UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 12713
HOERNER WALDORF CORP.,
Respondent.
DECISION
Before Barnako, Chairman; MORAN and CLEARY, Commissioners.
BY THE COMMISSION. A decision of Review Commission Judge Vernon Riehl, dated
September 29, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Having examined the record in its entirety, the Commission finds no abuse of discretion
by the Judge in his rulings regarding complainant’s failure to comply with his pretrial
instructions and concludes that the Judge properly decided the case.
1
Accordingly, the Judge’s decision, which is attached hereto as Appendix A, is hereby
affirmed.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: OCT 21, 1976
CLEARY, Commissioner, DISSENTING:
1
Chairman Barnako does not agree to this attachment.
I dissent. On the facts of this case, I would find that the Judge abused his discretion. The
sanction that he applied for the Secretary of Labor’s failure to comply literally with the pre-
hearing instructions was premature and overly broad.
On June 3, 1975, the Judge, sua sponte, issued pre-hearing instructions to both parties
2
pursuant to Rule 51(a) of the Commission Rules of Procedure. In pertinent part, the instructions
read as follows:
Complainant and Respondent in this proceeding are hereby required to exchange
with each other and submit to the undersigned Judge, at the address indicated in
the letterhead hereof filed by mail no later than 10 days before hearing, the
following:
(1) The names and addresses of the witnesses each proposes to call, together with
an estimate of the total time required for the presentation of their respective
cases.
By letter dated July 3, 1975, respondent meticulously complied with the pre-hearing
order. The Secretary submitted no written response either to the Judge or to respondent.
However, several telephone conversations were conducted between counsel for the Secretary and
respondent. During the conversations, respondent was informed that the compliance officer
would be the only witness except for the rebuttal witnesses.
At the opening of the Secretary’s case at the hearing, respondent objected to the
presentation of any witnesses and moved that the complaint be dismissed and that the citation
and proposed penalties be vacated. As grounds for its motion, respondent claimed that it was
surprised and prejudiced by the Secretary’s failure to comply adequately with the pre-hearing
instruction. It argued that a fair hearing could not be conducted because the Secretary was aware
of the identity of respondent’s witnesses and what documentary evidence would be submitted,
but respondent lacked any information concerning the Secretary’s case.
The Judge sustained respondent’s objection to the presentation of witnesses by the
Secretary finding that. . . it is indeed a prejudice for the respondent to go to the
expense and trouble of complying with an order of the court to exchange
2
29 CFR § 2200.51(a) reads,
At any time before a hearing, the Commission or the Judge, on their own motion
or on motion of a party, may direct the parties or their representatives to exchange
information or to participate in a prehearing conference for the purpose of
considering matters which will tend to simplify the issues or expedite the
proceedings.
information and for the Government to hold back until the last minute and then
zap the respondent on the head with surprise testimony.
The Judge then granted respondent’s motion to dismiss for lack of proof.
It is certainly within a Judge’s discretion to sanction a failure to comply with a pre-
3
hearing instruction by the exclusion of witnesses. I submit, however, that the sanction was
applied prematurely in this case. There was no surprise to respondent with regard to the calling
of the compliance officer to testify. Respondent had been informed that the compliance officer
would be a witness. At the specific point in time when the compliance officer was rejected as a
witness, the only failure of the Secretary with respect to responding to the pre-hearing instruction
was a nominal failure to set down the content of the phone conversations in writing. The contents
of the testimony of witnesses was not mentioned by the pre-hearing instruction . I, therefore, find
no prejudice would ensue to respondent by allowing the compliance officer to testify.
Under the circumstances, I would find that the Judge should have allowed testimony by
the compliance officer. Following that testimony, issues relating to whether the pre-trial
instructions were adequately followed may have been raised.
In dissenting, I am also mindful that ‘serious’ violations of 29 CFR § 1910.178 are
alleged in this case. By definition, ‘serious’ violations involve hazards that could probably cause
serious physical harm or death to exposed employees. 29 U.S.C. § 666(j).
Although interference with the presiding officer’s discretion in a case of this kind should
be kept to a minimum, we have an overriding responsibility to see that justice is done and that
the remedial statutory purpose is not easily frustrated. Cf. Padovani v. Bruchausen, 293 F.2d 546,
547–48 (2d Cir. 1961).
3
Cf. Matheny v. Forter, 158 F.2d 478 (10th Cir. 1948), applying Rule 16 of the Federal Rules of
Civil Procedure. Although Federal rule 16 involves a much more formalized order than is
involved in this case, the purposes of Federal rule 16 and Commission rule 51 are, however,
essentially identical. See also 5 U.S.C. section 556.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 12713
HOERNER WALDORF CORP.,
Respondent.
*1 APPEARANCES:
JAMES M. CLEETON, Esquire, United States Department
of Labor, Office of the Solicitor, Kansas City,
Missouri
for the Complainant
KENNETH L. SOVEREIGN, Esquire, Senior Attorney and
Vice President, Hoerner Waldorf Corporation,
St. Paul, Minnesota
for the Respondent
STATEMENT OF CASE
Vernon Riehl, Judge, OSAHRC
This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of
1970 contesting a citation issued by the complainant against the respondent under the authority
vested in the complainant by section 9(a) of that Act. The citation alleges that an inspection of a
workplace under the ownership, operation and control of the respondent revealed the existence of
workplace conditions that violate section 5(a)(2) of the Act for the reason that these conditions
fail to comply with certain occupational safety and health standards promulgated by the
Secretary of Labor pursuant to section 6 thereof.
The citation alleges that the violation results from a failure to comply with standards
promulgated by publication in the Federal Register.
A description of the alleged violations contained in said citation states:
Citation for Serious Violation
Item 1a, 29 CFR 1910.178(p)(1)
The following powered industrial trucks operating in the plant had defective
equipment and were not taken out of service for repair:
1) Clark truck #5, brakes were not effective enough to stop the truck
within a reasonable distance
2) Clark truck #4, did not have an operable horn.
Item 1b, 29 CFR 1910.178(q)(7)
Operators of powered industrial trucks were not properly trained to inspect their
assigned truck daily or at the start of the shift to determine if the vehicle had any
defects that would adversely affect its safe operation.
On our own motion, on June 3, 1975, we forwarded ‘PRE-HEARING INSTRUCTIONS’
to both parties requiring them to exchange with each other, and submit to us by mail no later than
ten days before the hearing, the following:
‘Complainant and Respondent in this proceeding are hereby required to exchange
with each other and submit to the undersigned Judge, at the address indicated in
the letterhead hereof filed by mail no later than 10 days before hearing, the
following:
1) The names and addresses of the witnesses each proposes to call,
together with an estimate of the total time required for the presentation of
their respective cases.
2) A complete list of (a) documents and (b) photographs and other forms
of demonstrative evidence which each proposes to offer in evidence
together with copies of all documents and, where feasible, copies of
photographs or other forms of demonstrative evidence. Counsel are
directed, where such evidence is not reasonably susceptible of copying
and exchange in advance of hearing, to permit examination of such items
by opposing counsel immediately before trial. No copies of documents or
photos are required to be submitted in advance of the hearing to the Judge.
The parties are advised that failure to comply with the requirement set
forth above may, in the absence of a convincing showing of good cause,
be considered grounds for dismissal, orders of exclusion, or such other
orders as may appear appropriate.
Complainant and Respondent are urged to communicate with each other prior to
the hearing and as soon after receipt of these instructions as possible in order to
arrive at admissions or stipulations concerning facts and documents as to which
there can be no reasonable dispute. Such parties should be prepared at the
commencement of the hearing to present such admissions or stipulations. The
parties are urged to reduce the same to writing in order to minimize potential
ambiguities.
Facts or matters which would be considered for stipulation (unless clearly
inapplicable in this case or clearly acknowledged or confessed in the pleadings)
should include, but not be limited to, the following:
1. The legal name of the Respondent or Petitioner, and if appropriate, the
state of incorporation and the location of its principal office.
2. Facts which indicate whether or not the Respondent or Petitioner was
engaged in a business affecting commerce at the time of the alleged
violation.
3. The fact of employment by the Respondent of any person injured at the
time and place of the alleged violation.
4. The ownership or control by Respondent of any equipment or
machinery, the use of which is referred to in the Citation.
5. The average daily number of employees of the Respondent during the
current or most recent calendar year.
6. The history, if any, of previous violations by the Respondent of any law
or regulation affecting the safety and health of employees.
7. When and where the Respondent posted the Citation and/or posted or
served by mail or personal delivery the notice of hearing and any other
notices, orders or documents for the benefit of affected employees or their
representatives.
8. The scope of authority of any witness who is an officer or employee of
the Respondent.
9. The authenticity of any document or writing which a party proposes to
offer at the hearing.
10. The validity and reliability of any statement in any document proposed
to be offered in evidence, including but not limited to figures,
computations, percentages, and projections.
11. Any other fact or matter not in dispute which may aid the Review
Commission Judge in the expeditious disposition of this proceeding.’
This was done for the purpose of all sides considering matters which would tend to
simplify the issues and expedite the proceedings.
On July 3, 1975, the respondent fully complied with this order and submitted a list of
witnesses and documents to be offered in evidence. He also made certain stipulations affecting
jurisdiction among other things.
The complainant did not submit such a list up to and including the date of hearing.
Kenneth L. Sovereign, Vice President and Senior Attorney for the respondent, sent the
following letter, dated July 3, 1975, to James M. Cleeton, Solicitor for the Department of Labor.
‘Dear Mr. Cleeton:
Enclosed herewith is the information requested by the Pre-hearing Instructions of
Judge Riehl. Inasmuch as I did not hear from you, as you had proposed in our
telephone conversation of June 27, I had no other alternative but to comply with
the Pre-Hearing Instructions without further consultation with you. It is regretable
that we were not able to comply more fully with Judge Riehl’s Pre-Hearing
Instructions.
Sincerely yours,
HOERNER WALDORF CORPORATION
Kenneth L. Sovereign
Vice President & Senior Attorney’
The hearing was held on August 27, 1975, in Des Moines, Iowa.
On the date of the hearing, the Solicitor for the Department of Labor announced ready
and offered as his first witness Samuel Zier.
Respondent’s attorney, Mr. Sovereign, objected to the presenting of any witnesses in the
trial and moved that the complaint be dismissed and the citation and proposed penalty be vacated
(T. 3).
As grounds for his motion, Mr. Sovereign stated that the prehearing instructions, dated
June 3, 1975, sent by this court to the Secretary’s office, had not been complied with. He stated
that the complainant by not having answered prejudiced respondent in its hearing and that a fair
and just hearing could not be held.
Mr. Sovereign stated that he had complied with the order and gone to the expense of
bringing witnesses with him who had salaries ranging from about 50 to 100 dollars per day plus
whatever expenses they incurred from the out of town witnesses.
Mr. Sovereign, on behalf of respondent, claimed surprise. He stated the Government
knew who his witnesses were going to be: they knew also what records, evidence and exhibits he
was going to submit. He further stated the Government had a wonderful opportunity to prove its
case and that respondent knew nothing until the time he arrived at the hearing (T. 6). He
indicated that he was in the dark as to what was going to happen.
Respondent stated that he understood that the pre-hearing instructions were for the
purpose of eliminating the element of surprise. Also, they are for the purpose of having a trial
move in an efficient manner and that it was very possible that instead of the trial lasting a half
day or a day, it could last two days because of the lack of information as requested by this court.
He also stated that he thought it was unfair and that it prejudiced the respondent’s position to
continue the trial.
Mr. Cleeton stated that he had several telephone conversations in which he told him Mr.
Zier would be there as his only witness except for rebuttal witnesses. We pointed out to Mr.
Cleeton that when the Solicitor’s office does not furnish the material in writing as suggested by
the court order, so as to facilitate the handling of a case and eliminate the element of surprise,
that it was an inequitable arrangement to have in this case or in future cases (T. 7).
Mr. Cleeton agreed that such orders should be complied with but felt there was no
prejudice in the case.
We disagree with this conclusion and feel that it is indeed a prejudice for the respondent
to go to the expense and trouble of complying with an order of the court to exchange information
and for the Government to hold back until the last minute and then zap the respondent on the
head with surprise testimony.
The Solicitor indicated there was no typing problem in his office or any legitimate reason
why he could not have complied with the order of the court. He also agreed that the respondent
also had a lot of business to handle but had arranged to be present and had done everything that
they should have done to comply with the court’s order to exchange information (T. 8).
Whereupon, we considered the matter and concluded that the respondent had indeed been
prejudiced by being left in the dark until the complainant put on his evidence; that such a
condition is inequitable and unfair to this respondent and other respondents in like cases. We
accordingly rejected the Solicitor’s witness.
The Solicitor announced that he had nothing further nor did he offer any further
witnesses.
Respondent then moved that the case be dismissed inasmuch as the Government had
failed to show that the elements necessary for a serious violation were present. We sustained this
motion and the citation and penalties are accordingly vacated.
FINDINGS OF FACT
1. The Department of Labor has failed to comply with an order of this court to exchange
information in the interest of expediting the case and of conducting a fair trial.
2. There was no evidence of record sustaining the Department of Labor’s citation and
penalty.
CONCLUSIONS OF LAW
The failure of the Secretary of Labor to comply with the court’s motion to exchange
information, according to rule 51, surprised and prejudiced the respondent’s ability to conduct a
defense.
DECISION
The citation and the proposed penalties are vacated.
Vernon Riehl
Judge, OSAHRC