“__________________________________ :SECRETARY OF LABOR, : : Complainant, : : v. : OSHRC Docket No. 93-1886 :OSCAR RENDA CONTRACTING, INC., : : Respondent. :__________________________________:BEFORE: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.BY THE COMMISSION:*DECISION*This case arises out of an accident at the worksite of Oscar RendaContracting, Inc. (\”Oscar Renda\”), which resulted in the death of anemployee. Following the accident, the Secretary of Labor (\”Secretary\”)conducted an inspection and issued a citation charging Oscar Renda withnumerous serious violations of the Occupational Safety and Health Act of1970, 29 U.S.C. sections 651-678, and proposing penalties totaling$26,400. Administrative Law Judge Stanley M. Schwartz vacated thecitation in its entirety based on his finding that the Secretary failedto establish a prima facie violation of any of the cited standards. Atissue on review is the question of whether the record should bereopened. For the following reasons we find that the record should bereopened, and we vacate the judge’s decision, remanding the case forfurther proceedings consistent with this decision.[1]*I. BACKGROUND*The hearing before the judge commenced on January 11, 1994, at whichtime the Secretary requested a postponement due to the inspectingcompliance officer’s failure to appear. The Secretary explained that theDepartment of Labor had terminated Compliance Officer (\”CO\”) DebraMcDavid’s employment, she had been subpoenaed the previous evening, andher presence was necessary to adequately present evidence and formulatequestions to witnesses. The judge denied the Secretary’s request due tothe fact that service of the subpoena occurred only the evening beforetrial[2] and, \”more importantly,\” because of his \”complete confidence\”that the Secretary had fact witnesses and another experienced complianceofficer available at the hearing.[3]During the hearing it became evident that two of the Secretary’s threefact witnesses could not effectively testify without an interpreter. Thefirst witness, Abel Espinoza, stated that he could not understandEnglish well and asked that the questioning proceed more slowly. He was,nevertheless, questioned by both parties with no discussion of the needfor an interpreter, and the record contains numerous lapses in histestimony where the designation \”unintelligible\” was inserted by thecourt reporter. The second witness, Rogelio Rojas, was unable tounderstand the oath when the judge attempted to swear him in and askedfor an interpreter. Despite acknowledgment by both parties and the judgethat an interpreter was needed, questioning of Mr. Rojas proceededwithout translation and the record reflects numerous lapses in histestimony by the designation \”unintelligible.\”The Secretary’s third employee testified effectively in English, but hadlimited knowledge of the circumstances and conditions underlying thealleged violations. Oscar Renda presented no evidence or testimony. Atthe close of the hearing, when it had become clear that CO McDavid’stestimony was essential to establishing the violations, the Secretarystated his intent to compel her appearance. The judge ruled that anymotion for subpoena enforcement must be preceded by a motion to reopenthe record which would \”stand or fall on the reasons occurring prior tothe actual hearing in this matter ….\”In his motion to reopen, the Secretary argued that the CO’s testimonywas necessary to complete the record, and explained that the CO had beenfired for insubordination, was informed of the hearing, indicated shewould be available for trial, and was subpoenaed because the Secretarywas uncertain she would keep her commitment. The judge denied the motionon April 29, 1994, for failure to show good cause justifying the latepostponement request. In a series of letters the Secretary subsequentlyrequested reconsideration of the judge’s ruling arguing that failure ofa witness under subpoena to appear constitutes exigent circumstancesjustifying a hearing postponement despite an otherwise untimely request.In addition, the Secretary explained that although CO McDavid had agreedto testify two weeks prior to the hearing, he served a subpoena on herattorney to ensure her appearance. When the attorney complained ofimproper service the day before the hearing, the Secretary attempted toserve McDavid by a private process server.[4] By the time of theSecretary’s reconsideration request, McDavid had been reinstated,mooting any subpoena enforcement issue.The judge issued a decision on June 28, 1994 vacating the citation inits entirety. Reaffirming his earlier rulings, the judge concluded that\”where there was a well-founded fear the CO would not appear because shehad been terminated, leaving a subpoena with a roommate the night beforethe hearing was insufficient and provides no basis for postponing thehearing or reopening the record.\” In addition, the judge’s decisionaccurately states that \”Espinoza indicated he could not understandEnglish very well, while Rojas specifically stated he needed aninterpreter.\” Despite acknowledgement by both parties that aninterpreter was needed, and notwithstanding his own finding that asignificant portion of the testimony given by witnesses Espinoza andRojas was \”unintelligible\”, the judge found that \”none of the testimonyof either of these witnesses addressed any of the allegations set forthin the citation items.\”*II. DISCUSSION**A. The Appropriate Standard*It is well settled that a request for postponement must be supported bya showing of good cause for the need to postpone, and for any failure torequest a postponement later than seven days prior to trial. \/BaytownConstr. Co.\/, 15 BNA OSHC 1705, 1708, 1991-93 CCH OSHD paragraph 29,741,p. 40,412 (No. 88-2912-S, 1992), \/aff’d without published opinion\/, 983F.2d 232 (5th Cir. 1993); \/Hern Iron Works, Inc.\/, 13 BNA OSHC 2186,2186-2187, 1987-90 CCH OSHD paragraph 28,502, p. 37,773 (No. 88-1962,1989). When the Secretary requested a postponement at the outset of thehearing, he failed to fully explain to the judge the background of thesubpoena of CO McDavid and her failure to appear, nor did he explain whyMcDavid’s testimony was essential to establishing the violations. Indenying the request the judge explained that he had \”completeconfidence\” that the Secretary had adequate witnesses available, andwould not be prejudiced by the absence of Compliance Officer McDavid. Atthat time, therefore, as the judge reasonably concluded, the Secretaryhad not shown good cause either for the need to postpone or for hisuntimely request.Different circumstances prevailed and different criteria applied,however, at the close of the hearing when the Secretary requested thatthe record be reopened. While neither the Commission’s rules nor theFederal Rules of Civil Procedure contain specific procedures governingmotions to reopen a hearing or record, the Commission has consideredsuch motions in a number of cases on review, adopting the federalcourts’ criteria of \”fairness and substantial justice\” in light of \”allthe surrounding circumstances\” in deciding whether to grant or deny themotion. \/See e.g., Article II Gun Shop, Inc.\/, 16 BNA OSHC 2035, 2036,1994 CCH OSHD paragraph 30,563, p. 42,229 (No. 91-2146, 1994)(consolidated); \/Chesapeake Operating Co.\/, 10 BNA OSHC 1790, 1792-93,1982 CCH OSHD paragraph 26,142, p. 32,915 (No. 78-1353, 1982) (quoting6A Moore’s Federal Practice, paragraph 59.04[13], p. 59-39(1994)).Accordingly, we find that fairness and substantial justice is thestandard under which the Secretary’s motion to reopen should have beenconsidered. \/See Equitable Shipyards, Inc.\/, 12 BNA OSHC 1288, 1290,1984-85 CCH OSHD paragraph 27,237, p. 35,161 (No. 81-1685, 1985)(consolidated) (finding fundamental fairness required that respondent begiven opportunity to obtain crucial testimony, Commission ordered remandwhere witness declined to appear at hearing and judge denied subpoenaenforcement motion).[5]While the grant or denial of a motion to reopen is an exercise ofdiscretion on the part of the trial judge which we are normallyreluctant to disturb, that discretion must be exercised within thecontext of the proper standard. The applicable standard is a matter oflaw, and is not discretionary. The record here shows that in consideringthe Secretary’s post-hearing motion to reopen the record the judgeapplied the good cause standard and limited his consideration to\”reasons occurring prior to the actual hearing,\” without considerationof further intervening and surrounding circumstances which might berelevant. Accordingly, we conclude that the judge erred as a matter oflaw by failing to apply the \”fairness and substantial justice\” test inlight of all the surrounding circumstances when ruling on the motion toreopen the record.[6]*B. Application of the Standard*In applying the fairness and substantial justice test to motionsrequesting a reopening of the record, the Commission has considered thetiming of the motion, the character of additional testimony, and theeffect of granting the motion. Applying these factors here, we find thatthe Secretary’s efforts to ensure CO McDavid’s appearance at thehearing, were not a model of diligence but evidenced a continued effortto obtain vital testimony in the face of unusual and changingcircumstances. McDavid had been fired for insubordination but had agreedto testify just two weeks prior to the hearing. In order to ensure herpresence, the Secretary served a subpoena on her attorney who complainedof improper service only the day before the hearing. In thesecircumstances, the Secretary had little basis upon which to timelyrequest a postponement the requisite seven days prior to trial, nor didhe have much time to effect personal service.[7] At the hearing, theSecretary immediately requested a postponement although admittedly hecould have provided more detailed information at that time concerningthe circumstances of McDavid’s failure to appear. After completion ofthe proceedings, the Secretary indicated his intent to compel the CO’sappearance. The Secretary filed a formal motion to reopen the recordjust over a month after the hearing date, within the time specified bythe judge. Following the judge’s denial of the motion, the Secretaryrequested reconsideration of the ruling supported by further details ofhis efforts to obtain McDavid’s appearance. Finally, although he did notpetition for review, the Secretary’s position before the Commission isthat reopening the record remains necessary and justifiable. \/Cf.Genesee Brewing Co.\/, 11 BNA OSHC 1516, 1518, 1983-84 CCH OSHD paragraph26,519, p. 33,763 (No. 78- 5178, 1983) (remand warranted whereSecretary’s efforts in seeking discovery inspection prior to hearing,though not model of diligence, not excessively dilatory).While the Secretary’s efforts to timely present the CO’s testimony wereless than exemplary, any sanction for his lack of diligence in dealingwith McDavid’s appearance must be assessed in the context of the hearingitself. The purpose of this hearing was to adjudicate allegations ofnumerous serious violations of the Act arising from an accident in whichemployee Rodolpho Fierra died from injuries suffered when a 3500-poundplate fell while being lowered into a trench. In denying the Secretary’spostponement request the judge relied on his \”complete confidence\” thatthe Secretary had fact witnesses whose testimony would be available. Atthe hearing (which lasted less than two hours) two witnesses made cleartheir inability to communicate adequately in English and need forinterpretive assistance and, in the absence of such assistance,presented testimony that was admittedly unintelligible to the judge andcounsel. The third, who was able to testify in English, had limitedknowledge of the conditions relating to the alleged violations.If we were to examine each element and each episode in this processwithout reference to the others, we might reach a different conclusionthan we do today. Looking at the totality of the circumstances, however,and applying the test of fairness and substantial justice, we concludethat we must remand this proceeding and direct that the record be reopened.In particular, we note the circularity of the judge’s reasoning.Initially, he found that postponement was not warranted based on thefailure of the CO to appear, in part, because other witnesses wereavailable. Later, however, when it became apparent that the only twowitnesses with direct knowledge of the allegations were \”unintelligible\”because of their lack of facility with the English language, he neitherprovided an interpreter nor permitted the record to be reopened forinclusion of CO McDavid’s testimony despite the Secretary’s furtherelucidation of the circumstances under which she initially failed toappear. Finally, the judge issued a decision which both characterizedthe testimony of these two witnesses as unintelligible and stated thatit did not address the allegations.The judge, perforce, evaluated each element in the process at the timeit occurred. However, as noted above, he applied the incorrect test whenconsidering the Secretary’s motion to reopen. We have reviewed theprocess as a whole as outlined above and conclude that it simply doesnot satisfy the proper test of \”fairness and substantial justice,\” nordoes it meet the standards which Commission procedures must maintain.In this regard, we note in particular our dismay at the absence of aninterpreter for the two non-English speaking witnesses, particularly inlight of the judge’s subsequent conclusion that their admittedlyunintelligible testimony was not probative.[8] Following Mr. Rojas’request for translation and obvious difficulty understanding theproceedings, the judge pointed out that a certified interpreter mayassist in Commission proceedings but noted that \”[w]e usually do itahead of time, if either party lets [the judge] know.\” The Secretary hadnot requested an interpreter for these witnesses, and the partiesquestioned Mr. Espinoza and Mr. Rojas without translation. As the judgenoted in his decision, \”[b]oth were native Spanish speakers and it wasapparent from their testimony that their command of English was verylimited, a fact that rendered a significant portion of their testimonyunintelligible.\”The Commission’s rules provide no express guidance on the use orappointment of interpreters. In such circumstances, the Commission mightproceed under the Federal Rules of Evidence. Federal Rule of Evidence604 (\”Interpreters\”), however, is silent to the issue here, providingmerely that \”[a]n interpreter is subject to the provisions of theserules relating to qualification as an expert and the administration ofan oath or affirmation to make a true translation.\” The Federal Rules ofCivil Procedure, by which the Commission is also governed in the absenceof an applicable Commission rule, are somewhat, but not decisively, morehelpful, providing that a \”court may appoint an interpreter of its ownselection and may fix his reasonable compensation.\” Fed. R. Civ. P.43(f). This rule empowers the court in a civil proceeding to appoint aninterpreter, but does not by its terms require a court to do so.[9]We simply do not know why the Secretary failed to request an interpreterat the hearing, at least when it became self-evident that the witnessescould not be understood and were in need of assistance. It is clear,nonetheless, that the failure to provide those invited to appear beforeus with the basic means to be effectively understood, particularly ontheir explicit request, demeans both the witness and the forum andundermines the credibility, much less the civility, of the adjudicativeprocess.[10] We need not decide here, however, whether and under whatcircumstances Commission judges are obliged to provide interpreters evenabsent a party’s request. Rather, under all the circumstances here,including the judge’s denial of the motion to postpone based, in part,on the presence of witnesses Espinoza and Rojas, his later denial of therequest to reopen, and his decision simultaneously citing theunintelligibility and irrelevance of the testimony, we find that theabsence of an interpreter constituted one of the critical flaws in thisproceeding warranting that the hearing be reopened.Finally, we consider the effect of reopening the record in this case. Inconsidering whether it is fair to Oscar Renda to reopen the record here,our inquiry is whether it would suffer legal prejudice, i.e., beprejudiced in the preparation of its defense. Oscar Renda makes nospecific claim of prejudice to it from reopening the record. It simplycites the unfairness of offering the Secretary a second chance to obtaintestimony that Oscar Renda argues should have been more timely sought.Although we recognize that Oscar Renda’s complaint does not amount tolegal prejudice, \/see Genesee Brewing Co.\/, 11 BNA OSHC at 1518, 1983-84CCH OSHD at p. 33,763 (extra case preparation and similar inconveniencesdo not amount to legal prejudice), we do not consider the costsassociated with preparing a case to be a trivial matter. However, evenif we were to take these factors into consideration, when they aremeasured against the employee fatality and the numerous seriousviolations alleged by the Secretary here, they do not affect theconclusion that the principles of fundamental fairness and substantialjustice require that the record be reopened. \/Equitable Shipyards,Inc.\/, 12 BNA OSHC at 1290, 1984-85 CCH OSHD at p. 35,161. We find thatthe opportunity Oscar Renda will now have to cross-examine theSecretary’s witnesses and present a defense is sufficient to prevent itfrom being prejudiced by reopening the record.Turning to the dissent, we note that our colleague simply rejects ourapplication of the \”fairness and substantial justice\” test. She relies,in part, on the Supreme Court’s conclusion in \/Martin v. OSHRC and CF&ISteel Corp.\/, 499 U.S. 144, 155 (1991) that \”Congress intended todelegate to the Commission the type of nonpolicymaking adjudicatorypowers typically exercised by a court in the agency-review context.\”(Emphasis in original.) Our colleague further concludes that ourapplication of this test in an effort to insure the integrity of ourproceedings somehow is inconsistent with the Commission’s role of\”neutral arbiter\” as set forth in \/Cuyahoga Valley Ry. v. UnitedTransportation Union\/, 474 U.S. 3 (1985), and constitutes a dismissal ofthe standards of practice to which litigants are normally held. In ourview, she mischaracterizes and undervalues the roles of both the courtsand the Commission in presiding over litigation.We are mindful that, as Commissioner Montoya points out, under CF&ISteel the Commission’s role under the Occupational Safety and Health Actis essentially that of a court. Chief among the obligations of this rolemust be the function, inherent in our courts, of promoting justice andassuring fundamental fairness in proceedings before us. The principleson which we decide this case expressly inhere in the role of judicialbodies. They are not, as Commissioner Montoya suggests, creations of\”administrative\” or \”policy\” bodies. Thus, as noted above, the conceptof \”fairness and substantial justice\” is part of and derived from ourcourt system. \/See, e.g. Moore Federal Practice\/, paragraph 59.04[13].Our dissenting colleague does not question the wisdom with which weapply these principles to the facts here, but rather appears to be ofthe view that the principles themselves have no part in the deliberationof a judicial body. This view is assumed by the dissent without evidentreflection on either the longstanding principles of the judicial processor the manner in which these principles undergird, and provide atouchstone for, \”administrative\” agencies when they act in a\”quasi-judicial\” capacity.Similarly, our application of the \”fairness and substantial justice\”test does not represent an abrogation of \”any recognizable standards\” assuggested by our colleague. While concededly an inquiry into \”fairness\”is not susceptible to mathematical precision, this is so because it mustinclude examination of elements which may be both intricate andvariable. Yet as the Third Circuit has so aptly described the quest fordue process in \/Rogal v. American Broadcasting Companies, Inc.\/, 74 F.3d40, 44 (3d Cir. 1966):We have repeatedly emphasized that the requirements of due process arenot reducible to a static formula, but rather are sensitive to the factsand circumstances of a given case. While \”the fundamental requirement ofdue process is the opportunity to be heard at a meaningful time and in ameaningful manner[,] the concept is flexible, calling for proceduralprotection as dictated by the particular circumstance.\” \/Kahn v. UnitedStates\/, 753 F.2d 1208, 1218 (3d Cir. 1985) (citing \/Morrissey v.Brewer\/, 408 U.S. 471, 481 (1972)). The determination of the appropriateform of procedural protection requires \”an evaluation of all thecircumstances and an accommodation of competing interests. Theindividual’s right to fairness must be respected as must the court’sneed to act quickly and decisively.\” Eash, 757 F.2d at 570 (citationsomitted).Or, as the Supreme Court stated in \/Michell v. W.T. Grant Company\/, 416U.S. 600, 610 (1974): The requirements of due process of law \”are not technical, nor is any particular form of procedure necessary.\” Inland Empire Council v. Millis, 325 U.S. 697, 710 (1945). Due process of law guarantees \”no particular form of procedure; it protects substantial rights.\” \/NLRB v. Mackay Co.\/, 304 U.S. 333, 351 (1938). \”The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.\” \/Cafeteria Workers v. McElroy\/, 367 U.S. 886, 895(1961); \/Stanley v. Illinois\/, 405 U.S. 645, 650 (1972).Thus, while the inquiry may be less neat and predictable than ourcolleague fancies, it is not one we can simplify or avoid if we are tomaintain the integrity of our procedures. Indeed, rather than being anabrogation of standards, application of the test is essential to upholdthem and to foster the respect that the adjudicatory process must harborin order to fulfill its role in our system of government.[11] In short,the dissent does not recognize that the concepts on which we rely arederived from the judicial process itself to address circumstances, suchas those here, where issues are raised that bear on the integrity andneutrality of that process. As we proceed under these rules andconcepts, it is certainly possible that others may differ with theparticulars of our analysis or the conclusions we draw. The dissent,however, declines even to recognize the existence of such rules or toengage in the analysis required by the adjudicatory role of theCommission. Finally, and as a corollary to the above, contrary to ourdissenting colleague, reopening of the record here would not thrust theCommission into the policymaking role proscribed by the Supreme Court.We would not assume that by merely remanding this proceeding for furtherhearing we are thereby fixing the outcome or ensuring the \”success\” ofone party or the other. Nor do we consider such a remand as somehowusurping the Secretary’s prosecutorial discretion. Indeed, under theSupreme Court’s Cuyahoga decision, the Secretary may withdraw a citationat anytime. That is the express holding in Cuyahoga. We do not know whythe Secretary has not chosen to do so thus far in this case any morethan we know why he elected not to seek review of the judge’s decision.However, nothing in this decision forecloses the Secretary’s right todecline to pursue this case further by withdrawing the citation.[12]Accordingly, we vacate the judge’s decision and remand the case forreopening the record to permit, at the request of the Secretary, thetestimony of Compliance Officer McDavid and witnesses Espinoza andRojas, with appropriate interpretation, and further to permit theRespondent to cross-examine these witnesses and present such rebuttalevidence as is deemed appropriate.Dated: January 29, 1997————————————————————————MONTOYA, Commissioner, dissenting:I strongly disagree with the majority’s decision that this case beremanded for further proceedings on a reopened record. Not only did theSecretary seek no such relief from the Commission, but the majority hasmade no finding that Judge Stanley M. Schwartz abused his discretion indismissing these citations. Under these circumstances, I can only assumethat my colleagues are seeking to arrogate to themselves a share of theenforcement role that Congress intended to lie exclusively with theSecretary.The Secretary’s failure to prepare this case for trial was, of course,inexcusable. This more than explains why the Secretary did not seekreview of Judge Schwartz’ decision. Despite at least two weeks ofadvance notice that the compliance officer had been terminated, theSecretary did not even attempt service of a subpoena to secure herappearance until the night before the hearing. As for theSpanish-speaking witnesses, the failure of the Secretary to arrange foran interpreter tells me that these witnesses were not even interviewedby the Secretary in preparation for this trial. These failures are allthe more disturbing when one considers the severity of the accident thatled to the inspection, and the allegations that are made in thecomplaint. The majority apparently concurs in this view, as they havenot found that the judge abused his discretion by dismissing theSecretary’s citations. \/See Philadelphia Constr. Equip., Inc.\/, 16 BNAOSHC 1128, 1131, 1993 CCH OSHD paragraph 30,051, p. 41,295 (No. 92-899,1993)(\”A judge has very broad discretion in imposing sanctions fornon-compliance with Commission Rules of Procedure or the judge’s orders… In determining whether a sanction imposed by a judge is too harsh,the test is whether the judge abused his discretion.\”). \/See alsoSealtite Corp.\/, 15 BNA OSHC 1130, 1134, 1991-93 CCH OSHD paragraph29,398 , pp. 39,582-3 (No. 88-1431, 1991).Instead, the majority has said that \”fairness and substantial justice\”require that the record be reopened, thereby allowing the Secretary asecond opportunity to try this case. Certainly no one would deny thatthe family of the deceased employee has suffered a great personaltragedy. However, since the OSH Act itself provides no relief for thefamilies of affected employees, \/cf. Georgia-Pacific Corp.\/, 15 BNA OSHC1127, 1129 n.3, 1991-93 CCH OSHD paragraph 29,395, p. 39,576 n.3 (No.89-2713, 1991) (no basis for intervention found when former employeesought to represent interests of family members she alleged to besuffering from exposure to plant emissions), and since all collateralclaims brought by the families of the employees affected here haveapparently been resolved, it is entirely unclear to me to whom themajority believes the duty of fairness and substantial justice is owed.Is the majority announcing that fairness and substantial justice sofavor regulatory action as to compel the Commission and its judges toinsure the successful prosecution of an employer whenever a caseinvolves employee fatalities and allegations of serious violations? Doesthe majority intend for the Commission and its judges to excuse, ontheir own motion as here, all failures on the part of the Secretary’sprosecutors in such cases in the interest of fairness and substantialjustice?[13] Should the Secretary’s proof fail again upon the rehearingcontemplated by the remand order, will the majority conclude thatfairness and substantial justice require the continuedsua spontereopening of this record?Congress has expressly charged the Commission with \”carrying outadjudicatory functions under\” the Occupational Safety and Health Act of1970 (the OSH Act). 29 U.S.C. section 651(b)(3). In recent years, theSupreme Court has twice examined the Commission’s authority under thissection. In Cuyahoga Valley Ry. v. United Transportation Union, 474 U.S.3 (1985) the court characterized the OSH Act itself as \”a detailedstatutory scheme which contemplates that the rights created by the Actare to be protected by the Secretary.\” Id. at 6. Recognizing that \”[i]tis clear that enforcement of the Act is the sole responsibility of theSecretary,\” the Court went on to state that \”[t]he Commission’s functionis to act as a neutral arbiter.\” Id. at 7. In Martin v. OSHRC (CF&ISteel Corp.), 499 U.S. 144, 155 (1991) the Court repeated the \”neutralarbiter\” language of Cuyahoga while adding this further perspective: Insofar as Congress did not invest the Commission with the power to make law or policy by other means, we cannot infer that Congress expected the Commission to exercise its adjudicatory power to play a policymaking role … Consequently … we think … that Congress intended to delegate to the Commission the type of nonpolicymaking adjudicatory powers typically exercised by a court ….(emphasis in original). \/Id.\/ at 154.These current Supreme Court definitions of the Commission’s role havecorrected the mistaken belief, common to earlier court cases under theOSH Act, that the Commission is a conventional regulatory agency with apublic policy role to fulfill. In \/Brennan v. OSHRC (John J. GordonCo.)\/, 492 F.2d 1027, 1032 (2d Cir. 1974), for instance, the SecondCircuit stated that \”the right of the public must receive active andaffirmative protection at the hands of the Commission,\” a quotation thatcourt borrowed from \/Scenic Hudson Preservation Conf. v. F.P.C.\/, 354F.2d 608, 620 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966).[14] In\/CF&I Steel Corp.\/, 499 U.S. at 151, however, the Supreme Court made itclear that \”[u]nder the OSH Act … Congress separated enforcement andrulemaking powers from adjudicative powers, assigning these respectivefunctions to twoindependent administrative authorities. The purpose ofthis \”split enforcement\” structure was to achieve greater separation offunctions than exists within the traditional ‘unitary’ agency\” (emphasisin original).Rule 92(b) of the Commission’s rules, 29 C.F.R. 2200.92(b), states thata Commissioner should not direct review of a judge’s decision on his ownmotion unless the \”case raises novel questions of law or policy orquestions involving conflict in Administrative Law Judges’ decisions.\”However, since the majority has not identified an interested party towhom their announced duty of fairness and substantial justice is owed,they have failed to establish any recognizable standard by which the lawof this case can be applied to future practice. In the end, the fairnessand substantial justice rubric on which this decision rests cannotdisguise the fact that the majority is simply determined that theviolations alleged in this citation should be fully prosecuted. As aresult, I fear that this decision will merely serve to raise uncertaintyas to the Commission’s willingness to abide by its statutory role as theneutral arbiter of contested cases.Dated: January 29, 1997————————————————————————[1] Chairman Weisberg directed this case for review sua sponte, pursuantto section 12(j) of the Act, 29 U.S.C. section 661. The Chairman notesthat although letters from family members of the deceased workerobjecting to the judge’s decision and urging review may have initiallybrought the case to his attention, these letters were not accepted aspetitions for review.In the Chairman’s view sua sponte direction is not something that aCommissioner should do frequently, or even occasionally, but rather onlyrarely. Generally, when none of the parties in a case seek review,absent unusual circumstances, the judge’s decision should become a finalorder, and the parties should not be required to litigate further.Rule 92(b) of the Commission’s rules states that: In the absence of a petition for discretionary review, a Commissioner will normally not direct review unless the case raises novel questions of law or policy or questions involving conflict in Administrative Law Judges’ decisions. (Emphasis added.)29 C.F.R. 2200.92(b). Chairman Weisberg notes that his colleague,Commissioner Montoya, in citing and quoting from this rule in herdissenting opinion, neglected to include the word \”normally.\” This rulewas adopted by the Commission in 1976 in response to a particularCommissioner directing review in virtually every case to insure that thetext of the administrative law judge’s decision would be published. Inaddition, the Commission explained that this rule \”does not limit in anymanner a Commissioner’s right to direct review, but merely establishesadministrative guidelines for the exercise of that right.\” 41 FederalRegister No. 234 (Dec. 3, 1976) at 53015. In any event, the Chairman isin accord with the view that \/sua sponte\/ direction be exercised sparingly.[2] The Commission’s rules provide that a motion to postpone a hearingmust be received at least seven days prior to the hearing unless goodcause is shown for late filing. Rule 62(c), 29 C.F.R. 2200.62(c).[3] Ronald Sarnacki, the compliance officer present at the hearing,informed the judge that he had taken no part in the inspection of OscarRenda’s worksite.[4] A copy of the subpoena submitted by the Secretary in response to thejudge’s order indicates that the process server left a copy of thesubpoena at Ms. McDavid’s residence with her roommate on January 10,1994, at 6:45 p.m.[5] In its brief on Review, Oscar Renda also cites the \”fairness andsubstantial justice\” standard as applicable to the question whether toreopen the record.[6] We note here that our dissenting colleague’s concern with ourfailure to find abuse of discretion is misplaced in view of ourconclusion that the judge erred by applying the wrong legal standard.Accordingly, we had no occasion to decide whether the judge abused hisdiscretion.[7] Although service of the subpoena on Ms. McDavid’s roommate raised aquestion as to enforceability of the subpoena, McDavid never challengedit. \/See Lee Way Motor Freight\/, 3 BNA OSHC 1843, 1846, 1975-76 CCH OSHDparagraph 20,250, p. 24,144 (No. 7674, 1975) (Commission affirmedjudge’s denial of motion to revoke subpoena, in part, because \”[p]artiesto whom subpoenas are not directed lack standing to attack them\”).Moreover, adjudication of such questions is appropriately left to asubpoena enforcement proceeding. \/See Equitable Shipyards, Inc.\/, 12 BNAOSHC at 1293, 1984-85 CCH OSHD at p. 35,163. Accordingly, ourdisposition of this case does not include consideration of the now mootquestion of the sufficiency of service.[8] While the Secretary did not move to reopen the record to allowwitnesses Espinoza and Rojas to testify with appropriate translation,the lack of such translation and the inferences drawn by the judge as tothe testimony’s probity despite its unintelligibility constitute a partof the surrounding circumstances we must examine in order to properlyapply the fairness and substantial justice test. We also note that theCommission’s sua sponte direction authority permits disposition of anissue even in the absence of a party’s request.[9] Although it is not applicable to administrative proceedings, we notethat the Court Interpreters Act, which was enacted by Congress in 1978(28 U.S.C. section 1827) to provide for interpreters in Federal Courts,applies to the testimony of witnesses in civil matters. The Act providesin relevant part: The presiding judicial officers… shall utilize [an interpreter]… in judicial proceedings instituted by the United States, if the presiding judicial officer determines on such officer’s own motion or on the motion of a party that such party (including the defendant in a criminal case), or a witness who may present testimony in such judicial proceedings — (A) speaks only or primarily a language other than English; or (B) suffers from a hearing impairment… so as to inhibit such party’s comprehension of the proceedings or communication with counsel or the presiding officer, or so as to inhibit such witnesses comprehension of questions and the presentation of such testimony.\/Id.\/ at section 1827(d)(1).[10] While we are reluctant to impose on the respondent the consequencesof the Secretary’s failure to request an interpreter at the hearing, thejudge compounded the effect of this failure by his later treatment ofthe evidence in his decision. We emphasize that the principles relevantto the use of interpreters in Commission proceedings that we articulatehere are equally applicable to the witnesses of any party appearingbefore us. Finally, we note that our consideration of the use ofinterpreters here is fully consistent with other efforts by theCommission such as \”E-Z Trial,\” a simplified procedure utilized incertain types of cases, to make Commission procedures more \”userfriendly\” and the outcome of Commission cases less likely to bedistorted by legal technicalities or an imbalance in the legal resourcesof the parties.[11] As evidenced by the application of these principles in favor of therespondent rather that the Secretary in Equitable Shipyards, the pursuitof \”fundamental fairness and substantial justice\” is in the interest ofall litigants, and does not favor any one party in Commission proceedings.[12] We note that our dissenting colleague speculates on the status ofclaims that family members of the deceased worker may have raisedelsewhere, and appears to conclude that the resolution of these claimsmoots the matter here. The record does not contain specific informationon the nature of any collateral claims or their disposition. In anyevent, we simply note that the public interest in our proceedings is notsatisfied by the availability of any private remedies.[13] The majority’s willingness to ignore civil procedure becomes evenmore untenable when one considers that OSH Act section 12(g), 29 U.S.C.section 661(g), makes the Federal Rules of Civil Procedure applicable toCommission proceedings.[14] \/Brennan v. OSHRC (John J. Gordon Co.)\/, 492 F.2d 1027, 1032 (2dCir. 1974) remains relevant here, however, since the Second Circuitdecided that the Commission had abused its discretion by substitutingits judgment for that of an administrative law judge with respect to thereopening of a hearing record.————————————————————————OSHRC Home “