TRI-CITY CONSTRUCTION CO.  

OSHRC Docket No. 77-3668

Occupational Safety and Health Review Commission

June 18, 1980

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Richard D. Rhyne, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Paul E. Dixon is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   In that decision, the judge concluded that the Respondent, Tri-City Construction Co., had committed a willful violation of section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by failing to comply with the standard published at 29 C.F.R. §   1926.600(a)(6).   The judge found that a backhoe operated by an employee of the Respondent came into contact with an overhead 7200-volt power distribution line in contravention of the standard's requirements and thus in violation of the Act.   Judge Dixon also affirmed the allegation by the Secretary of Labor ("the Secretary") that this violation was willful within the meaning of section 17(a) of the Act, 29 U.S.C. §   666(a).

Following the issuance of the judge's decision [*2]   and order, the Respondent filed a petition for discretionary review taking exception to various findings, conclusions, statements, and rulings of the judge.   Specifically, the Respondent took exception to the following:

(1) the judge's admission of two exhibits offered by the Secretary into evidence;

(2) the judge's interpretation of those exhibits;

(3) the judge's reliance upon a previous violation by the Respondent of 29 C.F.R. §   1926.550(a)(15); n1

(4) the legal test applied by the judge in concluding that the violation was willful; and

(5) various "findings" of the judge relating to the Respondent's awareness of the hazard at its worksite, the use of observers at the worksite, the availability of precautionary measures the Respondent could have taken to eliminate the hazard, the reasons for the Respondent's failure to comply with the standard, and the adequacy of the Respondent's safety program.

Commissioner Barnako thereafter directed the case for review on the issues raised by the Respondent in its petition.   Both the Secretary and the Respondent filed briefs in response to that direction for review.

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n1 The requirements of section 1926.550(a)(15) are incorporated by reference into section 1926.600(a)(6), the standard at issue in the instant case.

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The Respondent's initial exception is to the judge's ruling admitting the Secretary's Exhibits C-10 and C-11 into evidence over the Respondent's objections.   These exhibits are comprised of correspondence between the Respondent and Kansas City Power & Light Co. ("the power company"), the owner of the power distribution lines at the inspected worksite, including the 7200-volt line involved in the violation at issue.   The Respondent's contentions before us are not clear in that it sets forth different arguments in its petition for review and in its brief on review.   Apparently it is asserting that Exhibit C-10 was irrelevant because it related to the location of underground power cables as opposed to overhead power lines, that both exhibits were irrelevant because they related to worksites other than the inspected worksite, and that Exhibit C-11 was inadmissible hearsay. We conclude that these contentions are without merit.   Exhibits C-10 [*4]   and C-1 were clearly relevant to several of the issues presented in this case, including the Secretary's assertions that the Respondent was fully aware on the basis of its prior experiences of the hazards involved in working around power lines, that the Respondent knew or should have known that it could contact the power company to have power lines de-energized or otherwise rendered safe, and that the Respondent's actions over a period of years demonstrated a pattern of careless conduct while working around power lines.   To the extent Exh. C-11 was offered for the purpose of proving prior instances of careless conduct by the Respondent, it was hearsay as defined at Rule 801(c) of the Federal Rules of Evidence. n2 Nevertheless "it is well established that hearsay is admissible in administrative proceedings and may be used as probative evidence." Hurlock Roofing Co., 79 OSAHRC    , 7 BNA OSHC 1867, 1872-1873, 1979 CCH OSHD P24,006 at p. 29,149 (No. 14907, 1979) n3.   Furthermore, the simple fact that the Respondent received the letter was relevant to the issues in this case.   Thus, Exhibit C-11 was relevant and admissible regardless of "the truth of the matter asserted." Fed. R.   [*5]   Evid. 801(c).   Accordingly, we conclude that Judge Dixon acted correctly in admitting Exhibits C-10 and C-11 into evidence and we reject the Respondent's exception to his rulings.

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n2 Rule 801(c) defines the term "hearsay" as follows:

"Hearsay" is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

n3 In his dissenting opinion in Hurlock Roofing Co., supra, Commissioner Barnako agreed with the Commission majority "that hearsay is admissible in our proceedings" but added "the caveat that a finding should not be based solely on uncorroborated hearsay." 7 BNA OSHC at 1874, 1979 CCH OSHD at p. 29,150. In the case now under review, the letter admitted into evidence as exhibit C-11 asserts that, prior to the incident that led to the citation at issue, the Respondent "caused" outages and damage to overhead lines and underground cables also owned by the same power company but located at a different worksite. This assertion is hearsay, as the lead opinion correctly notes, supra. However, Commissioner Barnako notes that the assertion in Exhibit C-11 was corroborated at the hearing to a limited extent by the testimony of Jerry Wilson, the Respondent's construction manager in charge of utilities.   Wilson testified that there were three claims arising out of the project discussed in Exhibit C-11 and admitted that at least one of those incidents involved contact between excavating equipment operated by the Respondent and a cable owned by the power company.   Accordingly, in Commissioner Barnako's view, Judge Dixon did not err in admitting Exhibit C-11 into evidence "to prove the truth of the matter asserted" and did not err in entering any finding based on "uncorroborated" hearsay.

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The Respondent also takes exception to the judge's reliance on Exhibits C-10 and C-11 as the basis for his following statements:

The power company referenced respondent to the recorder's office where by law it was required to keep on file persons responsible for disconnecting service.   The power company evinced an interest in respondent's operation by requesting of respondent the location of its work.

The Respondent further contends that the judge erroneously concluded on the basis of these statements that, as stated in the Respondent's petition, "there were individuals at the Power & Light Company who would be responsive to Respondent's request to de-energize the power lines in question."

We agree with the Respondent that Exhibits C-10 and C-11 do not support the quoted statements, at least to the extent the statements appear to apply to the project in question.   Neither of the exhibits relates directly to the conditions at the inspected worksite. Moreover, the power company's referral of the Respondent to the recorder's office was a referral of matters involving underground power transmission lines.   [*7]   Nevertheless, we conclude that the judge's error was harmless in that there is other evidence of record specifically related to the inspected worksite that establishes both the power company's concern witht the Respondent's operations and the Respondent's awareness of persons within the power company that it could contact in the event problems arose.   Thus Exhibits C-10 and C-11 were merely cumulative evidence with respect to the ultimate issue of whether the Respondent knew or should have known that it could contact the power company to obtain abatement of the hazard. Similarly, the judge's statements based upon Exhibits C-10 and C-11 were merely cumulative with resect to his analysis of that issue.

The Respondent next takes exception to the judge's finding that "the power company warned respondent of the hazard of its overhead line to respondent's work, with its representative testifying that shrouding or blanketing could have been provided to respondent for its operations." The Respondent contends that this finding is not supported by the preponderance of the evidence.   Again we conclude that, while the Respondent's exception is technically correct, the judge's error was harmless.   [*8]   The record establishes that the power company's warning was not specifically directed to the hazard at the worksite in question.   Nevertheless, the power company did issue the Respondent a general warning as to the "extreme hazard to your own employees in contacting our lines", further stating that "[p]rimary lines are uninsulated and as such are capable of causing severe injury or death." Exhibit C-11.   The Respondent should have known that this warning, although directly related to another worsite, was also applicable to the inspected worksite. In any event, the record clearly establishes that the Respondent was aware of the hazard created by the power lines at the particular worksite in question.   With respect to the second part of the judge's finding quoted above, we note that the power company's representative did not directly testify that shrouding or blanketing could have been provided to the Respondent for its operations. Nevertheless, the testimony of the power company's representative creates the reasonable inference that the Respondent could have obtained shrouding or blanketing, if not de-energization of the lines, through the power company. n4

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n4 The judge properly discounted the Respondent's effort to establish, as stated by the judge," that such protection was unavailable based upon some previous experience and a conversation with a field foreman whose function at the time was to determine that the power poles were not dislocated." The Respondent's evidence did not negate the clear inference from the Secretary's evidence that protection was available from the power company.

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The Respondent also takes exception to the judge's statement that the backhoe operator "had never had an observer work with him while he was on the job." Again the Respondent has merely pointed to a harmless and technical error on the part of the judge.   There is no direct rebuttal of the testimony that the Respondent used an observer system while the backhoe was engaged in digging operations.   However, it is also uncontroverted that the Respondent did not designate anyone to act generally as an observer for the backhoe, that the Respondent did not as a matter of practice use an observer when the backhoe [*10]   traveled back and forth beneath the power lines at the worksite, and that there was no observer at the time of the incident that led to the citation at issue.   The judge correctly stated all of these facts in other parts of his decision not referred to by the Respondent, and the statement to which the Respondent takes exception must be viewed in that context.   Moreover, we conclude that the judge correctly relied upon the Respondent's failure to use a designated observer while the backhoe was traveling beneath power lines as a factor in concluding that the violation was willful.

The Respondent takes further exception to the following statement by Judge Dixon:

The strongest inference drawn by this writer from the evidence of record[,] where a simple shrouding or blanketing of the power line in the designated location where the backhoe would repeatedly cross and where a request for de-energization would result in charges to the respondent[,] is the inference that respondent was operating on the basis of avoiding costs at the expense of exposure of its employees to death by electrocution.

The Respondent contends that this "finding . . . is totally unsupported by the record." We conclude [*11]   that the judge's statement is not a finding but rather is merely dicta.   The statement is unnecessary to the judge's analysis and disposition of the case.   Indeed, based upon our review of the decision as a whole, we conclude that the judge did not rely upon the quoted reasoning as part of his determination that the violation was willful. Accordingly, it is irrelevant whether we would draw the same "inference" from the record evidence.

In addition, the Respondent asserts that Judge Dixon "used an incorrect standard to define willfulness." The judge concluded "that a willful violation is established when the evidence shows that the respondent was aware of the requirement of the Act, yet made a conscious and deliberate decision not to comply." He applied this test in concluding that the Respondent's violation of the Act was willful. The Respondent contends that the proper test for willfulness is that set forth in Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1207 (3rd Cir. 1974) ("Willful . . . involves an element of obstinate refusal to comply.")

We have expressly declined, on numerous occasions, to adopt the Frank Irey test advocated by the Respondent in this case.   [*12]   See, e.g., Titanium Metals Corp. of America, 80 OSAHRC    , 7 BNA OSHC 2172, 2177, 1980 CCH OSHD P24,199 at p. 29,433 (No. 14080, 1980), pet. filed, No. 80-1333 (3rd Cir., March 10, 1980).   Instead, as we stated in Titanium Metals, "the Commission has followed the test that regardless of venal motive, willfulness is established by a conscious, intentional, deliberate decision and may be characterized by a careless disregard of the requirements of the Act or an indifference to employee safety." Id. Accordingly, we conclude that the test applied by the judge was more stringent than the test established under Commission precedent.   While we agree with the judge "that a willful violation is established when . . . the respondent . . . made a conscious and deliberate decision not to comply" with a known requirement of the Act, we would also find a willful violation when the respondent's conduct is properly characterized as showing a careless disregard of the requirements of the Act or an indifference to employee safety.   Thus, the judge technically erred in applying an unduly restrictive test for determining willfulness. That error, however, clearly favored the [*13]   Respondent rather than resulting in prejudice to the Respondent.

The remainder of the Respondent's exceptions to the judge's decision are without merit and they are rejected. n5

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n5 The Respondent takes exception to the judge's reliance on the Respondent's prior violation of section 1926.550(a)(15).   See note 1 supra. It argues that this "reliance . . . is unsupported and is against the preponderance of the evidence" and further that it is not "appropriate to base a willful violation on a previous non-serious violation." The Respondent also takes exception to the judge's findings that the Respondent had the "capacity" to have the power lines de-energized and that the Respondent maintained an inadequate safety program.   We view Judge Dixon's statement concerning the adequacy of the Respondent's safety program both as a finding of fact and as a conclusion of law.   Accordingly, we conclude that the judge's findings are supported by a preponderance of the evidence and that his conclusions are consistent with Commission precedent.   Judge Dixon's findings and conclusions are therefore affirmed.

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The Respondent did not expressly take exception in its petition to the judge's conclusion that its failure to comply with section 1926.600(a)(6) was a willful violation of the Act.   Nevertheless, each of its exceptions is related to this ultimate issue. We conclude that a preponderance of the record evidence supports a finding and conclusion that the Respondent made a concious, intentional and deliberate decision to allow its employee to operate the backhoe in a manner that evidenced its careless disregard of the requirements of section 1926.600(a)(6) and its indifference to the safety of that employee and other employees in the area.   The Respondent's violation is therefore correctly characterized as willful. Accordingly, we affirm Judge Dixon's decision and order in which he affirmed the Secretary's citation for willful violation of the Act due to noncompliance with 29 C.F.R. §   1926.600(a)(6) and assessed a penalty of $10,000.

IT IS SO ORDERED.  

CONCURBY: CLEARY

CONCUR:

CLEARY, Chairman, concurring:

I concur in the result in this decision.