“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 12713\t\t\t\t\t\t\t\t\t\tHOERNER WALDORF CORP.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBefore Barnako, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION. A decision of Review Commission Judge Vernon Riehl, dated\t\t\t\t\t\t\t\t\t\tSeptember 29, 1975, is before this Commission for review pursuant to 29 U.S.C. \u00a7 661(i).\t\t\t\t\t\t\t\t\t\tHaving examined the record in its entirety, the Commission finds no abuse of discretion\t\t\t\t\t\t\t\t\t\tby the Judge in his rulings regarding complainant\u2019s failure to comply with his pretrial\t\t\t\t\t\t\t\t\t\tinstructions and concludes that the Judge properly decided the case.\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAccordingly, the Judge\u2019s decision, which is attached hereto as Appendix A, is hereby\t\t\t\t\t\t\t\t\t\taffirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: OCT 21, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCLEARY, Commissioner, DISSENTING:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tChairman Barnako does not agree to this attachment.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tI dissent. On the facts of this case, I would find that the Judge abused his discretion. The\t\t\t\t\t\t\t\t\t\tsanction that he applied for the Secretary of Labor\u2019s failure to comply literally with the pre-\t\t\t\t\t\t\t\t\t\thearing instructions was premature and overly broad.\t\t\t\t\t\t\t\t\t\tOn June 3, 1975, the Judge, sua sponte, issued pre-hearing instructions to both parties\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tpursuant to Rule 51(a) of the Commission Rules of Procedure. In pertinent part, the instructions\t\t\t\t\t\t\t\t\t\tread as follows:\t\t\t\t\t\t\t\t\t\tComplainant and Respondent in this proceeding are hereby required to exchange\t\t\t\t\t\t\t\t\t\twith each other and submit to the undersigned Judge, at the address indicated in\t\t\t\t\t\t\t\t\t\tthe letterhead hereof filed by mail no later than 10 days before hearing, the\t\t\t\t\t\t\t\t\t\tfollowing:\t\t\t\t\t\t\t\t\t\t(1)\t\t\t\t\t\tThe names and addresses of the witnesses each proposes to call, together with\t\t\t\t\t\t\t\t\t\tan estimate of the total time required for the presentation of their respective\t\t\t\t\t\t\t\t\t\tcases.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBy letter dated July 3, 1975, respondent meticulously complied with the pre-hearing\t\t\t\t\t\t\t\t\t\torder. The Secretary submitted no written response either to the Judge or to respondent.\t\t\t\t\t\t\t\t\t\tHowever, several telephone conversations were conducted between counsel for the Secretary and\t\t\t\t\t\t\t\t\t\trespondent. During the conversations, respondent was informed that the compliance officer\t\t\t\t\t\t\t\t\t\twould be the only witness except for the rebuttal witnesses.\t\t\t\t\t\t\t\t\t\tAt the opening of the Secretary\u2019s case at the hearing, respondent objected to the\t\t\t\t\t\t\t\t\t\tpresentation of any witnesses and moved that the complaint be dismissed and that the citation\t\t\t\t\t\t\t\t\t\tand proposed penalties be vacated. As grounds for its motion, respondent claimed that it was\t\t\t\t\t\t\t\t\t\tsurprised and prejudiced by the Secretary\u2019s failure to comply adequately with the pre-hearing\t\t\t\t\t\t\t\t\t\tinstruction. It argued that a fair hearing could not be conducted because the Secretary was aware\t\t\t\t\t\t\t\t\t\tof the identity of respondent\u2019s witnesses and what documentary evidence would be submitted,\t\t\t\t\t\t\t\t\t\tbut respondent lacked any information concerning the Secretary\u2019s case.\t\t\t\t\t\t\t\t\t\tThe Judge sustained respondent\u2019s objection to the presentation of witnesses by the\t\t\t\t\t\t\t\t\t\tSecretary finding that. . . it is indeed a prejudice for the respondent to go to the\t\t\t\t\t\t\t\t\t\texpense and trouble of complying with an order of the court to exchange\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\t29 CFR \u00a7 2200.51(a) reads,\t\t\t\t\t\t\t\t\t\tAt any time before a hearing, the Commission or the Judge, on their own motion\t\t\t\t\t\t\t\t\t\tor on motion of a party, may direct the parties or their representatives to exchange\t\t\t\t\t\t\t\t\t\tinformation or to participate in a prehearing conference for the purpose of\t\t\t\t\t\t\t\t\t\tconsidering matters which will tend to simplify the issues or expedite the\t\t\t\t\t\t\t\t\t\tproceedings.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tinformation and for the Government to hold back until the last minute and then\t\t\t\t\t\t\t\t\t\tzap the respondent on the head with surprise testimony.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Judge then granted respondent\u2019s motion to dismiss for lack of proof.\t\t\t\t\t\t\t\t\t\tIt is certainly within a Judge\u2019s discretion to sanction a failure to comply with a pre-\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\thearing instruction by the exclusion of witnesses. I submit, however, that the sanction was\t\t\t\t\t\t\t\t\t\tapplied prematurely in this case. There was no surprise to respondent with regard to the calling\t\t\t\t\t\t\t\t\t\tof the compliance officer to testify. Respondent had been informed that the compliance officer\t\t\t\t\t\t\t\t\t\twould be a witness. At the specific point in time when the compliance officer was rejected as a\t\t\t\t\t\t\t\t\t\twitness, the only failure of the Secretary with respect to responding to the pre-hearing instruction\t\t\t\t\t\t\t\t\t\twas a nominal failure to set down the content of the phone conversations in writing. The contents\t\t\t\t\t\t\t\t\t\tof the testimony of witnesses was not mentioned by the pre-hearing instruction . I, therefore, find\t\t\t\t\t\t\t\t\t\tno prejudice would ensue to respondent by allowing the compliance officer to testify.\t\t\t\t\t\t\t\t\t\tUnder the circumstances, I would find that the Judge should have allowed testimony by\t\t\t\t\t\t\t\t\t\tthe compliance officer. Following that testimony, issues relating to whether the pre-trial\t\t\t\t\t\t\t\t\t\tinstructions were adequately followed may have been raised.\t\t\t\t\t\t\t\t\t\tIn dissenting, I am also mindful that \u2018serious\u2019 violations of 29 CFR \u00a7 1910.178 are\t\t\t\t\t\t\t\t\t\talleged in this case. By definition, \u2018serious\u2019 violations involve hazards that could probably cause\t\t\t\t\t\t\t\t\t\tserious physical harm or death to exposed employees. 29 U.S.C. \u00a7 666(j).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAlthough interference with the presiding officer\u2019s discretion in a case of this kind should\t\t\t\t\t\t\t\t\t\tbe kept to a minimum, we have an overriding responsibility to see that justice is done and that\t\t\t\t\t\t\t\t\t\tthe remedial statutory purpose is not easily frustrated. Cf. Padovani v. Bruchausen, 293 F.2d 546,\t\t\t\t\t\t\t\t\t\t547\u201348 (2d Cir. 1961).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tCf. Matheny v. Forter, 158 F.2d 478 (10th Cir. 1948), applying Rule 16 of the Federal Rules of\t\t\t\t\t\t\t\t\t\tCivil Procedure. Although Federal rule 16 involves a much more formalized order than is\t\t\t\t\t\t\t\t\t\tinvolved in this case, the purposes of Federal rule 16 and Commission rule 51 are, however,\t\t\t\t\t\t\t\t\t\tessentially identical. See also 5 U.S.C. section 556.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 12713\t\t\t\t\t\t\t\t\t\tHOERNER WALDORF CORP.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t*1 APPEARANCES:\t\t\t\t\t\t\t\t\t\tJAMES M. CLEETON, Esquire, United States Department\t\t\t\t\t\t\t\t\t\tof Labor, Office of the Solicitor, Kansas City,\t\t\t\t\t\t\t\t\t\tMissouri\t\t\t\t\t\t\t\t\t\tfor the Complainant\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tKENNETH L. SOVEREIGN, Esquire, Senior Attorney and\t\t\t\t\t\t\t\t\t\tVice President, Hoerner Waldorf Corporation,\t\t\t\t\t\t\t\t\t\tSt. Paul, Minnesota\t\t\t\t\t\t\t\t\t\tfor the Respondent\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSTATEMENT OF CASE\t\t\t\t\t\t\t\t\t\tVernon Riehl, Judge, OSAHRC\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970 contesting a citation issued by the complainant against the respondent under the authority\t\t\t\t\t\t\t\t\t\tvested in the complainant by section 9(a) of that Act. The citation alleges that an inspection of a\t\t\t\t\t\t\t\t\t\tworkplace under the ownership, operation and control of the respondent revealed the existence of\t\t\t\t\t\t\t\t\t\tworkplace conditions that violate section 5(a)(2) of the Act for the reason that these conditions\t\t\t\t\t\t\t\t\t\tfail to comply with certain occupational safety and health standards promulgated by the\t\t\t\t\t\t\t\t\t\tSecretary of Labor pursuant to section 6 thereof.\t\t\t\t\t\t\t\t\t\tThe citation alleges that the violation results from a failure to comply with standards\t\t\t\t\t\t\t\t\t\tpromulgated by publication in the Federal Register.\t\t\t\t\t\t\t\t\t\tA description of the alleged violations contained in said citation states:\t\t\t\t\t\t\t\t\t\tCitation for Serious Violation\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tItem 1a, 29 CFR 1910.178(p)(1)\t\t\t\t\t\t\t\t\t\tThe following powered industrial trucks operating in the plant had defective\t\t\t\t\t\t\t\t\t\tequipment and were not taken out of service for repair:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1) Clark truck #5, brakes were not effective enough to stop the truck\t\t\t\t\t\t\t\t\t\twithin a reasonable distance\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2) Clark truck #4, did not have an operable horn.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tItem 1b, 29 CFR 1910.178(q)(7)\t\t\t\t\t\t\t\t\t\tOperators of powered industrial trucks were not properly trained to inspect their\t\t\t\t\t\t\t\t\t\tassigned truck daily or at the start of the shift to determine if the vehicle had any\t\t\t\t\t\t\t\t\t\tdefects that would adversely affect its safe operation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOn our own motion, on June 3, 1975, we forwarded \u2018PRE-HEARING INSTRUCTIONS\u2019\t\t\t\t\t\t\t\t\t\tto both parties requiring them to exchange with each other, and submit to us by mail no later than\t\t\t\t\t\t\t\t\t\tten days before the hearing, the following:\t\t\t\t\t\t\t\t\t\t\u2018Complainant and Respondent in this proceeding are hereby required to exchange\t\t\t\t\t\t\t\t\t\twith each other and submit to the undersigned Judge, at the address indicated in\t\t\t\t\t\t\t\t\t\tthe letterhead hereof filed by mail no later than 10 days before hearing, the\t\t\t\t\t\t\t\t\t\tfollowing:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1) The names and addresses of the witnesses each proposes to call,\t\t\t\t\t\t\t\t\t\ttogether with an estimate of the total time required for the presentation of\t\t\t\t\t\t\t\t\t\ttheir respective cases.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2) A complete list of (a) documents and (b) photographs and other forms\t\t\t\t\t\t\t\t\t\tof demonstrative evidence which each proposes to offer in evidence\t\t\t\t\t\t\t\t\t\ttogether with copies of all documents and, where feasible, copies of\t\t\t\t\t\t\t\t\t\tphotographs or other forms of demonstrative evidence. Counsel are\t\t\t\t\t\t\t\t\t\tdirected, where such evidence is not reasonably susceptible of copying\t\t\t\t\t\t\t\t\t\tand exchange in advance of hearing, to permit examination of such items\t\t\t\t\t\t\t\t\t\tby opposing counsel immediately before trial. No copies of documents or\t\t\t\t\t\t\t\t\t\tphotos are required to be submitted in advance of the hearing to the Judge.\t\t\t\t\t\t\t\t\t\tThe parties are advised that failure to comply with the requirement set\t\t\t\t\t\t\t\t\t\tforth above may, in the absence of a convincing showing of good cause,\t\t\t\t\t\t\t\t\t\tbe considered grounds for dismissal, orders of exclusion, or such other\t\t\t\t\t\t\t\t\t\torders as may appear appropriate.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tComplainant and Respondent are urged to communicate with each other prior to\t\t\t\t\t\t\t\t\t\tthe hearing and as soon after receipt of these instructions as possible in order to\t\t\t\t\t\t\t\t\t\tarrive at admissions or stipulations concerning facts and documents as to which\t\t\t\t\t\t\t\t\t\tthere can be no reasonable dispute. Such parties should be prepared at the\t\t\t\t\t\t\t\t\t\tcommencement of the hearing to present such admissions or stipulations. The\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tparties are urged to reduce the same to writing in order to minimize potential\t\t\t\t\t\t\t\t\t\tambiguities.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFacts or matters which would be considered for stipulation (unless clearly\t\t\t\t\t\t\t\t\t\tinapplicable in this case or clearly acknowledged or confessed in the pleadings)\t\t\t\t\t\t\t\t\t\tshould include, but not be limited to, the following:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1. The legal name of the Respondent or Petitioner, and if appropriate, the\t\t\t\t\t\t\t\t\t\tstate of incorporation and the location of its principal office.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. Facts which indicate whether or not the Respondent or Petitioner was\t\t\t\t\t\t\t\t\t\tengaged in a business affecting commerce at the time of the alleged\t\t\t\t\t\t\t\t\t\tviolation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3. The fact of employment by the Respondent of any person injured at the\t\t\t\t\t\t\t\t\t\ttime and place of the alleged violation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4. The ownership or control by Respondent of any equipment or\t\t\t\t\t\t\t\t\t\tmachinery, the use of which is referred to in the Citation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5. The average daily number of employees of the Respondent during the\t\t\t\t\t\t\t\t\t\tcurrent or most recent calendar year.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6. The history, if any, of previous violations by the Respondent of any law\t\t\t\t\t\t\t\t\t\tor regulation affecting the safety and health of employees.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7. When and where the Respondent posted the Citation and\/or posted or\t\t\t\t\t\t\t\t\t\tserved by mail or personal delivery the notice of hearing and any other\t\t\t\t\t\t\t\t\t\tnotices, orders or documents for the benefit of affected employees or their\t\t\t\t\t\t\t\t\t\trepresentatives.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8. The scope of authority of any witness who is an officer or employee of\t\t\t\t\t\t\t\t\t\tthe Respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9. The authenticity of any document or writing which a party proposes to\t\t\t\t\t\t\t\t\t\toffer at the hearing.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t10. The validity and reliability of any statement in any document proposed\t\t\t\t\t\t\t\t\t\tto be offered in evidence, including but not limited to figures,\t\t\t\t\t\t\t\t\t\tcomputations, percentages, and projections.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11. Any other fact or matter not in dispute which may aid the Review\t\t\t\t\t\t\t\t\t\tCommission Judge in the expeditious disposition of this proceeding.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThis was done for the purpose of all sides considering matters which would tend to\t\t\t\t\t\t\t\t\t\tsimplify the issues and expedite the proceedings.\t\t\t\t\t\t\t\t\t\tOn July 3, 1975, the respondent fully complied with this order and submitted a list of\t\t\t\t\t\t\t\t\t\twitnesses and documents to be offered in evidence. He also made certain stipulations affecting\t\t\t\t\t\t\t\t\t\tjurisdiction among other things.\t\t\t\t\t\t\t\t\t\tThe complainant did not submit such a list up to and including the date of hearing.\t\t\t\t\t\t\t\t\t\tKenneth L. Sovereign, Vice President and Senior Attorney for the respondent, sent the\t\t\t\t\t\t\t\t\t\tfollowing letter, dated July 3, 1975, to James M. Cleeton, Solicitor for the Department of Labor.\t\t\t\t\t\t\t\t\t\t\u2018Dear Mr. Cleeton:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tEnclosed herewith is the information requested by the Pre-hearing Instructions of\t\t\t\t\t\t\t\t\t\tJudge Riehl. Inasmuch as I did not hear from you, as you had proposed in our\t\t\t\t\t\t\t\t\t\ttelephone conversation of June 27, I had no other alternative but to comply with\t\t\t\t\t\t\t\t\t\tthe Pre-Hearing Instructions without further consultation with you. It is regretable\t\t\t\t\t\t\t\t\t\tthat we were not able to comply more fully with Judge Riehl\u2019s Pre-Hearing\t\t\t\t\t\t\t\t\t\tInstructions.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSincerely yours,\t\t\t\t\t\t\t\t\t\tHOERNER WALDORF CORPORATION\t\t\t\t\t\t\t\t\t\tKenneth L. Sovereign\t\t\t\t\t\t\t\t\t\tVice President & Senior Attorney\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe hearing was held on August 27, 1975, in Des Moines, Iowa.\t\t\t\t\t\t\t\t\t\tOn the date of the hearing, the Solicitor for the Department of Labor announced ready\t\t\t\t\t\t\t\t\t\tand offered as his first witness Samuel Zier.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s attorney, Mr. Sovereign, objected to the presenting of any witnesses in the\t\t\t\t\t\t\t\t\t\ttrial and moved that the complaint be dismissed and the citation and proposed penalty be vacated\t\t\t\t\t\t\t\t\t\t(T. 3).\t\t\t\t\t\t\t\t\t\tAs grounds for his motion, Mr. Sovereign stated that the prehearing instructions, dated\t\t\t\t\t\t\t\t\t\tJune 3, 1975, sent by this court to the Secretary\u2019s office, had not been complied with. He stated\t\t\t\t\t\t\t\t\t\tthat the complainant by not having answered prejudiced respondent in its hearing and that a fair\t\t\t\t\t\t\t\t\t\tand just hearing could not be held.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMr. Sovereign stated that he had complied with the order and gone to the expense of\t\t\t\t\t\t\t\t\t\tbringing witnesses with him who had salaries ranging from about 50 to 100 dollars per day plus\t\t\t\t\t\t\t\t\t\twhatever expenses they incurred from the out of town witnesses.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMr. Sovereign, on behalf of respondent, claimed surprise. He stated the Government\t\t\t\t\t\t\t\t\t\tknew who his witnesses were going to be: they knew also what records, evidence and exhibits he\t\t\t\t\t\t\t\t\t\twas going to submit. He further stated the Government had a wonderful opportunity to prove its\t\t\t\t\t\t\t\t\t\tcase and that respondent knew nothing until the time he arrived at the hearing (T. 6). He\t\t\t\t\t\t\t\t\t\tindicated that he was in the dark as to what was going to happen.\t\t\t\t\t\t\t\t\t\tRespondent stated that he understood that the pre-hearing instructions were for the\t\t\t\t\t\t\t\t\t\tpurpose of eliminating the element of surprise. Also, they are for the purpose of having a trial\t\t\t\t\t\t\t\t\t\tmove in an efficient manner and that it was very possible that instead of the trial lasting a half\t\t\t\t\t\t\t\t\t\tday or a day, it could last two days because of the lack of information as requested by this court.\t\t\t\t\t\t\t\t\t\tHe also stated that he thought it was unfair and that it prejudiced the respondent\u2019s position to\t\t\t\t\t\t\t\t\t\tcontinue the trial.\t\t\t\t\t\t\t\t\t\tMr. Cleeton stated that he had several telephone conversations in which he told him Mr.\t\t\t\t\t\t\t\t\t\tZier would be there as his only witness except for rebuttal witnesses. We pointed out to Mr.\t\t\t\t\t\t\t\t\t\tCleeton that when the Solicitor\u2019s office does not furnish the material in writing as suggested by\t\t\t\t\t\t\t\t\t\tthe court order, so as to facilitate the handling of a case and eliminate the element of surprise,\t\t\t\t\t\t\t\t\t\tthat it was an inequitable arrangement to have in this case or in future cases (T. 7).\t\t\t\t\t\t\t\t\t\tMr. Cleeton agreed that such orders should be complied with but felt there was no\t\t\t\t\t\t\t\t\t\tprejudice in the case.\t\t\t\t\t\t\t\t\t\tWe disagree with this conclusion and feel that it is indeed a prejudice for the respondent\t\t\t\t\t\t\t\t\t\tto go to the expense and trouble of complying with an order of the court to exchange information\t\t\t\t\t\t\t\t\t\tand for the Government to hold back until the last minute and then zap the respondent on the\t\t\t\t\t\t\t\t\t\thead with surprise testimony.\t\t\t\t\t\t\t\t\t\tThe Solicitor indicated there was no typing problem in his office or any legitimate reason\t\t\t\t\t\t\t\t\t\twhy he could not have complied with the order of the court. He also agreed that the respondent\t\t\t\t\t\t\t\t\t\talso had a lot of business to handle but had arranged to be present and had done everything that\t\t\t\t\t\t\t\t\t\tthey should have done to comply with the court\u2019s order to exchange information (T. 8).\t\t\t\t\t\t\t\t\t\tWhereupon, we considered the matter and concluded that the respondent had indeed been\t\t\t\t\t\t\t\t\t\tprejudiced by being left in the dark until the complainant put on his evidence; that such a\t\t\t\t\t\t\t\t\t\tcondition is inequitable and unfair to this respondent and other respondents in like cases. We\t\t\t\t\t\t\t\t\t\taccordingly rejected the Solicitor\u2019s witness.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe Solicitor announced that he had nothing further nor did he offer any further\t\t\t\t\t\t\t\t\t\twitnesses.\t\t\t\t\t\t\t\t\t\tRespondent then moved that the case be dismissed inasmuch as the Government had\t\t\t\t\t\t\t\t\t\tfailed to show that the elements necessary for a serious violation were present. We sustained this\t\t\t\t\t\t\t\t\t\tmotion and the citation and penalties are accordingly vacated.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t1. The Department of Labor has failed to comply with an order of this court to exchange\t\t\t\t\t\t\t\t\t\tinformation in the interest of expediting the case and of conducting a fair trial.\t\t\t\t\t\t\t\t\t\t2. There was no evidence of record sustaining the Department of Labor\u2019s citation and\t\t\t\t\t\t\t\t\t\tpenalty.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\tThe failure of the Secretary of Labor to comply with the court\u2019s motion to exchange\t\t\t\t\t\t\t\t\t\tinformation, according to rule 51, surprised and prejudiced the respondent\u2019s ability to conduct a\t\t\t\t\t\t\t\t\t\tdefense.\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tThe citation and the proposed penalties are vacated.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tVernon Riehl\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t”