“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77-1300 HAMILTON FOUNDRY DIVISION, HAMILTON ALLIED CORPORATION, ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 30, 1978DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.CLEARY, Chairman:??????????? Thiscase is before us pursuant to the Occupational Safety and Health Act of 1970,29 U.S.C. ? 651 et seq. (1970). The issue here is whether Judge Allan M.Wienman erred by granting respondent?s post hearing motion to dismiss, withprejudice, a citation alleging noncompliance with 29 CFR ? 1910.215(a)(4)[1] because of omissions inthe transcript of the hearing. We hold that he did; consequently we reverse andremand for further proceedings not inconsistent with this opinion.??????????? Respondentfiled with the Judge separate post hearing motions dated October 6, 1977. Inits Motion to Correct or Amend the Transcript respondent moved to correct thetranscript to make it comport with what it asserted to be actual testimony. Thecorrections sought were basically minor transcription errors. This motionincluded, however, reference to two portions of the transcript with gaps intestimony.[2] No corrected version ofthe transcript was suggested for these omissions. Rather, by its separateMotion to Dismiss or in the Alternative, for Mistrial respondent asserted thatbecause of their breadth,[3] correction of these twoomissions was impossible. Respondent argued that dismissal was appropriatebecause the transcript was not ?verbatim? as required by Commission Rule 65, 29CFR ? 2200.65. It asserted further that, due to the omissions, review by theCommission and courts ?would be affected.? Respondent does not elaborate.??????????? Ingranting the motion to dismiss the Judge held that because of the addedexpenditure of time and money required for retaking the omitted testimony,respondent?s good faith, and the fact that the hazard had been abated, amongother things, termination of the proceedings by granting respondent?s motion todismiss was proper. He did not rule on the separate motion to correct thetranscript.??????????? TheJudge relied upon Sullivan Brothers and Lent, Inc., ___ OSAHRC ___, 1BNA OSHC 3144, 1971?73 CCH OSHD para. 15,085 (No. 204, 1972) (unreviewedJudge?s decision),[4]in which an Administrative Law Judge granted an employer?s motion to dismiss acitation where the first 20 minutes of testimony went unrecorded through nofault of either party. That Judge determined that reconstruction of the omittedtestimony was not possible and that only a rehearing could cure the deficiency.He determined that, in lieu of a rehearing, dismissal was appropriate.[5]??????????? Turningto consideration of the omissions, we note that transcript deficiencies are notgrounds for exception absent a claim that they adversely affect movant?s case. ColumbiaTransportation Company v. United States, 167 F. Supp. 5, 11 (E.D. Mich.1958). Materiality is the key. Cf. Kinock Jan Fat v. United States, 253U.S. 454 (1920). (Errors, without more, are not fatal even in a criminal case.)See United States v. Perkins, 498 F.2d 1054, 1057?58 (D.C. Cir. 1974).??????????? Insum, a showing of materiality of the missing testimony is essential to a claimthat a party?s ability to present its case to a reviewing tribunal has beenimpaired by transcript errors. Columbia Transportation Company v. UnitedStates, supra; see 9 Moore?s Federal Practice ?210.06[3] at 1630?31. Inthe instant case respondent has not argued that the omissions are material. Heargues only that review would be ?affected.? This is not enough. The fact thattranscription omissions occurred does not, by itself, provide a proper basisfor a viable exception to a decision on the merits.??????????? Respondent?sreliance upon Commission Rule 65, 29 CFR 2200.65, is similarly unpersuasive.Generally, failure to comply with a procedural rule, absent prejudice, isharmless error. See Schiavone Construction Company, 77 OSAHRC 78\/A2, 5BNA OSHC 1385, 1977?78 CCH OSHD para. 21,815 (No. 12767, 1977) pet. for reviewdocketed, No. 77-1807 (3d Cir., June 20, 1977).??????????? Finally,we note that the Judge, without attempting to reconstruct the record or rulingupon the materiality of the omitted testimony, considered the only option todismissal to be reconvening the hearing to retake testimony. Generally, we findthat a procedure analogous to Federal Rules of Appellate Procedure 10(c) and(e)[6] is preferable. The partiesshould first attempt to reconstruct the testimony. If they are unable to reachagreement as to the omitted testimony the Administrative Law Judge should makefindings as to the content of the record.[7] Based upon all materialfindings he should then reach a decision on the merits. If such findings areimpossible to make, the Judge should reopen the record to replace the missingtestimony. In any event, a decision on the merits should be issued.[8]??????????? Accordingly,it is ORDERED that the Judge?s order is reversed and the case remanded forproceedings not inconsistent with this opinion.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: AUG 30, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77-1300 HAMILTON FOUNDRY DIVISION, HAMILTON ALLIED CORPORATION, ? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: May 14, 1979DECISION & ORDERAPPEARANCES:THEODORE J. PETHIA, Esq., U.S. Departmentof Labor Office of the Solicitor, Cleveland, Ohio, for the Complainant\u00a0ROGER A. WEBER, Esq., Taft, Stettinius& Hollister, Cincinnati, Ohio, for the Respondent\u00a0JACK SMITH, United Steelworkers Union,Local 3587, Fairfield, Ohio, for Employees\u00a0Wienman, Judge, OSHRC:STATEMENT OF THE CASE??????????? Thisis an occupational dispute arising out of an inspection conducted March 24,1977, at Respondent?s foundry in Hamilton, Ohio. An OSHA Compliance Officer hadvisited the plant pursuant to an employee complaint about a ?snag bag? grindermachine and requested a demonstration of the device. The machine operatorground several castings positioned on a notched work rest. The notch permitteda visible gap between the grinder wheel and work rest, and Complainant on April5, 1977, issued a Citation alleging a serious violation of occupational safetyregulation 29 CFR 1910.215(a)(4)[9] described as follows:Work rest(s) ongrinding machinery were not adjusted closely to the wheel with a maximumopening of one-eighth inch.??????????? Theworkrest on the U.S. Electrical Tool Company grinder, serial #592688, locatedin the grinding area, utilizing a ?snag bag? for snagging castings, was notmaintained at 1\/8? from outside edge of the fixture added for snagging theFruehauf ring to the wheel.??????????? Complainantproposed a $560 penalty in connection with the alleged violation. Abatement wasto be completed by April 20, 1977.??????????? Respondenttimely contested the Citation, and after Complaint and Answer were filed, ahearing was held in Cincinnati, Ohio, on July 19 and 20, 1977, with bothparties participating.??????????? Thetranscript prepared by the court reporter was accompanied by a letterconfessing the reporter?s difficulty in transcribing her notes (J?22). Thetranscript contained two passages occurring during the examination of CharlesDu Val, Respondent?s safety director, where the reporter was unable to render averbatim account of the testimony.??????????? Respondentfiled two motions premised upon transcript errors and omissions. The first wasa motion to correct or amend the transcript in which counsel suggestedcorrections for 52 passages exclusive of the Du Val testimony (J?17). Withrespect to the omitted material, Respondent represented that he was unable toreconstruct the testimony and therefore moved for dismissal, or in thealternative, for mistrial because of the absence of a full or proper transcript(J?17).??????????? Complainantopposed both motions, but the undersigned Judge granted Respondent?s motion todismiss and vacated the Citation. On August 30, 1978, the Commission reversedand remanded, directing the Judge to make findings as to the content of therecord and issue a decision on the merits.??????????? Subsequently,the parties conferred in an effort to reach an agreement as to transcriptcorrections and reconstruction. Complainant accepted 48 of the 52 specificcorrections suggested by Respondent (J?31, J?32). The parties reconstructed theomitted Du Val testimony by a deposition conducted February 15, 1979. Thedeposition and agreed corrections are expressly incorporated in the record, thecontent of which is now sufficient to support a decision on the merits.[10]THE ISSUES??????????? Nojurisdictional matters remain in issue. The parties pleaded facts sufficient toestablish that the Respondent is subject to the Act and that the Commission hasjurisdiction of the parties and the subject matter.??????????? Thechief issue for decision is whether Respondent violated an occupational safetyregulation as alleged in the Citation. Resolution of this issue depends largelyon determination of a factual dispute. Respondent contends that the notchedwork rest was not the tool used in production grinding of Fruehauf ringcastings, but that such castings were ground on a work rest which permitted aclose adjustment to the grinding wheel in compliance with the standard.SUMMARY OF THE EVIDENCE AND DISCUSSION??????????? OSHACompliance Officer Stephen Brunson inspected the foundry March 24, 1977, afterreceiving an employee complaint about the operation of a ?snag bag? grinderused to remove the excess metal from castings (T. 12). The ?snag bag? device isan inflated air bladder which forces the casting into the grinding wheel underpneumatic pressure (T. 18?19). The casting is positioned on a work rest (alsocalled a ?tool? or ?fixture?) during this operation.??????????? Theinspection party, which included company and union representatives in additionto two compliance officers, first observed Bob Bowman, snag bag operator,grinding a large 30 pound casting depicted in Exhibit G?1 (T. 20?23). Uponlearning that the complaint was directed at the grinding of a smaller castingknown as a Fruehauf ?nut? or ?ring,? Brunson requested a demonstration of theFruehauf operation. Bowman placed a fixture on the machine which was soonremoved in favor of a notched work rest (T. 23?30; Ex. C?3, C?4). He thendemonstrated the Fruehauf grinding (T. 34, Ex. C?5). The Fruehauf casting wasan octagonal nut with an inner diameter of 4 3\/4\u2033 walls, 3\/8\u2033thick, and total weight of approximately two pounds (T. 36).??????????? Afterobserving the demonstration, Brunson measured the distance from the leadingedge of the notched fixture to the grinding wheel. The distance was 3\/4\u2033 (T.42), a gap in excess of the 1\/8\u2033 maximum opening permissible under theOSHA standard.??????????? TheCitation was vigorously disputed by Respondent who contended that Bowmanemployed improper tooling during the demonstration. Rather, the productiontooling was said to be a work rest with a straight leading edge, which could beclosely adjusted to the grinding wheel (Ex. C?3).??????????? Eachparty produced multiple witnesses in support of its factual contentions. Forthe Complainant, three operators, Alan Ketcham, William Donnell, Jr., andRobert Bowman, testified they had always used the notched work rest whengrinding Fruehauf rings prior to the inspection (T. 89, 111, 116, 127).??????????? ForRespondent, a number of supervisory and maintenance employees testified thenotched tool was never used when they observed production grinding of Fruehaufcastings (T. 210?211, 257, 287, 300?301, 346). Respondent maintained that thenotched fixture had been specifically designed for a lipped Caterpillar casting(T. 253, Ex. R?7), and that there would have been no production advantage inusing a tool not closely adjusted to the grinding wheel (T. 153, 392). It wasalso suggested that grinder operators resisted introduction of the ?snag bag?because the device reduced their earnings (T. 369?370).??????????? Whateverthe motives of the operators, their testimony is persuasive that there had beena certain amount of production grinding of Fruehauf castings with the notchedwork rest in violation of the standard. No sensible reason explains thispractice since proper tooling was available, as evidenced by Exhibit C?3, aphoto taken by the Compliance Officer himself. Better communication betweensupervisory personnel and operators in the form of clear tooling instructions shouldhave avoided the problem, but Respondent?s failure to correct the procedureeven when observing a noncompliant operation during the inspection lendssupport to a finding that the standard was violated during production.??????????? Theresultant hazard was serious in terms of the likely injury to the operator if acasting jammed between the work rest and grinder and caused the wheel toshatter (T. 51, 169). However, the Compliance Officer vastly overestimated theprobability of such an event by giving it a value of five on an eight-pointscale. As of March 22, 1977, some 70,055 Fruehauf castings had been groundwithout incident (T. 371), positive proof that the chances of injury wereremote irrespective of the tooling the operator may have used.??????????? Section17(b) of the Act expressly commands the assessment of a monetary penalty for aserious violation of the Act. See Secretary v. Hodgdon Shingle & ShakeCo., 2 BNA OSHC 1215, CCH OSHD para. 18,722 (No. 1315, 1974); Secretaryv. Continental Steel Corp., 3 BNA OSHC 1410, CCH OSHD para. 19830 (No.3162, 1975). Mindful of the total circumstances surrounding theviolation?including the availability of proper tooling?we affirm the Citationbut assess only a nominal penalty of $1.00.FINDINGS OF FACT??????????? Havingheld a hearing and considered the entire record, it is concluded that apreponderance of the reliable, probative, and substantial evidence supports thefindings of fact set forth in the summary of evidence.CONCLUSIONS OF LAW??????????? 1. Atall material times Respondent was an employer within the meaning of section 3of the Occupational Safety and Health Act of 1970.??????????? 2. Jurisdictionof this proceeding is conferred upon the Occupational Safety and Health ReviewCommission by section 10(c) of the Act.??????????? 3. OnMarch 24, 1977, and on other prior occasions, Respondent violated occupationalsafety regulation 29 CFR 1910.215(a)(4) as alleged in item 1 of the Citationfor serious violation issued to Respondent April 5, 1977. There was substantialprobability that death or serious physical harm could result from the violativeconditions and Respondent, with the exercise of reasonable diligence, couldhave known of the presence of the violation.ORDER??????????? Basedon the above findings of fact and conclusions of law, it is ORDERED that theCitation for serious violations issued to Respondent April 5, 1977, is affirmedand a penalty in the sum of $1.00 is assessed thereon.?Alan M. WienmanJudge, OSHRCDated: April 12, 1979Footnotes\u00a0\u00a0\u00a0\u00a0[1] 1910.215 Abrasivewheel machinery(a)General requirements(4)Work rests. On offhand grinding machines, work rests shall be used to supportthe work. They shall be of rigid construction and designed to be adjustable tocompensate for wheel wear. Work rests shall be kept adjusted closely to thewheel with a maximum opening of one-eighth inch to prevent the work from beingjammed between the wheel and the rest which may cause wheel breakage. The workrest shall be securely clamped after each adjustment. The adjustment shall notbe made with the wheel in motion.[2] The courtreporter, in the typewritten transcript and subsequently by letter to theAdministrative Law Judge, indicated that on two occasions during the hearingshe ?lost her concentration? due to an undisclosed medical problem.[3] The parties arenot in agreement as to how much testimony was omitted from the transcript.Respondent asserts it is ?. . . at least four or five pages . . .? whilecomplainant contends that, at most, it amounts to two pages.[4] An unreviewed.Judge?s decision does not have precedential value Leone Construction, 76OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975?76 CCH OSHD para. 20,387 (No. 4090, 1976),appeal withdrawn, No. 76?4070 (2d Cir., May 17, 1976).[5] Cf. O?Brien& Nye Cartage Company, ___ OSAHRC ___, 3 BNA OSHC 1093, 1974?75 CCHOSHD para. 19,539 (No. 10477, 1975) (extreme sanction of dismissalinappropriate where Secretary unable to proceed due to lack of counsel andwitnesses caused by severe snowstorm).[6] Rule 10. TheRecord on Appeal(c)Statement of the evidence or proceedings when no report was made or when thetranscript is unavailable. If no report of the evidence or proceedings at ahearing or trial was made, or if a transcript a unavailable, the appellant mayprepare a statement of the evidence or proceedings from the best availablemeans, including his recollection. The statement shall be served on theappellee, who may serve objections or propose amendments thereto within 10 daysafter service. Thereupon the statement and any objections or proposedamendments shall be submitted to the district court for settlement and approvaland as settled and approved shall be included by the clerk of the districtcourt in the record on appeal.(e)Correction or Modification of the Record. If any difference arises as towhether the record truly discloses what occurred in the district court, thedifference shall be submitted to and settled by that court and the record madeto conform to the truth. If anything material to either party is omitted fromthe record by error or accident or is misstated therein, the parties bystipulation, or the district court either before or after the record istransmitted to the court of appeals, or the court of appeals, on propersuggestion or of its own initiative, may direct that the omission or misstatementbe corrected, and if necessary that a supplemental record be certified andtransmitted. All other questions as to the form and content of the record shallbe presented to the court of appeals.Rule 10(c) procedures are oftenappropriate for parties seeking relief under Rule 10(e), since the latter ruleis more general in its directions. 9 Moore?s Federal Practice ?210.06[3]at 1633.[7] Respondent?sMotion to Correct or Amend the Transcript is not before us and remains to beaddressed on remand. Inasmuch as this motion is opposed the Judge shouldresolve the dispute based upon his own recollection of the testimony. See RogersManufacturing Co. v. NLRB, 486 F.2d 644 (6th Cir. 1973), cert. denied 416U.S. 937 (1974).[8] The choice is forthe Judge and should be made with due regard for the goal of prompt resolution.[9] Regulation 29 CFR1910.215(a)(4) provides:(4) Work rests. On offhand grindingmachines, work rests shall be used to support the work. They shall be of rigidconstruction and designed to be adjustable to compensate for wheel wear. Workrests shall be kept adjusted closely to the wheel with a maximum opening ofone-eighth inch to prevent the work from being jammed between the wheel and therest, which may cause wheel breakage. The work rest shall be securely clampedafter each adjustment. The adjustment shall not be made with the wheel inmotion.[10] Complainant?sobjections to the four disputed specific corrections appear to be well taken,and those passages stand uncorrected as reported.”