“SECRETARY OF LABOR,Complainant,v.COLLINS WELL SERVICE COMPANY,Respondent.OSHRC Docket No. 81-2617_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionpursuant to former Chairman Rowland’s direction for review issued under29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).At issue in this case is whether Administrative Law Judge Ramon M. Childerred in concluding that Collins Well Service Company (\”Collins\”)violated section 5(a)(1) [[1]] of the Act by allowing its employees toride the elevator on an oil derrick without wearing tied-off safety belts.The only witness who testified at the hearing was the compliance officerfrom the Occupational Safety and Health Administration who investigatedan accident in which a Collins employee suffered a fatal fall. Thecompliance officer testified that he was told by Gary Whiteside, anemployee of Collins, that Whiteside had observed the deceased employeeriding the elevator without wearing a safety belt. The complianceofficer testified that it was apparently a common practice amongCollins’ employees to ride the elevators without wearing a tied-offsafety belt and that he received this information from Whiteside. Awritten statement signed by Whiteside, introduced into evidence by theSecretary, said that employees on occasion rode the elevators withoutsafety belts. Whiteside had worked for Collins for one month. Thecompliance officer also testified that he had spoken with Nathan Brown,Collins’ safety director, during the inspection. On cross-examinationthe following testimony was elicited from the compliance officer:Q. In your talking with the people at the site or at the company, as amatter of fact Mr. Brown told you that there was indeed a safety belt onthe rig, was there not?A. Yes, there was a safety belt.Q. He also told you that it was the company safety policy not to allowwhat happened that caused the accident, riding the blocks unprotected?A. (No response.)Q. Is that correct?A. He didn’t say that to me. I don’t recall that he said that.Q. You didn’t cover whether or not this was a violation of companysafety policy?A. He didn’t have a safety policy as I remember. He was in the processof writing one.Judge Child concluded that riding the elevator without wearing atied-off safety belt was a recognized hazard in the oil well servicingindustry based on the American Petroleum Institute’s (\”API\”) RP 54:\”Recommended Practices for Occupational Safety and Health for Oil andGas Well Drilling and Servicing Operations,\” an exhibit in the case. Moreover, he determined that the hazard was likely to cause seriousphysical harm or death and that Collins could have abated the hazard byestablishing and enforcing a work rule that requires employees ridingthe elevator to wear a tied-off safety belt or by requiring employees toascend the derrick by way of the ladder attached to it using a climbingassist. The judge ruled that Collins had knowledge of the allegedlyviolative conduct and the employee’s riding of the elevator without atied-off safety belt was foreseeable and not unpreventable employeemisconduct. He therefore ruled that there was a violation of section5(a)(1) and assessed a penalty of $480.Commissioner Cleary would adopt the judge’s decision and thus affirm thecitation. He agrees that riding the elevator without wearing a tied-offsafety belt is a recognized hazard in the oil well servicing industryand is likely to cause death or serious physical harm. In his opinion,this case concerns whether Collins took adequate steps to prevent suchconduct by implementing an adequate safety program. See GeneralDynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453 (1stCir. 1979).Commissioner Cleary notes that, with respect to the compliance officer’sreference to what Whiteside told him, hearsay evidence is admissible inCommission proceedings and can be used as probative evidence, while theweight assigned to it depends on its reliability. Power SystemsDivision, United Technologies Corp., 81 OSAHRC 40\/C13, 9 BNA OSHC 1813,1981 CCH OSHD ? 25,350 (No. 79-1552, 1981). Commissioner Clearyconcludes that, in this case, there is no reason to doubt the truth ofthe statement Whiteside made to the compliance officer or that thecompliance officer accurately related the statement in his testimony.The judge determined that the compliance officer was credible, andWhiteside had no ostensible reason to lie to the compliance officer. Commissioner Cleary also notes that Collins had every opportunity tocall witnesses in its behalf but chose not to do so. See AstraPharmaceutical Products, Inc. v. OSHRC, 681 F.2d 69 (1st Cir. 1982)(less evidence needed when unrebutted by opponent with full possessionof the facts than in a case where there is contrary evidence).Concerning the compliance officer’s statement that Brown had told himthat Collins did not have a safety program, Commissioner Clearydetermines that it is not hearsay and is admissible under Rule801(d)(2)(D) of the Federal Rules of Evidence. Brown was Collins’safety director, so his statement was within the scope of his agency. Commissioner Cleary concludes that the judge was justified in relying onthis unrebutted evidence.Chairman Buckley would reverse the judge and vacate the citation. Heagrees with the judge that riding the elevator without a safety belt isa recognized hazard in view of the evidence of the API’s recommendedpractice RP 54. This case is thus distinguishable from H-30, Inc. v.Marshall, 597 F.2d 234 (10th Cir. 1979), in which the Tenth Circuitvacated a similar citation for lack of evidence of industry recognitionof the alleged hazard. Chairman Buckley also agrees that the hazard islikely to cause serious physical harm or death. However, he concludesthat the Secretary’s evidence was otherwise insufficient to make a primafacie showing of a violation. In addition to establishing that analleged hazard is likely to cause death or serious physical harm and isrecognized to be a hazard, the Secretary has the burden of producingevidence that the cited employer’s safety practices failed to free theworkplace of the hazard to the extent an accident was preventable. See,e.g., Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439(10th Cir. 1981); National Realty and Construction Co. v. OSHRC, 489F.2d 1257 (D.C. Cir. 1973). Thus, in this case, the Secretary would haveto prove that Collins did not have an effectively implemented work rulerequiring its employees to use tied-off safety belts while riding theelevator of an oil derrick. In Chairman Buckley’s view, the Secretaryfailed to demonstrate this.The compliance officer had no personal knowledge of Collins’ safetyprogram, but testified only as to what he was told by one of Collins’supervisors, the safety director, and by one of its employees, the crewmember working at the well site. The compliance officer’s account ofhis conversations with these two individuals establishes that Collinsprovided safety belts to its workers at this site. According to thecompliance officer, he was told that a safety belt was maintained on theplatform. He did not or could not testify whether other belts wereprovided or available. The compliance officer did testify thatindustry custom was to have other safety belts at this worksite inaddition to that on the platform. No evidence was introduced evensuggesting that Collins deviated from industry practice.[[2]]Nor did the Secretary prove that Collins did not have and enforce aworkrule requiring employees to wear a safety belt while riding theelevator or that the safety director or any Collins supervisor was awareof any failure of employees to use safety belts while riding theelevator. See, e.g., National Realty, 489 F.2d at 1267, n. 40(Secretary has burden of proving allegation that employer failed toissue appropriate instructions). The compliance officer testifiedthat, as he recalled, there was no safety program and that one was beingwritten. But the compliance officer did not specify whether the safetydirector told him this, and the testimony indicates that he was unsureof his memory. Moreover, the testimony is vague. The complianceofficer said there was no program, but seems to have meant that therewas no written program. He did not specify that there was no rule inexistence at all, such as one communicated orally to the employees, andthe Secretary introduced no evidence indicating the value of writteninstructions relative to oral instructions. Id.In contrast to the testimony on which the Secretary relied, thecompliance officer testified that Collins had monthly safety meetings,posters, and safety manuals and rated the safety program as average. Although one safety manual did not include a rule about safety belts onthe elevators, the compliance officer did not know if such a rule wasincluded in a second safety manual, the Associated Oil ServicingContractors’ Safety Manual, which he acknowledged was provided toemployees. The compliance officer never reviewed this manual. Finally,the compliance officer’s testimony as to what employee Whiteside toldhim and the written statement signed by Whiteside indicates thatemployees on \”occasion\” rode elevators of derricks without safety belts,but there was no testimony showing the frequency of these occurrences orthat Collins permitted, condoned, or was even aware of the practice.These gaps in the record could have been cured by the testimony ofsomeone familiar with Collins’ practices. The record is devoid of suchtestimony. \”Having the burden of proof, the Secretary must be chargedwith these evidentiary deficiencies.\” National Realty, 489 F.2d at1267. The Secretary failed to establish in this case that Collins didnot have a work rule prohibiting the riding of elevators without asafety belt and thus did not prove that Collins failed to free itsworkplace of a recognized hazard.[[3]]The two Commission members are divided on whether the judge erred in hisdisposition in this case.[[4]] To resolve this impasse and to permitthis case to proceed to a final resolution, the members have agreed toaffirm the judge’s decision but accord it the precedential value of anunreviewed judge’s decision. See Life Science Products Co., 77 OSAHRC200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910, 1977),aff’d sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 19 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 5(a)(1) provides:Each employer . . . shall furnish to each of his employees employmentand a place of employment which are free from recognized hazards thatare causing or are likely to cause death or serious physical harm to hisemployees.[[2]] Contrary to Collins’ claim, the compliance officer’s testimonyregarding what safety director Brown told him was not hearsay. Rule801(d)(2)(D) of the Federal Rules of Evidence excludes from the categoryof hearsay \”a statement by his [a party-opponent’s] agent or servantconcerning a matter within the scope of his agency or employment, madeduring the existence of the relationship.\” E.g., Power SystemsDivision,United Technologies Corp., supra; H-30, Inc., 77 OSAHRC 156\/A2,5 BNA OSHC 1715, 1977-78 CCH OSHD ? 22,050 (No. 76-752, 1977), rev’d onother grounds, 597 F.2d 234 (10th Cir. 1979). The most that can begleaned from the compliance officer’s testimony concerning the number ofsafety belts is that he was not told by the safety director that therewere other belts on the worksite. However, the compliance officer didnot clarify whether he actually asked the safety director about this orwhether he learned from the safety director that there were not anyother belts. Thus, the only record evidence establishes that at leastone safety belt was provided and that probably others were provided as well.[[3]] Respondent objects to the testimony of Whiteside as hearsay. Chairman Buckley would agree that the employee’s statements were hearsaysince these statements do not qualify as admissions of a party underFed. R. Evid. 801(d)(2)(D). The characterization of evidence ashearsay or non-hearsay is not the sole determinant of admissibility. Hearsay is admissible and may be given weight in administrativeproceedings provided there is some indicia of reliability. Under Rule801(d)(2)(D) the statements of an agent within the scope of employmentare deemed to have the requisite degree of reliability, since thestatement is made against interest. In the OSHA context, however, anemployee statement made about the employer’s worksite is not madeagainst interest. Indeed, in proceedings before the Commission theinterests of the employee ostensibly are represented by the Secretarywith the employer as adversary. See sections 8(a), (e), and (f) of theAct, 29 U.S.C. ?? 657(a), (e), and (f) (inspections and the opportunityfor employees to consult with and advise the Secretary about matters ofsafety and health in the workplace); section 9(a) of the Act, 29 U.S.C.? 658(a) (citations). The adversary proceedings under the Act cannot bepresumed to sufficiently provide the \”guarantee of trustworthiness\” forthe statements of employees that can be presumed to exist in the usualcivil proceedings with which the Federal Rules of Evidence areconcerned. See Fed. R. Evid 801 advisory committee note. Thus, thestatements in this case by employee Whiteside are hearsay. Cf. UnitedStates v. Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979) (statements nota product of the adversary process). The judge did not err, however, inadmitting this evidence. The evidence simply does not establish aviolation.[[4]] As established by the Act, the Commission is composed of threemembers. Section 12(a), 29 U.S.C. ? 661(a). Under section 12(f) ofthe Act, 29 U.S.C. ? 661(e), official action can be taken by theCommission with the affirmative vote of at least two members. Becauseof a vacancy, the Commission is currently composed of two members.”