B & K PAVING COMPANY

OSHRC Docket No. 59

Occupational Safety and Health Review Commission

September 5, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on Chairman Moran's order directing review of a decision made by Judge James J. Lawwill. Judge Lawwill concluded that Respondent had committed a serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") and assessed a penalty of $550.

We have reviewed the entire record n1 and affirm the Judge's disposition for the reasons stated herein. n2

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n1 We note that Respondent was given the opportunity to file a post-trial brief and to brief the issues on review. It has not done so.

n2 The Judge stated in his conclusions of law that "the Secretary has jurisdiction of the parties to and the subject matter of this case." This obviously is in error. The Judge's decision is amended to read "the Commission has jurisdiction of the parties to and the subject matter of this case."

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The relevant facts are as follows: [*2] Respondent is a partnership engaged in the paving of roads. In August 1971, Respondent set up an asphalt batch plant in Tillamook, Oregon to prepare materials in order to pave a nearby road. In order to reduce smoke coming from the stack, Respondent pumped water from a nearby stream into the stack. On August 17, it was noticed that the pump was not operating properly. As a result, Respondent's employee, James Wells, who had been responsible for setting up the plant, went to the creek with Johnson, a state highway inspector, to investigate the problem. Wells, having decided that the filter on the pump's intake hose was clogged, waded into the creek to inspect the filter. Wells picked up the hose, and then dropped it, exclaiming, "This water is hot." Johnson then asked him what he meant, to which Wells replied, as he started toward the bank, "I mean it's hot." Wells collapsed while reaching for the bank, and subsequently died, although Johnson immediately had the power shut off. The pump was not grounded. Ground leads had been purchased but not installed.

The Complainant established the above facts by having the Oregon State inspector and the Complainant's Compliance [*3] Officer, both of whom had investigated the incident, testify as to what they had been told about the incident by Grambo, Well's immediate superior. We note that Grambo apparently acquired his knowledge of the immediate events surrounding Well's death from discussions with Johnson, since Grambo was not present at the time of the accident. Neither Grambo nor Johnson testified at the hearing. Thus Complainant's case is based almost entirely on uncorroborated hearsay and double hearsay.

Although hearsay is admissible in administrative proceedings and can be used as probative evidence ( Richardson v. Perales, 402 U.S. 389 (1971); Davis, Administrative Law Treatise, 14.03, 14.08 (1958)), we normally will not allow a citation to stand solely on the basis of hearsay evidence. Milprint, Inc., O.S.H.R. 1383, CCH Employ. S. & H. Guide para. 16,816 (Rev. Com'n., 1973). However, in the instant case, Walter Katyryniuk, one of Respondent's partners, admitted at the hearing that the Compliance Officer gave an accurate and fair description of the events surrounding Well's death. Furthermore, Gus Bergonzine, Respondent's other partner, testified, [*4] "In regard to the violation, I realize that there probably is a violation here." In light of Respondent's explicit adoption of the hearsay presentation of the facts, we conclude the evidence is sufficiently probative to support a finding of a violation.

Accordingly, the decision of the Judge is affirmed to the extent it is consistent herewith. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the finding that respondent committed a serious violation of section 5(a)(1) of the Act by failing to properly ground the pump in this case. n3

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n3 It should be noted that one of the issues on which this case was directed for review was whether the Secretary issued the citation with "reasonable promptness" under section 9(a) of the Act. This issue was not raised before a during the hearing and it is not a jurisdictional issue to be raised at any stage of the proceedings or considered by the Commission even though it is not raised by the parties. Chicago Bridge & Iron Co., No. 744 (January 24, 1974).

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There is abundant evidence that the hazard here was "recognized." Grounding of non-current carrying metal parts of portable electric motors was required by the state safety codes both in Oregon, n4 where the accident occurred, and in Washington, n5 where respondent's office is located. The requirement of such grounding was also recognized by the National Electrical Code and the National Fire Protection Code. n6

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n4 Oregon Safety Code 4-1-11.

n5 Washington State Electrical Code 381A.

n6 National Electrical Code 250-43(a) and 430-142, ANSI C1-1971 (Rev. of C1-1968). 5 National Fire Code 250-43(a) and 430-142, as adopted May 1971 (1973 ed.).

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It is also clear that a substantial probability exists that death or serious physical harm could result from a failure to ground electrical motors. Indeed, one death did result here.

To establish the remaining two elements of a serious violation -- that respondent knew or could have known of the presence of the violation with the exercise of reasonable [*6] diligence and that the pump chassis was ungrounded at the time of the accident -- it is necessary to rely on hearsay evidence. Both the compliance officer and the Oregon State inspector testified that Grambo, respondent's paving superintendent, told them that the pump was ungrounded at the time of the accident. The compliance officer also testified that Grambo told him that although the grounding leads had been purchased before the accident, they had not been installed. n7 That the grounding straps had been purchased at the time of the accident allows the reasonable inference that respondent actually knew of the grounding hazard at the time of and before the accident.

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n7 The record does not reveal why Grambo was not called to testify by the Secretary.

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The admissibility of hearsay evidence in administrative adjudications is well-recognized. n8 See 2 K. Davis, Administrative Law Treatise 14.08 (1958). The issue here, is to what extent such evidence may be relied upon in finding a violation.

[*7]

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n8 While it is arguable that the statements here are independently admissible as admissions of a party opponent, that issue has not been raised and is not reached here.

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Although the exact status of the residuum rule in administrative proceedings is uncertain, I believe the factual circumstances in the present case to be well within the holding in Richardson v. Perales, 402 U.S. 389 (1971). In Perales, the hearsay evidence was medical reports from five different specialists in a disability benefits claim under the Social Security Act. The reports were uncorroborated but not inconsistent among each other. Emphasizing the reliability of medical reports, the Supreme Court held that,

. . . a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical [*8] testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician. n9

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n9 402 U.S. at 390.

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While I do not view the evidence in the present case as sufficient to show explicit adoption of the hearsay matters by respondent, under the Perales' guidelines, I do find sufficient reliability and probative value in the evidence to support the finding of a serious violation of section 5(a)(1) of the Act.

First, although the hearsay statements in the present case are not possessed of the inherent assurances of reliability of written medical reports, there is no reason to question the veracity or reliability of the testimony here. The testimony by the compliance officer and the Oregon inspector that the pump was ungrounded at the time of the accident is [*9] mutually corroborative. Each elicited the facts from Grambo on a separate occasion and for a separate purpose. The assertions that the pump was ungrounded and that the ground leads had previously been purchased, if untrue, are easily rebutted. Knowledge of such matters is peculiarly that of respondent. Respondent's two partners, however, did not dispute these assertions.

Second, an opportunity, analogous to that in Perales, exists here to cross-examine the source of the material presented at the hearing as hearsay. As Perales could have subpoenaed the doctors who wrote the medical reports, so might respondent have called Grambo to testify. Indeed, Grambo was one of respondent's senior employees. Moreover, here respondent also had the opportunity to cross-examine the compliance officer and the Oregon inspector, but did not do so.

For these reasons, I concur in the affirmation of the order of the Judge.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: One cannot read the two preceding opinions without the feeling that they are truly reaching to find some reed, however thin, upon which to justify their conclusion that a violation has been proved in this case. One opinion concedes [*10] that "Complainant's case is based almost entirely on uncorroborated hearsay and double hearsay," yet finds the employer guilty anyway. The other states that the employer was wrong for many reasons such as not observing requirements of certain safety codes. This opinion uses capitalization and grammatical phrasings in a manner calculated to persuade an uninformed reader to conclude that these "codes" were binding requirements in this case. I have undertaken extensive legal research to determine the applicability of the referenced material. n10 I conclude that some of it is strictly unenforceable guidelines and the remainder depends upon certain voltage minimums which cannot be applied here for lack of evidence as to voltage. The reference, therefore, is inapplicable.

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n10 This exercise alone convinced me that it is unrealistic to expect ordinary employers and employees to be aware of and to observe all the various safety codes or guidelines which some private association or local government may have drawn up at some time. Telephone calls to the persons charged with administering or enforcing the same turns up confusion, uncertainty and lack of knowledge. Safety should never be an enigma buried in some musty bureaucratic dustbin. If there is a recognized safe way to operate, it must be shown in the evidence that ordinary people so recognize it. The fallaciousness of using obscure "codes" (or even State safety regulations) to establish this had been pointed out before. See Secretary v. National Realty and Construction Company, 1 OSAHRC 731, 749 (1972), Secretary v. Engstrum and Nourse, 2 OSAHRC 447, 451 (1973).

[*11]

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Even less sound is the suggestion in the same opinion that respondent might have called Grambo to testify but didn't do so, followed by the comment "Indeed, Grambo was one of respondent's senior employees." What does this mean? That respondent had some obligation to produce witnesses? If so, it belies a feeling on the part of the author of that statement that an employer is presumed guilty until he proves himself innocent.

The truth is that there is no competent evidence whatsoever in this record which would justify the conclusion reached by the Commission that this employer has violated the Act as charged. The burden of proof is on the complainant to establish each and every allegation in his citation. n11 This record clearly demonstrates that he has failed to carry that burden.

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n11 29 C.F.R. 2200.73(a).

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To prove the violation alleged in this case there must be competent evidence of (1) The existence of a condition which [*12] is hazardous, (2) It must be recognized as such, (3) It must be causing or likely to cause death or serious physical harm to respondent's employees, and (4) It must arise out of a condition of employment.

The opinion of one or more members of this Commission that such-and-such a condition is hazardous or that it is a recognized hazard or that it is likely to cause death to an employee is not enough. There must be facts in the record of trial. Their absence cannot be filled by Commission members serving as "associate prosecutors" n12 or "expert witnesses for the Secretary" n13 as has happened in prior cases.

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n12 Madden v. Hodgson et al.,    F.2d    (C.A., 9th Cir., No. 72-1874, decided July 29, 1974).

n13 National Realty and Construction Company, Inc., v. OSAHRC et al., 489 F.2d 1257 (C.A., D.C. Cir., 1973).

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Absent the hearsay statements in this case, no proof has been established to show that the pump, which was the supposed hazard, had not been properly grounded on the date that the accident happened. [*13] n14 Additionally, complainant failed to prove that this accident would not have occurred but for the alleged failure to properly ground this pump. The mere occurrence of an accident does not necessarily mean a hazard exists as defined in 29 U.S.C. 654(a)(1). See Secretary v. Koppers Company, Inc., 1 OSAHRC 666 (1972).

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n14 Inspection ocurred on August 18, 1971. The citation and notice of proposed penalty were issued on September 14, 1971. 29 U.S.C. 658(a) provides that a citation shall be issued with "reasonable promptness" after the inspection. Congress, absent mitigating circumstances, intended this period to be no more than 3 days. The decision below should be overturned on this aspect alone. See Secretary v. Plastering, Inc., Secretary v. Advanced Air Conditioning, Inc.,

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Considering the hearsay evidence, the Commission, while agreeing with the general principle that a citation cannot normally [*14] stand when based solely on hearsay evidence, n15 affirms a violation of this section because of the intra-judicial statements of respondent's partners. I do not find these remarks persuasive.

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n15 See Secretary v. Milprint, Inc., Secretary v. Donald G. Lambert, 2 OSAHRC 72 (1972); Secretary v. Bethlehem Steel Corporation,

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Mr. Katyrynuik's statement that he had "no quarrel" with the compliance officer's description was not shown to have been made from firsthand knowledge, nor was it substantiated by any nonhearsay evidence.

Mr. Bergonzine stated ". . . that there probably . . . [was] a violation here." This was incompetent opinion evidence -- a legal conclusion concerning a determination of a violation of 29 U.S.C. 654(a)(1) offered by a person with no legal background or apparent privity to the complexities of this Act. For some indication of the complexities of 654(a)(1), see the National Realty [*15] case, supra.

Additionally, the Commission's affirmation of this alleged violation, predicated on these incompetent remarks, may have a "chilling effect" upon employers representing themselves in these proceedings.

Had respondent been represented by an attorney, most of the evidence of record probably would not have been admitted because of its hearsay nature. Mr. Bergonzine's remark would have been excluded as incompetent. Should a decision be affirmed solely on this type of evidence? If so, the likely result is that employers will need attorney representatives to protect themselves against Commission decisions based solely on incompetent evidence.

It has not been, and should not be, our position that employers need attorneys to protect their rights in these proceedings. This decision, however, indicates the unfortunate results which can befall an employer when he appears without counsel.

[The Judge's decision referred to herein follows]

LAWWILL, JUDGE, OSAHRC: This is an action under section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as OSHA or Act) to review a citation issued by the Area Director, Occupational [*16] Safety and Health Administration, United States Department of Labor on behalf of the Secretary of Labor (hereinafter Secretary) pursuant to section 9(a) and a proposed assessment of penalty thereon issued pursuant to section 10(a) of OSHA.

The citation issued on September 14, 1971 alleges that the B & K Paving Company, the respondent, (hereinafter employer) in a work place under its ownership, operation, or control located at Tillamook, Oregon seriously violated the Occupational Safety and Health Act of 1970 by "Failure to ground exposed non-current carrying metal parts of electrical equipment constituting a recognized hazard that is causing or likely to cause death or serious physical harm to employees" in violation of the General Duty Clause of section 5(a)(1) of the Act.

On the same date, September 14, 1971, the aforesaid Area Director issued a Notification of Proposed Penalty wherein it proposed to assess a penalty of $550.00 on the alleged serious violation. The employer by letter dated September 27, 1971 contested the citation and proposed assessment of penalty. Subsequently this matter was referred to the Occupational Safety and Health Review Commission for hearing [*17] pursuant to section 10(c) of OSHA. The undersigned Administrative Law Judge was appointed to hear this case and the within matter assigned to him for hearing pursuant to section 12(e) of OSHA. Pursuant to notice the matter was duly heard in Longview, Washington on April 4, 1972.

After considering the entire record and the exhibits together with the stipulations, contentions, representations and admissions of the parties, it is concluded that the substantial evidence of record supports the following Findings of Fact.

FINDINGS OF FACT

1. The employer, the B & K Paving Company, a partnership composed of Mr. Walter Katyryniuk and Mr. Gus Bergonzine, with offices at 407 Oak Street, Kelso, Washington 98626, engaged in business as an asphalt paving contractor outside the State of Washington and in the State of Oregon, and at the time of the alleged violation was under contract with the State of Oregon to repair U.S. Highway 101, an interstate highway, and used Washington and Oregon residing employees in its project.

2. The employer on August 17, 1971 and for some days prior thereto failed to ground exposed non-current carrying metal parts of electrical equipment involving [*18] a water pump motor at a creek at Tillamook, Oregon used in conjunction with its asphalt batch plant.

3. The failure to ground the electrical equipment was a recognized hazard within the meaning of section 5(a)(1) of the Act, and a violation of the Act.

4. The violation was a serious violation within the meaning of section 17(k) of the Act in that there was not only a substantial probability that death or serious physical harm to an employee could result but did result in death to an employee.

5. The employer actually knew and with the exercise of reasonable diligence could have known of the presence of the violation.

6. The proposed penalty of $550.00 for the violation is not excessive, unreasonable, inconsistent with statutory authority or administrative discretion nor inappropriate under the circumstances of this case.

CONCLUSIONS OF LAW

1. The employer at the times here material was engaged in business affecting commerce within the meaning of Section 3 of the Act, and the Secretary has jurisdiction of the parties to and the subject matter of this case.

2. The employer's failure on August 17, 1971 to ground exposed non-current carrying metal parts of electrical [*19] equipment involving a water pump motor at a creek at Tillamock, Oregon used in conjunction with its asphalt batch plant was a recognized hazard within the meaning of section 5(a)(1) of the Act, and a violation of the Act.

3. The violation was a serious violation within the meaning of section 17(k) of the Act. The proposed penalty of $550.00 for the violation of the Act as herein found is not excessive, unreasonable, inconsistent with statutory authority or administrative discretion nor inappropriate under the circumstances of this case.

ORDER

In view of the foregoing, it is ordered that,

The Secretary's citation dated September 14, 1971 charging a serious violation of the Act and the penalty of $550.00 assessed against the employer, B & K Paving Company, be and the same are hereby affirmed.