“Docket No. 81-2617 SECRETARY OF LABOR, Complainant,v.COLLINS WELL SERVICE COMPANY, Respondent.OSHRC Docket No. 81-2617DECISIONBefore:\u00a0 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 under 29 U.S.C. ?661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency, independentof the Department of Labor and the Occupational Safety and Health Administration.\u00a0 Itwas established to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions.\u00a0 See section 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\”) violatedsection 5(a)(1) [[1]] of the Act by allowing its employees to ride the elevator on an oilderrick without wearing tied-off safety belts.The only witness who testified at the hearing was the compliance officer fromthe Occupational Safety and Health Administration who investigated an accident in which aCollins employee suffered a fatal fall.\u00a0 The compliance officer testified that he wastold by Gary Whiteside, an employee of Collins, that Whiteside had observed the deceasedemployee riding the elevator without wearing a safety belt.\u00a0 The compliance officertestified that it was apparently a common practice among Collins’ employees to ride theelevators without wearing a tied-off safety belt and that he received this informationfrom Whiteside.\u00a0 A written statement signed by Whiteside, introduced into evidence bythe Secretary, said that employees on occasion rode the elevators without safety belts.Whiteside had worked for Collins for one month.\u00a0 The compliance officer alsotestified that he had spoken with Nathan Brown, Collins’ safety director, during theinspection.\u00a0 On cross-examination the following testimony was elicited from thecompliance officer:Q. In your talking with the people at the site or at the company, as a matterof fact Mr. Brown told you that there was indeed a safety belt on the 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 allow what happened thatcaused 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 company safety policy?A. He didn’t have a safety policy as I remember.\u00a0 He was in the process of writingone.Judge Child concluded that riding the elevator without wearing a tied-off safety belt wasa recognized hazard in the oil well servicing industry based on the American PetroleumInstitute’s (\”API\”) RP 54: \”Recommended Practices for Occupational Safetyand Health for Oil and Gas Well Drilling and Servicing Operations,\” an exhibit in thecase.\u00a0 Moreover, he determined that the hazard was likely to cause serious physicalharm or death and that Collins could have abated the hazard by establishing and enforcinga work rule that requires employees riding the elevator to wear a tied-off safety belt orby requiring employees to ascend the derrick by way of the ladder attached to it using aclimbing assist.\u00a0 The judge ruled that Collins had knowledge of the allegedlyviolative conduct and the employee’s riding of the elevator without a tied-off safety beltwas foreseeable and not unpreventable employee misconduct.\u00a0 He therefore ruled thatthere was a violation of section 5(a)(1) and assessed a penalty of $480.Commissioner Cleary would adopt the judge’s decision and thus affirm thecitation.\u00a0 He agrees that riding the elevator without wearing a tied-off safety beltis a recognized hazard in the oil well servicing industry and is likely to cause death orserious physical harm.\u00a0 In his opinion, this case concerns whether Collins tookadequate steps to prevent such conduct by implementing an adequate safety program. \u00a0See General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453 (1st Cir.1979).Commissioner Cleary notes that, with respect to the compliance officer’sreference to what Whiteside told him, hearsay evidence is admissible in Commissionproceedings and can be used as probative evidence, while the weight assigned to it dependson its reliability.\u00a0 Power Systems Division, United Technologies Corp., 81 OSAHRC40\/C13, 9 BNA OSHC 1813, 1981 CCH OSHD ? 25,350 (No. 79-1552, 1981).\u00a0 CommissionerCleary concludes that, in this case, there is no reason to doubt the truth of thestatement Whiteside made to the compliance officer or that the compliance officeraccurately related the statement in his testimony. The judge determined that thecompliance officer was credible, and Whiteside had no ostensible reason to lie to thecompliance officer.\u00a0 Commissioner Cleary also notes that Collins had everyopportunity to call witnesses in its behalf but chose not to do so.\u00a0 See AstraPharmaceutical Products, Inc. v. OSHRC, 681 F.2d 69 (1st Cir. 1982) (less evidence neededwhen unrebutted by opponent with full possession of the facts than in a case where thereis contrary evidence).Concerning the compliance officer’s statement that Brown had told him thatCollins did not have a safety program, Commissioner Cleary determines that it is nothearsay and is admissible under Rule 801(d)(2)(D) of the Federal Rules of Evidence. \u00a0Brown was Collins’ safety director, so his statement was within the scope of hisagency.\u00a0 Commissioner Cleary concludes that the judge was justified in relying onthis unrebutted evidence.Chairman Buckley would reverse the judge and vacate the citation.\u00a0 Heagrees with the judge that riding the elevator without a safety belt is a recognizedhazard in view of the evidence of the API’s recommended practice RP 54.\u00a0 This case isthus distinguishable from H-30, Inc. v. Marshall, 597 F.2d 234 (10th Cir. 1979), in whichthe Tenth Circuit vacated a similar citation for lack of evidence of industry recognitionof the alleged hazard.\u00a0 Chairman Buckley also agrees that the hazard is likely tocause serious physical harm or death.\u00a0 However, he concludes that the Secretary’sevidence was otherwise insufficient to make a prima facie showing of a violation.\u00a0 Inaddition to establishing that an alleged hazard is likely to cause death or seriousphysical harm and is recognized to be a hazard, the Secretary has the burden of producingevidence that the cited employer’s safety practices failed to free the workplace of thehazard to the extent an accident was preventable.\u00a0 See, e.g., Baroid Division of NLIndustries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); National Realty and ConstructionCo. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Thus, in this case, the Secretary would haveto prove that Collins did not have an effectively implemented work rule requiring itsemployees to use tied-off safety belts while riding the elevator of an oil derrick. \u00a0In Chairman Buckley’s view, the Secretary failed to demonstrate this.The compliance officer had no personal knowledge of Collins’ safety program,but testified only as to what he was told by one of Collins’ supervisors, the safetydirector, and by one of its employees, the crew member working at the well site.\u00a0 Thecompliance officer’s account of his conversations with these two individuals establishesthat Collins provided safety belts to its workers at this site.\u00a0 According to thecompliance officer, he was told that a safety belt was maintained on the platform. \u00a0He did not or could not testify whether other belts were provided or available. \u00a0 Thecompliance officer did testify that industry custom was to have other safety belts at thisworksite in addition to that on the platform.\u00a0 No evidence was introduced evensuggesting that Collins deviated from industry practice.[[2]]Nor did the Secretary prove that Collins did not have and enforce a workrule requiringemployees to wear a safety belt while riding the elevator or that the safety director orany Collins supervisor was aware of any failure of employees to use safety belts whileriding the elevator.\u00a0 See, e.g., National Realty, 489 F.2d at 1267, n. 40 (Secretaryhas burden of proving allegation that employer failed to issue appropriate instructions).\u00a0 The compliance officer testified that, as he recalled, there was no safety programand that one was being written.\u00a0 But the compliance officer did not specify whetherthe safety director told him this, and the testimony indicates that he was unsure of hismemory.\u00a0 Moreover, the testimony is vague.\u00a0 The compliance officer said therewas no program, but seems to have meant that there was no written program.\u00a0 He didnot specify that there was no rule in existence at all, such as one communicated orally tothe employees, and the Secretary introduced no evidence indicating the value of writteninstructions relative to oral instructions.\u00a0 Id.In contrast to the testimony on which the Secretary relied, the complianceofficer testified that Collins had monthly safety meetings, posters, and safety manualsand rated the safety program as average.\u00a0 Although one safety manual did not includea rule about safety belts on the elevators, the compliance officer did not know if such arule was included in a second safety manual, the Associated Oil Servicing Contractors’Safety Manual, which he acknowledged was provided to employees.\u00a0 The complianceofficer never reviewed this manual.\u00a0 Finally, the compliance officer’s testimony asto what employee Whiteside told him and the written statement signed by Whitesideindicates that employees on \”occasion\” rode elevators of derricks without safetybelts, but there was no testimony showing the frequency of these occurrences or thatCollins permitted, condoned, or was even aware of the practice.These gaps in the record could have been cured by the testimony of someonefamiliar with Collins’ practices.\u00a0 The record is devoid of such testimony. \u00a0\”Having the burden of proof, the Secretary must be charged with these evidentiarydeficiencies.\” National Realty, 489 F.2d at 1267.\u00a0 The Secretary failed toestablish in this case that Collins did not have a work rule prohibiting the riding ofelevators without a safety 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 his disposition inthis case.[[4]]\u00a0 To resolve this impasse and to permit this case to proceed to afinal resolution, the members have agreed to affirm the judge’s decision but accord it theprecedential value of an unreviewed judge’s decision.\u00a0 See Life Science Products Co.,77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910, 1977), aff’d subnom.\u00a0 Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARY DATED:\u00a0 OCT 19 1984The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 employment and aplace of employment which are free from recognized hazards that are causing or are likelyto cause death or serious physical harm to his employees.[[2]] Contrary to Collins’ claim, the compliance officer’s testimony regarding what safetydirector Brown told him was not hearsay. Rule 801(d)(2)(D) of the Federal Rules ofEvidence excludes from the category of hearsay \”a statement by his [aparty-opponent’s] agent or servant concerning a matter within the scope of his agency oremployment, made during 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 on other grounds, 597 F.2d 234 (10thCir. 1979). The most that can be gleaned from the compliance officer’s testimonyconcerning the number of safety belts is that he was not told by the safety director thatthere were other belts on the worksite.\u00a0 However, the compliance officer did notclarify whether he actually asked the safety director about this or whether he learnedfrom the safety director that there were not any other belts.\u00a0 Thus, the only recordevidence establishes that at least one safety belt was provided and that probably otherswere provided as well.[[3]] Respondent objects to the testimony of Whiteside as hearsay. \u00a0Chairman Buckley would agree that the employee’s statements were hearsay since thesestatements do not qualify as admissions of a party under Fed. R. Evid. 801(d)(2)(D).\u00a0 The characterization of evidence as hearsay or non-hearsay is not the soledeterminant of admissibility.\u00a0 Hearsay is admissible and may be given weight inadministrative proceedings provided there is some indicia of reliability.\u00a0 Under Rule801(d)(2)(D) the statements of an agent within the scope of employment are deemed to havethe requisite degree of reliability, since the statement is made against interest. \u00a0In the OSHA context, however, an employee statement made about the employer’s worksite isnot made against interest.\u00a0 Indeed, in proceedings before the Commission theinterests of the employee ostensibly are represented by the Secretary with the employer asadversary.\u00a0 See sections 8(a), (e), and (f) of the Act, 29 U.S.C. ?? 657(a), (e),and (f) (inspections and the opportunity for employees to consult with and advise theSecretary about matters of safety and health in the workplace); section 9(a) of the Act,29 U.S.C. ? 658(a) (citations).\u00a0 The adversary proceedings under the Act cannot bepresumed to sufficiently provide the \”guarantee of trustworthiness\” for thestatements of employees that can be presumed to exist in the usual civil proceedings withwhich the Federal Rules of Evidence are concerned.\u00a0 See Fed. R. Evid 801 advisorycommittee note.\u00a0 Thus, the statements in this case by employee Whiteside arehearsay.\u00a0 Cf. United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979)(statements not a product of the adversary process).\u00a0 The judge did not err, however,in admitting this evidence.\u00a0 The evidence simply does not establish a violation.[[4]] As established by the Act, the Commission is composed of three members.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Under section 12(f) of the Act, 29 U.S.C.? 661(e), official action can be taken by the Commission with the affirmative vote of atleast two members.\u00a0 Because of a vacancy, the Commission is currently composed of twomembers.”