’s action . . .. It is not enough, as the Judge apparently has done, to mentally consider the testimony and simply state the credibility finding.

P & Z Co., Inc., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1192, 1977–78 CCH OSHD ¶ 22,413 at p. 27,024 (No. 76–431, 1977). Here Judge Riehl failed to specify any attribute of the demeanor of the witnesses or any part of their testimony that would warrant the rejection of the entire testimony of respondent’s four witnesses.

We also reject the judge’s reliance on his determination that Strobach was a credible witness as a ground for determining that the other four witnesses were not credible. The only testimony by Strobach that conflicts with the testimony of respondent’s witnesses is Strobach’s statement that Anderson told him that he never wore a body belt. However, even if we were to accept the judge’s conclusion that Strobach was a credible witness, we would not on that basis alone conclude that Anderson made the statement in question. The record as a whole creates a strong presumption that, assuming Strobach was a credible witness, he misunderstood what Anderson said. Nevertheless the judge refused to even consider this possibility. See note 2 supra. Moreover, even if we were to accept the judge’s finding that Anderson made the statement in question, we would not on that basis alone conclude Anderson in fact never wore a body belt. Again the record as a whole creates an inference that the statement, even if made, did not accurately reflect Anderson’s actual work practices. The judge also failed to consider this possibility. We therefore conclude that, particularly in view of the possibilities suggested above, Strobach’s testimony as to a single uncorroborated statement assertedly made by an employee during the course of an inspection does not provide an adequate basis for the wholesale rejection of Asplundh’s entire case.

Finally we reject the judge’s reliance on testimony concerning the discovery of infrequent body belt violations as a basis for his credibility determinations. In our prior decision in this case we stated that Asplundh’s evidence that its supervisors discovered infrequent violations of its body belt rules supported, rather than discredited, Asplundh’s argument that its safety program was effective. Asplundh Tree Expert Co., supra, 6 BNA OSHC at 1954 n. 6, 1978 CCH OSHD at p. 27,841 n. 6 (quoted in pertinent part, supra). In view of our finding, infra, that violations of Asplundh’s body belt rule were in fact infrequent, we conclude that the judge erred in again relying on this evidence as a basis for discrediting Asplundh’s witnesses.

Consequently, we conclude that the judge’s credibility findings and supporting explanation fail to resolve the issue of whether Anderson’s statement was in fact made. Therefore, we will not defer to the judge’s credibility findings and we must determine whether the preponderance of the evidence supports a finding different from that reached by the judge. See Russell-Newman Manufacturing Co., Inc. v. NLRB, 407 F.2d 247 (5th Cir. 1969). Cf. M.J. Lee Construction Co., note 5 supra (Commission entered independent finding after vacating judge’s contrary finding on the ground that it was unsupported by the record); Armor Elevator Co., Inc., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973–74 CCH OSHD ¶ 16,958 (Nos. 425 & 426, 1973), appeal dismissed no. 73–2249 (6th Cir. 1973) (findings warranted if supported by a preponderance of the evidence).

At the hearing, foreman Anderson denied making the statement attributed to him by the compliance officer, and testified that he usually wore a body belt. Ashworth testified that he heard Strobach ask Anderson whether he was wearing a belt, to which Anderson answered ‘no’; the witness testified that he did not hear Anderson state that he never wore a belt. Ashworth further testified that, prior to the incident in question, he had never seen Anderson fail to wear a body belt and that Anderson had been wearing a body belt earlier that day. Herder testified that Anderson had never given him any ‘trouble’ before the incident that led to the citation. Finally, Pewitt testified that he had never seen Anderson fail to wear a body belt and had never known Anderson to violate company rules. In contrast to all of this testimony is the compliance officer’s testimony that Anderson made the statement that he never wore a belt. We find that the preponderance of the evidence establishes that Anderson did not make the statement in issue. We further find that the preponderance of the evidence establishes that Anderson’s usual practice was to wear a body belt while working from an aerial lift.

The testimony of Herder and Pewitt indicates that the company policy for dealing with violations of the body belt rule was a three-step disciplinary procedure consisting of (1) a stern oral warning, (2) a written reprimand or suspension, and (3) discharge. The record establishes that, although employees have been orally reprimanded, there have been no discharges because no employee has been caught violating the work rule more than once. In addition, the record reveals that violations of the rule by employees have been infrequent. Pewitt stated that over a period of years he had discovered only three to five violations of the rule. Anderson’s testimony, while internally inconsistent as to some details, also indicates that violations of the body belt rule were infrequent. Ashworth testified that except for the cited violation he had never seen Anderson or any other employee fail to wear a body belt. Pewitt pointed out that Anderson had been demoted from foreman for his violation of the body belt rule.

Inasmuch as violations of the body belt rule were infrequent and never by the same employee, and the few violations that were discovered were met with verbal reprimands, we enter a finding that Asplundh effectively enforced its work rule requiring the use of body belts in aerial lifts. See M.J. Lee Construction Co., note 5 supra.

Consequently, inasmuch as it is undisputed that Asplundh has established a work rule designed to prevent the violation, had adequately communicated this rule to its employees, and had taken steps to discover if violations of the rule had occurred, and the record establishes that Asplundh effectively enforced its rule, we conclude that Asplundh has maintained its burden of proving the affirmative defense of unpreventable employee misconduct. See Asplundh Tree Expert Co., supra, 6 BNA OSHC at 1953, 1978 CCH OSHD at p. 27,841. See also, Mountain States Telephone & Telegraph Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD ¶ 22,668 (No. 13266, 1978), appeal filed, No. 78–1438 (10th Cir., June 2, 1978).

Accordingly, the judge’s decision is reversed, and item 2 of the citation alleging a nonserious violation of 29 C.F.R. § 1910.67(c)(2)(v) is vacated.

It is so ORDERED.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: DEC 31, 1979

CLEARY, Chairman, Dissenting:

As set out in the majority opinion, this case was remanded previously to Judge Riehl with instructions to make credibility findings concerning the testimony of the several witnesses at the hearing. Judge Riehl did so, and concluded that the testimony of the compliance officer Stroback was credible and, under the circumstances of the case as developed, that the testimony of the respondent’s witnesses was less so.

The majority also correctly recites that the critical issue in the case is whether Asplundh effectively enforced its workrule requiring employee use of bodybelts. The salient aspect of this issue concerns a statement purportedly made by Anderson that he never wore a bodybelt. The compliance officer, Stroback, asserted at trial that he made the statement. Anderson denied it, and a third witness indicated that he did not hear Anderson make the statement, although he heard other parts of the colloquy between Stroback and Anderson. If Anderson did make the statement it would be persuasive in the disposition of this case as a res gestae statement, that is, the circumstances under which Anderson made the statement enforce the belief that it was true. We are thus confronted with a credibility finding, a choice between conflicting statements by witnesses on both sides.

It is generally accepted in administrative law that credibility judgments rest primarily with the administrative law judge (ALJ). NLRB v. Jack August Enterprises, Inc., 583 F.2d 575 (1st Cir. 1978); United States Steel Corp. v. Bridges, 582 F.2d 7 (5th Cir. 1978). Indeed, the findings of an ALJ ‘may not be disturbed unless those findings are not supported by substantial evidence.’ United States Steel Corp. v. Bridges, supra at 9. This rule of administrative review is not new. There is considerable history behind it.

In Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456 (1951), the Supreme Court, upon reviewing the legislative history of the Administrative Procedure Act,[6]6 quoted with approval a recommendation by the Attorney General’s Committee on Administrative Procedure. The recommendation reads as follows:

In general, the relationship upon appeal between the [ALJ], and the agency ought to a considerable extent to be that of trial court to appellate court. Conclusions, interpretations, law, and policy should, of course, be open to full review. On the other hand, on matters which the [ALJ], having heard the evidence and seen the witnesses, is best qualified to decide, the agency should be reluctant to disturb his findings unless error is clearly shown. (Footnote omitted.)

340 U.S. at 494, 71 S.Ct. at 467–468. While this recommendation by the Attorney General’s Committee was not made a mandatory part to administrative law, the Court cautioned that the recommendation should not be viewed as repudiated. 340 U.S. at 495, 71 S.Ct. at 468. The Supreme Court found that

[n]thing in the statutes suggests that the [NLRB] should not be influenced by the [ALJ’s] opportunity to observe the witnesses he hears and sees . . . Nothing suggests that reviewing courts should not give to the [ALJ’s] report such probative force as it intrinsically commands.

Id. Indeed, the Court concluded that evidence supporting an agency’s conclusion may be viewed as being ‘less substantial’ when the agency reaches a conclusion different from that of the ‘experienced [ALJ] who has observed the witnesses and lived with the case.’ 340 U.S. at 496, 71 S.Ct. at 469.

The Commission itself has recognized that credibility findings are properly in the province of the presiding ALJ. In C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977–78 CCH OSHD ¶22,481 (No. 14249, 1978), the Commission stated:

It is the policy of the Commission to ordinarily accept an Administrative Law Judge’s evaluation of the credibility of witnesses, for it is the Judge who has lived with the case, heard the witnesses, and observed their demeanor. (Citation and footnote omitted.)

6 BNA OSHC at 1297, 1977–78 CCH OSHD at p. 27,099.

In this case, the majority’s treatment of the judge’s finding speaks louder than the lip service they pay to the Commission’s policy under such circumstances. The conclusion of a judge who has observed the witnesses and lived with the case is being questioned and overruled because his more delicate treatment of the credibility issue does not comport with the majority’s view. Since credibility findings often involve considerations outside the scope of most findings of fact, a more tactful approach is called for under certain circumstances. I find no fault with the judge’s approach in this instance. Furthermore, I believe, as the Supreme Court recognized, that the evidence supporting the majority’s conclusion is ‘less substantial’ because of its treatment of the judge’s conclusion.

Additionally, the majority presumes that Stroback misunderstood what Anderson said. Yet there is no basis for such a ‘presumption’. This conflicts with Stroback’s testimony, and in fact with that of the speaker Anderson and the other witness, which make no suggestion that Anderson said something that could have been misunderstood. Nor was Stroback cross-examined to this end. The fact that Stroback testified that he heard Anderson make such a statement, and Anderson’s denial, do not raise a presumption that Stroback misunderstood. The majority is thus making a credibility finding of its own out of the presence of the witnesses which is inconsistent with the judge’s finding, and has no foundation in the record.

I acknowledge that the majority does not wholly rely on the fact or not of this statement having been made, for they do consider other factors in concluding that the preponderance of the evidence supports a finding different from that reached by the judge. Nevertheless, if Anderson did made the statement attributed to him it is a very compelling aspect of the case. I find no basis for the Commission to substitute its judgement for that of the judge and would conclude that the respondent’s safety program was not adequately enforced.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 16162
ASPLUNDH TREE EXPERT CO.,
Respondent.

October 31, 1978

DECISION AND ORDER

ON BEHALF OF:

JOHN B. RENICK, Esquire, U.S. Department of Labor Office of the Solicitor, Kansas City, Missouri, For the Complainant

STEVEN R. SEMLER, Esquire, Zimmerman and Obadal, Washington, D.C., For the Respondent

DECISION ON REMAND

Vernon Riehl, Judge, OSHRC

This case comes before us on a remand from a decision by the Commission. Commissioners Barnako and Cottine were the majority and Chairman Cleary for the minority.

We have been asked to make specific findings concerning whether witnesses Ashworth, Pewitt, and Herder, who testified in the case, were credible witnesses; also to make specific findings on the question whether violations of the respondent’s body belt rule were in fact as infrequent as claimed by Ashworth, Pewitt, and Herder; and to evaluate witness Strobach’s testimony in light of the testimony of these other witnesses. This Judge is then to reconsider whether Asplundh’s safety program was adequate.

We have carefully reviewed the file and feel that our original decision was entirely correct in all respects. We affirm our position as set forth in the decision that there is no question whatsoever but that the respondent has gone to great lengths in providing safety equipment and a very thorough safety policy on paper. We also reaffirm our conclusion that unfortunately the actual carrying through down to the working level has not functioned as it should, and that this indicates a certain degree of laxity on the part of the respondent in enforcing the standards.

It has never been our policy in cases we have written on previously to single out individuals in our credibility findings as having lied, not told the truth, being afraid of losing their job because of their testimony, lying to protect a fellow worker, misstating the facts to justify their actions, or any of the other variety of things where witnesses either lie, evade, indulge in selective perception, or misstate for any reason.

It is our finding from reviewing the transcript and reviewing our memory of the witnesses that when Compliance Officer Strobach first contacted respondent’s employee Anderson, that Adnerson told the truth as he knew it at the time, that he was not wearing a body belt, and also volunteered the fact ‘no, I never wear it.’ Such statements made during the occurrence of an action are given great strength. See Park Construction Company, Docket 2044, 75 OSAHRC 53/A13; CCH OSHD ¶ 16,479, 19,591. The witness Anderson did not have time to misconstrue the matter. He simply blurted out what was the truth and I believe his statement was entirely correct at the time. It is my finding that Strobach was an entirely credible witness and that he was testified exactly to the situation that existed.

I believe the evidence is credible as indicated on page 71 of the transcript where the foreman caught his men working without belts and chewed them out. This would certainly show other occasions in which respondent has not complied with the standards. In this case it must be remembered that Anderson was the respondent’s foreman and he has testified to ‘I never wear them’ [belts]. This would indicate to me that if this testimony is credible, and I believe it is, that he has continuously flaunted the standards in front of his employees, setting a very poor example insofar as complying with the standards. Those of us who have tried cases through a long period of years (in my case I have dealt with several thousand witnesses over a period of 40 years) develop a knack of knowing when a witness is credible and when not. There are many signs that the experienced attorney, cross-examiner, or judge may see. There are literally hundreds of mannerisms that the witnesses adopt when they are either trying to lie about something or not quite tell the whole truth. There are various appearances that they develop through the years that indicate to you that they are perhaps trying to protect themselves from being fired, reprimanded, or trying to protect their brother worker. There are some witnesses that lie just to keep fit. Some witnesses are guilty of selective perception.

At any rate, through my years’ of experience and from observing the witnesses at this particular trial, I concluded that the credible evidence established the fact that respondent was in violation of the standard. I concluded that Strobach was a very credible witness. I concluded that Anderson told the truth at first when he said ‘no, I never wear it.’

Inasmuch as the Commission has requested me to give my views on credibility more explicitly, it is my opinion that Anderson did tell the truth when he said that he told Strobach that he never wore his belt.

It is my conclusion also from reviewing the testimony and my memory that Ashworth did not give a credible account of what happened when he said he didn’t hear Anderson say he never wore a belt.

In my observation of Ashworth testifying, I decided he was entirely not credible and gave no weight whatsoever to his testimony. I agree that Robert Herder, Asplundh’s vice president for safety, did quite a lot to put a program on paper for use by the employees. Unfortunately, in my judgment, this never left the paper as witnessed by the various bits of evidence in the file which would indicate a continued pattern of benign neglect insofar as safety is concerned in accordance with the standards.

In support of part of my conclusion is the fact that Anderson has been demoted from his job as foreman for violating the body belt policy. This would certainly indicate that respondent thought he was violating the standards. The importance of this being that he is the foreman and represents the company and has violated the standards according to his own testimony all the time insofar as a question of using a safety belt is concerned.

When we made the original finding of credibility of Strobach’s testimony, we made a difficult value judgment regarding conflicting testimony which is supported by the record. The testimony on the case shows that the respondent’s employee was not wearing a body belt at the time of the inspection. This fact alone lends great credibility to the finding on the disputed question whether witness said he never wore it. It is also evidence of an ineffective safety program. We have given respondent due credit for its efforts in safety. Unfortunately, they have failed in their duty to protect their workers in accordance with the OSHA law.

As we understand it, the primary responsibility to evaluate witnesses’ testimony reposes in this Judge. In assessing the credibility of the witnesses Strobach, Anderson, Ashworth, and Pewitt, we consider the usual criteria of narrative, perception, and memory, plus drawing on our 40 years’ experience in dealing with witnesses.

We have considered for a long time as we tried these OSHA cases what the problem is of getting the employees to obey the standards. We have pondered why supervisory employees constantly violate the standards in safety matters even though there is a good safety program on paper.

We discussed this matter in Secretary of Labor v. Carnation Company, a Corporation, Docket 8165, 78 OSAHRC 54/D9; CCH OSHD ¶ 20,281. In that case, the program for noise conservation was beautifully set forth on paper. Regrettably, it never got off the paper and there was no program.

The same situation arose in the Secretary of Labor v. Mel Jarvis Construction Company, Inc., Docket 77-1038, CCH ¶ 22,569 (1978 OSHD). In that case it was stated that:

We don’t know what the problem is in complying with safety standards, but apparently working foremen, and foreman above them in some cases, have decided for one reason or another that compliance with the safety standards is second, third, or possibly even further down the line in their list of priorities. Somehow the serious business of providing for the safety of employees is tossed aside like a beanbag by the working foreman or supervisory employee over him. Somehow he conceives in his mind in a rush situation, or where he is pushed from the pressure of other construction problems, that it is alright to let safety slide for a few days, weeks, or entirely, so that he can fulfill his schedule or take care of other assignments.

It is our feeling that no matter how conscientious the top management may be that it would be an intolerable situation to dismiss citations against respondents whose supervisors representing them fail to do their duty (other than in isolated instances).

If this were so, then a complete defense to all sorts of failures on the part of employers could be brought about simply by publishing excellent safety programs on paper and giving a lecture or two. We feel there is much more to it and that there must be a continuing diligence especially in industries where there is a great chance of injury and death for violations. The employer must get it through to his superintending force that compliance with the law and with the safety standard is first in order to protect the lives and welfare of his employees. Other matters should be pursued after safety standards are complied with, and before the employer puts his employees in positions where they might sustain serious injury or death.

In Secretary of Labor v. Sletten Construction Company, BNA 6 OSHC 1091 (1977), the Commission said:

Respondent asserts that it should not be held liable for this violation because it resulted from the willful misconduct of its employee in removing his safety belt. In effect, the respondent is contending that this violation was unpreventable. This is not a defense unless the employer establishes that he conducted an adequate safety program. The essential foundations of such a program are specific safety instructions and workrules addressing hazards peculiar to the job being performed. These instructions and workrules must also be effectively communicated to employees and uniformly and effectively enforced.’ (emphasis supplied) Enfield’s Tree Service, Inc., 77 osahrc 32/B3, 5 BNA OSHC 1142, 1977–78 CCH OSHD ¶ 21,607 (No. 9118, 1977)’ (emphasis supplied)

We distinctly found at the time of listening to Pewitt testify that his testimony lacked credibility. It would have been absolutely impossible for him not having seen Anderson fail to wear a body belt when he was at the job site. Therefore, the conclusion to be drawn establishes a violation of company rules and OSHA standards.

The credibility finding is based on Anderson’s spontaneous utterance that Anderson never wore a body belt. He was found in violation at the time of the visit. This establishes a different story line from Pewitt’s testimony. The total preponderance of credible evidence established to our satisfaction that these violations of the Rule occurred on a consistent basis. When witness Herder said that he had never issued a memo concerning body belt violations, it was an admission that he as a part of management took no such efforts in regards to the most serious problems that they could have, namely, not wearing a body belt at dangerous heights. From observing the witnesses closely and comparing their testimony, we concluded that the testimony of Herder, Anderson, and Pewitt were not credible at the time of our decision. This is implied when we found Strobach’s testimony was credible and that Anderson told the truth when he said ‘no, I never wear it.’

The Commission cites Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975–76 CCH OSHD para. 20,167 (No. 5811, 1975) wherein the Commission indicated that an employer is normally responsible for violations committed by its supervisory personnel, the employer can defend by showing that it took all necessary precautions to prevent the occurrence of the violation. The employer must show that it established work rules designed to prevent the violation, adequately communicated these rules to its employees, took steps to discover if violations of these rules occurred, and effectively enforced the rules when violations were discovered.

The evidence establishes that employer did establish work rules designed to prevent the violation. The evidence also shows that these rules were not adequately communicated to the foreman on the job and that there were violations by other employees. There is no evidence to show that the employer effectively enforced the rules when violations were discovered. There is evidence to the contrary in that the foreman constantly did not wear a belt on the job and was violating the standard when he was inspected. We have considered the total evidence insofar as respondent’s efforts on safety are concerned. The intention was admirable but they simply didn’t cut the mustard when it came to having an effective program. The Commission uses such words as ‘possibility,’ ‘exist the possibility,’ and ‘misunderstood.’ These are nice speculative words but they do not go to the essence of this case insofar as examining the credible evidence of witnesses.

In summation, we do not find that the violations of respondent’s body belt rule were in fact as infrequent as claimed by Ashworth, Pewitt, and Herder as we do not believe them to be credible witnesses. We feel that Strobach’s testimony is credible. We conclude that the respondent’s safety program was inadequate because of lack of continuing diligence to effectively communicate the ideas of safety to their employees.

FINDINGS OF FACT

1. At the time of the inspection of respondent’s workplace, by a compliance officer of OSHA on November 12, 1975, there were four of respondent’s employees on a tree trimming job. The compliance officer found respondent’s employee, Herbert Anderson, in a vehicle-mounted aerial lift approximately 25 feet in the air (respondent’s exhibit 1) in a basket without wearing a body belt.

2. After alighting from the basket, Mr. Herbert told the compliance officer that he ‘never wore a belt.’

3. Respondent had a safety program which included excellent written material (exhibits R–1 through R–8) which instructed employees that they were to wear body belts while working from the basket of an aerial device such as the one found by the compliance office on the date of inspection.

4. Respondent’s safety program, while excellent on paper, lacked implementation at the supervisory level and employees were permitted to work without wearing safety belts.

5. Mr. Anderson, respondent’s employee found working in the basket without a body belt, was the foreman of respondent’s crew. Respondent’s violations of the body belt rule were not in fact as infrequent as claimed by Ashworth, Pewitt, and Herder.

6. Witness Strobach’s testimony was credible and established violations of the standard.

7. The testimony of witnesses Ashworth, Pewitt, and Herder was not credible.

CONCLUSIONS OF LAW

1. At all times material hereto, respondent was an employer within the meaning of section 3 of the Occupational Safety and Health Act of 1970.

2. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

3. At the time of the inspection, respondent’s employee, in violation of item 2, citation 1, was working in the basket of a vehicle-mounted aerial device with two hinged boom sections without wearing a body belt.

4. Respondent violated section 5(a)(2) of the Act by failing to comply with the occupational safety and health standard promulgated under the Act, 29 CFR 1910.67(c)(2)(v).

5. The penalty of $45 is appropriate for the aforesaid violation. Respondent’s safety program was inadequate for the reason that they did not establish a continuing diligence to effectively communicate the safety program to its employees.

6. Respondent has not effectively carried down to the working foreman level the knowledge and ability to comply with the standards in the performance of their work.

DECISION

Based upon the above findings of fact, credibility findings, conclusions of law, and by a preponderance of the credible evidence, it is hereby ORDERED that item 2 of the citation for nonserious violation is affirmed and a penalty of $45 is hereby assessed for said violation.

Vernon Riehl, Judge, OSHRC

Date: October 31, 1978

[1] The standard provides:

§ 1910.67 Vehicle-mounted elevating and rotating work platforms.

(2) Extensible and articulating boom platforms.

(v) A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.

[2] The judge’s response to our suggestion that Strobach may have misunderstood Anderson was the following:

The Commission uses such words as ‘possibility,’ ‘exist the possibility,’ and ‘misunderstood.’ These are nice speculative words but they do not go to the essence of this case insofar as examining the credible evidence of witnesses.

[3] Thus, the judge made the following statements in his decision:

In my observation of Ashworth testifying, I decided he was entirely not credible and gave no weight whatsoever to his testimony.

We distinctly found at the time of listening to Pewitt testify that his testimony lacked credibility.

From observing the witnesses closely and comparing their testimony, we concluded that the testimony of Herder, Anderson, and Pewitt were [sic] not credible at the time of our decision.

[4] The Secretary relies on the following Commission decisions as support for his contention: Fanning & Doorley Construction Co. Inc., 77 OSAHRC 157/C11, 5 BNA OSHC 1720, 1977–78 CCH OSHD ¶ 22,055 (No. 11008, 1977); P. Gioioso & Sons, Inc., 77 OSAHRC 153/C3, 5 BNA OSHC 1694, 1977–78 CCH OSHD ¶ 22,080 (No. 15494, 1977); Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975–76 CCH OSHD ¶ 20,441 (No. 3395, 1976).

[5] It is undisputed that Asplundh had an established work rule requiring use of body belts by employees whenever they worked in aerial lifts, from the time they entered to the time they exited. It is also undisputed that Asplundh effectively communicated this work rule to its employees. Herder’s testimony as to Asplundh’s extensive efforts to communicate its body belt rule to employees, see Part I, supra, was not rebutted. In addition, the record clearly establishes that Anderson was fully aware of Asplundh’s workrule at the time he violated it. Indeed, we find no support in the record for the judge’s finding that Asplundh failed to adequately communicate its work rule. Accordingly, we vacate the judge’s finding and independently enter our own finding that Asplundh effectively communicated its body belt rule. See M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD ¶23, 330 (No. 15094, 1979).