POWER SYSTEMS DIVISION, UNITED TECHNOLOGIES CORPORATION

OSHRC Docket No. 79-1552

Occupational Safety and Health Review Commission

April 27, 1981

[*1]

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

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

W. Scott Railton, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Ben D. Worcester is before the Commission on review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In that decision the judge vacated two citations that alleged a failure on the part of Respondent, Power Systems Division, United Technologies Corporation, to comply with the standards at 29 C.F.R. 1910.309 and 29 C.F.R. 1910.132(a). The Secretary of Labor ("the Secretary") petitioned for review of the judge's decision. Commissioner Cottine granted review on all issues raised by the Secretary's petition including the following:

1. Whether the judge erred in vacating Citation No. 1, items 1A and 1B and Citation No. 2, item 2 on the basis that the occupational safety standard published at 29 C.F.R. 1910.309 "is so vague as to be unenforceable".

2. Whether the judge erred in vacating Citation No. 2, item 1, alleging noncompliance with [*2] 29 C.F.R. 1910.132(a), on the basis that the Secretary failed "to introduce reliable, probative and relevant evidence that the respondent failed to provide and require the use of protective equipment when necessary".

For the reasons stated below, the judge's decision is vacated and the case is remanded.

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n1 29 U.S.C. 661(i).

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At the outset of the hearing in this matter, Judge Worcester voiced the opinion that he had "some doubts about the validity" of the standard at 29 C.F.R. 1910.309. n2 Judge Worcester referred to an article in 9 Occupational Safety and Health Reporter (BNA) No. 17 at 379 (September 27, 1979). The article reported remarks made by the Secretary of Labor on the occasion of the issuance of a notice of proposed rulemaking regarding electrical standards. n3 The Secretary was reported to have said that "many of the provisions of the National Electric Code ["NEC"] do not apply to worker safety and health, because it is written for architects and engineers rather than employers and employees." In [*3] addition, the report quoted the Secretary as stating that the proposed standard "'gleans provisions more directly related to worker safety from the Code and puts those requirements in language workers and employers who aren't electrical engineers can understand.'" Judge Worcester concluded that "it would be difficult for me to find a violation when the Complainant himself has expressed doubt about the validity of his own direct standard." The judge stated that in view of the fact that the Secretary's counsel was placed "in a position he had not anticipated" because the judge had raised, on his own motion, the issue of the validity of a cited standard, that portion of the hearing relating to the alleged violations of 29 C.F.R. 1910.309 would be rescheduled.

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n2 29 C.F.R. 1910.309 requires compliance with specific articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968).

n3 Proposed Rulemaking; Electrical Standards, 44 Fed. Reg. 55274 (September 25, 1979).

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Subsequently, [*4] on November 1, 1979, Judge Worcester issued preliminary findings, conclusions, and an order in which he quoted the statements attributed to the Secretary of Labor by the Occupational Safety and Health Reporter and concluded, on the basis of those statements, that all items alleging violations of 29 C.F.R. 1910.309 should be vacated. In response, on November 27, 1979, the Secretary moved that the judge's preliminary order be issued as a final order. On December 4, 1979, the judge issued a decision in which he granted the Secretary's motion and vacated the items alleging violations of 29 C.F.R. 1910.309 because "this standard is so vague as to be unenforceable." The Secretary petitioned for review of the judge's decision, and the petition was granted by Commissioner Cottine.

In his petition for review the Secretary contends that the judge erred in construing the Secretary of Labor's remarks accompanying the publication of the proposed rulemaking concerning the electrical standard as revoking the present standard by implication. He maintains that the publication of a proposed standard does not affect the applicability of an existing standard. The Secretary asserts that the existing [*5] standard continues to apply until such time as the proposed standard is adopted. The Secretary relies on the Commission decisions in United States Steel Corp., 77 OSAHRC 192/B5, 5 BNA OSHC 2063, 1977-78 CCH OSHD P22,269 (No. 15500, 1977), and United Telephone Co. of the Carolinas, Inc., 76 OSAHRC 110/B14, 4 BNA OSHC 1644, 1976-77 CCH OSHD P21,043 (No. 4210, 1976).

Respondent contends that the National Electrical Code and 29 C.F.R. 1910.309 are unenforceably vague on their face. n4 Respondent claims that the Secretary's plan to reduce the National Electrical Code from 250,000 words to 15,000 words, as described in the Occupational Safety and Health Reporter, supra, is an admission that 94 percent of the standards are irrelevant to worker safety. Respondent also quotes from the supplementary information preceding the proposed rulemaking:

[T]he NEC contains many details which are not directly related to employee safety. . . . since the NEC is an electrical installation design document, it does not generally contain explicit requirements for electrical safety related work practices, . . .

44 Fed. Reg. 55274, 55276 (1979). This language and the statement reportedly [*6] made by the Secretary that worker safety requirements need to be "in language workers and employers who aren't electrical engineers can understand," are, according to Respondent, an admission that the NEC and 29 C.F.R. 1910.309 are unintelligible to the vast majority of those expected to follow them.

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n4 Upon receipt of the judge's decision, the Respondent, on December 6, 1979, filed with the judge a motion to amend its answer. In a letter accompanying the motion, Respondent stated that the judge's decision was issued before Respondent could reply to the Secretary's motion for final judgment. Respondent, noting that the judge's decision had not yet been filed with the Review Commission, urged the judge to withdraw his decision, grant the motion to amend its answer, and reissue the decision. In its original answer, Respondent requested, among other things, that item 1A of citation 1 be vacated. It argued that both the NEC and 29 C.F.R. 1910.309(a) were impermissibly and fatally vague as applied to the facts of this case. In its amended answer, Respondent sought to add the claims that item 1B of citation 1 and item 2 of citation 2 also should be vacated because the NEC and 29 C.F.R. 1910.309(b) were impermissibly and fatally vague as applied to the facts of this case. In addition, Respondent wanted to add, as a defense, the argument that the NEC as well as the standards at 29 C.F.R. 1910.309(a) and (b) are impermissibly and fatally vague on their face. The judge denied Respondent's motion to amend its answer. He held that there was no merit in a motion that sought to amend a pleading nunc pro tunc to conform to a court order wholly favorable to the moving party.

Because of what transpired at the hearing, Respondent expected to be able to present at a future hearing arguments regarding the alleged violations of 29 C.F.R. 1910.309. In addition, the judge failed to afford Respondent the required time in which to respond to the Secretary's motion. The judge issued his decision seven days after the Secretary's motion was filed. See Commission Rules 37 and 4(b), 29 C.F.R. 2200.37, 29 C.F.R. 2200.4(b); Reynolds Metal Co., 79 OSAHRC 4/A2 at A8, n.9, 7 BNA OSHC 1042, 1044 n.9, 1979 CCH OSHD P23,295 at p. 28,179, n.9 (No. 78-2485, 1979). By refusing to consider the merits of Respondent's motion to amend, the judge effectively prevented Respondent from making any argument concerning the alleged violation of 29 C.F.R. 1910.309. Under these circumstances, it is appropriate for us to consider the merits of Respondent's motion to amend its answer.

Respondent's motion to amend was made pursuant to Rule 15 of the Federal Rules of Civil Procedure; specifically, the motion arises under Rule 15(a). In addition to provisions that allow amendment of pleadings within certain time periods as of right, Rule 15(a) also provides for amendment "by leave of court when justice so requires." The Commission has consistently approved the granting of pre-hearing amendments where there is no showing by the party objecting to the amendment that it would be prejudiced in the preparation or presentation of its case. P.A.F. Equipment Company, Inc., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979) aff'd, 637 F.2d 741 (10th Cir. 1980). See also Foman v. Davis, 371 U.S. 178, 182 (1962). Although the amendment was not made before the hearing in this case, the judge indicated at that hearing that another hearing would be scheduled to consider the alleged violations of 29 C.F.R. 1910.309. Respondent relied upon the statements of the judge and expected to file its amended answer before the rescheduled hearing.

In this case, the Secretary would not be prejudiced by our granting of Respondent's motion to amend its answer. We note that the Secretary has not objected to the amendments sought by Respondent. Moreover, our granting leave to amend the answer now will not deprive the Secretary of an opportunity to be fully heard on the defenses Respondent seeks to add by its amendment. Therefore, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure we grant Respondent leave to amend its answer to allege that the NEC and the cited standards are vague on their face and as applied to the facts of this case. See note 5 infra.

[*7]

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In considering whether a standard is unenforceably vague, we first inquire (1) whether the regulation is vague on its face and (2) whether it is vague in light of the conduct to which it is to be applied in a particular case. n5 As long as the standard affords a reasonable warning of what it requires, it is not unenforceably vague. See Deering-Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1103 (5th Cir. 1980); Ryder Truck Lines v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).

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n5 Respondent's answer, as amended, raises both types of vagueness claimsfacial vagueness and vagueness as applied to the facts of this case. The issue of whether the cited standards and the NEC are vague on their face can be resolved by the Commission at this time while the question of their alleged vagueness as applied to the facts of this case must be resolved upon remand by the judge. The "facial vagueness" issue is a question of law which requires no factual record. Our consideration of this issue here does not prejudice the Secretary. The arguments in his petition for review respond to the arguments Respondent raises in its amended answer. Moreover, resolution of this issue now is more efficient in that it will spare the parties the need to argue the issue and the judge the need to decide the case, when this particular issue is easily resolvable here. On the other hand, to consider the issue of vagueness as applied a record is needed in order to develop the facts unique to the claim. Because no record was developed in this case with regard to the vagueness as applied argument, that portion of the case must be remanded to the judge.

[*8]

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The remarks reportedly made by the Secretary of Labor do not constitute a concession that the standard at issue is unenforceably vague. The judge erred in according significant probative value to a media report of the informal remarks of the Secretary of Labor. The media report of the Secretary of Labor's remarks is properly characterized as hearsay. Although we do not exclude it as evidence, see Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979), under the circumstances of this case it should have been accorded no probative value. The Secretary's remarks were only an informal commentary on the proposed standard and do not have the force and effect of law. See FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977) (guidelines in the Secretary of Labor's Field Operations Manual do not have the force and effect of law); Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1979 CCH OSHD P24,002 (No. 15242, 1979). Even if we were to take the Secretary's remarks at face value, they do not [*9] evince a conclusion by the Secretary that the NEC is written so that reasonable men are unable to comprehend it. These remarks merely illustrate the intent of the Secretary to develop standards that state in clear and precise language what employers are expected to do in order to protect their employees.

Respondent claims that in the supplementary information published with the proposed electrical standard the Secretary conceded that the present standard is unenforceably vague on its face. An examination of the language cited by Respondent establishes no concession. Instead it reveals a recognition by the Secretary that the NEC, which deals with all aspects of the utilization of electricity, contains standards and specifications that are not related directly to the safety of employees. In the new standard, the Secretary intends to select "from the NEC [standards that] apply only to electrical utilization systems which are part of the workplace." 44 Fed. Reg. 55274, 55276 (1979). This action does not demonstrate that the excised portions of the NEC are unintelligible or that 94% of the NEC is irrelevant to occupational safety and health. It merely indicates a recognition by [*10] the Secretary that revision of the regulations would make them "easier to use and understand." Id. See also Wisconsin Electrical Power Co. v. OSHRC, 567 F.2d 735, 738 (7th Cir. 1977). This recognition does not mean that the standards are unenforceably vague as written. Respondent has failed to direct us to anything that would indicate that the standards are vague on their face or that they are in any way modified by the publication of the proposed standard, which only displaces the existing standard when it is adopted pursuant to section 6(b) of the Act, 29 U.S.C. 655(b). See United States Steel Corp., supra; United Telephone Co. of the Carolinas, Inc., supra.

Neither the media report nor the language of the supplementary information accompanying the proposed standard support a conclusion that the National Electrical Code or the standards at 29 C.F.R. 1910.309 are facially vague. Accordingly, the judge's disposition of citation 1 and item 2 of citation 2 is reversed and those items are remanded to the judge for proceedings consistent with this opinion.

II

Respondent also was cited for failing to comply with the standard at 29 C.F.R. [*11] 1910.132(a). n6 Item 1 of citation 2 alleged that Respondent failed to equip an employee working with a chemical treating agent with an apron and gloves imporvious to the treating agent as well as with appropriate goggles or a face shield.

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n6 1910.132 General requirements.

(a) Appliction. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

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At the hearing the Secretary introduced into evidence the instructions provided by the treating agent's manufacturer regarding the use of the treating agent. The compliance officer [*12] testified that Respondent's safety director stated that the personal protective equipment specified in the manufacturer's instructions is unnecessary because of the small amount of the treating agent being used. Respondent moved for dismissal on the ground that the Secretary had failed to make out a prima facie case.

Following the hearing, Judge Worcester issued preliminary findings, conclusions and an order in which he found that the testimony of the compliance officer "was based entirely on hearsay and hearsay once removed." He concluded that unless the Secretary made a contrary showing Respondent's motion to dismiss would be granted. In response, on November 26, 1979, the Secretary moved that the judge's order be issued as a final order. Subsequently, on December 4, 1979, the judge granted Respondent's motion to dismiss item 1 of citation 2. He stated in his decision that the item was vacated because the Secretary failed "to introduce reliable, probative, and relevant evidence."

On review the Secretary takes the position that the judge erred in vacating the alleged violation of 29 C.F.R. 1910.132(a). The Secretary argues "that hearsay is admissible in administrative proceedings [*13] and may be used as probative evidence." In addition, he notes that Rule 801 of the Federal Rules of Evidence provides that a statement made by an employee concerning a matter within the scope of his employment and made during the existence of the employment relationship is not hearsay. The Secretary concludes that the compliance officer's testimony as to the statement of Respondent's safety supervisor was admissible regardless of whether the judge characterized it as a hearsay or a nonhearsay admission.

The Secretary is correct in asserting that the testimony and evidence rejected by the judge as "hearsay and hearsay once removed" may be probative evidence. n7 We note initially that under the Federal Rules of Evidence, an admission by a party-opponent or its agent is not hearsay. Fed. R. Evid. 801(d)(2). In any event, it is well established that hearsay is admissible in administrative proceedings and may be used as probative evidence. Richardson v. Perales, 402 U.S. 389 (1971); Hurlock Roofing Co., supra. The weight to be accorded this hearsay, however, depends on its reliability. Hurlock Roofing Co., n8 supra; McCormick, Handbook of the Law of [*14] Evidence, 350 (2d ed. 1972). Nevertheless, the fact that certain evidence may ultimately be accorded little or no weight does not justify the judge's exclusion of the evidence from the record. Accordingly, the judge's vacation of item 1 of citation 2 is reversed and the case is remanded to the judge. On remand, the judge should consider the evidence presented by the Secretary in light of this decision and Commission precedent.

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n7 It is unclear whether the judge's characterization of the testimony and evidence as "hearsay and hearsay once removed" extends to the manufacturer's instructions regarding the chemical treating agent. The Commission has, in cases involving the general duty clause of the Act, 29 U.S.C. 654(a)(1), construed a manufacturer's warning as probative evidence regarding the existence of a recognized hazard. Young Sales Corp., 79 OSAHRC 28/A2, 7 BNA OSHC 1297, 1979 CCH OSHD P23,768 (No. 8184, 1979), aff'd mem., No. 77-1612 (D.C. Cir. April 14, 1980). Acting Chairman Barnako's views on the weight to be assigned to a manufacturer's warning differ from those of his colleagues. Young Sales Corp., supra (dissenting opinion).

n8 While Acting Chairman Barnako agrees that hearsay is admissible in Commission proceedings, he would not make a finding based solely on uncorroborated hearsay. Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979) (concurring opinion).

[*15]

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Accordingly, the judge's decision is vacated, and the case is remanded to the judge for further proceedings consistent with this opinion.

SO ORDERED.