“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?4487 \u00a0 R.C. DIVING COMPANY, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 25, 1981DECISIONBEFORE: CLEARY, Chairman;BARNAKO and COTTINE, Commissioners.BY THE COMMISSION:??????????? A decision of Administrative Law Judge Erwin L. Stulleris before the Commission for review pursuant to section 12(j), 29 U.S.C. ?661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678(?the Act?). Citations were issued to ?R.C. Diving? alleging violations of theAct for noncompliance with certain occupational safety and health standardsregulating commercial diving operations. Respondent, R.C. Diving Co., Inc.,timely contested the citations. At the hearing, Respondent moved to dismiss thecitations on the ground that the Secretary of Labor (?Secretary?) failed toestablish the necessary employment relationship between R.C. Diving Co., Inc.and the workers allegedly exposed to the cited conditions. Judge Stullergranted the motion to dismiss. The Secretary petitioned for review of thatdecision, and the petition was granted by Chairman Cleary. For the reasons thatfollow, we reverse the judge and remand the case for further proceedings.I??????????? In November of 1977, OSHA compliance officer Jack Mathewsinspected the Sea Otter 75, a boat anchored in Puget Sound near Port Townsend,Washington. During the inspection he observed three men working on or from theboat. Their work involved the ?harvesting? of geoducks?large edible clams foundin the waters off the State of Washington. Mathews testified that the workerwho was ?in charge,? Mr. Davey, stated that the men aboard the boat ?workedfor? Rod Carew.[1]Asserting that Davey?s statement constituted inadmissible hearsay evidence, theRespondent objected to its admission. In response, the Secretary stated he wasintroducing the evidence only to show whether there was conversation or silenceat a given time and not to establish the statement?s veracity. The judgeadmitted the evidence for that purpose.??????????? At the conclusion of the Secretary?s case?which includedMathew?s testimony on the merits of the alleged violations?the Respondentsubmitted its motion to dismiss contending that the Secretary did not prove theRespondent was the workers? employer. The Secretary asserted that for thepurpose of establishing that a conversation took place Davey?s statementconstituted admissible hearsay but for the purpose of establishing anemployment relationship the statement constituted an admission. The Secretaryalso asserted that Davey?s statement established the prima facie case of anemployment relationship.??????????? The judge put the compliance officer back on the standfor questioning from the bench. The compliance officer again testified that Mr.Davey said the men aboard the boat worked for Mr. Carew and that Mr. Carewowned the boat. The judge announced that he considered Mr. Davey?s statementthat the men worked for Mr. Carew as record evidence although he was silentabout the statement that Rod Carew owned the boat. The judge then suspended thehearing to allow the parties an opportunity to submit briefs on theRespondent?s motion to dismiss.??????????? In his brief to the judge, the Secretary contended thatMr. Davey?s statements were admissible as non-hearsay admissions under theFederal Rules of Evidence, Rule 801(d)(2).[2] The Secretary assertedthat on the basis of those statements he satisfied the prima facie case of anemployment relationship.??????????? In its brief, the Respondent asserted that the Secretarydid not prove that R.C. Diving Co., Inc. was the employer of the workersallegedly exposed to the cited conditions. It argued that because Davey?sstatements were not initially offered for their content the Secretary could notlater depend on them to establish the fact of an employment relationship. Italso contended that its objection to the compliance officer?s testimony appliedwith equal force when the judge questioned the compliance officer towards theclose of the hearing. Further, the Respondent asserted that before the judgecould consider the statements as exceptions to the hearsay rule based on Mr.Davey?s status as an employee\/agent the Secretary had to, but did not,independently establish the existence of an employment\/agency relationshipbetween Mr. Davey and the Respondent corporation.??????????? In his decision, the judge summarily stated there was noevidence that R.C. Diving Co., Inc. was the employer that committed the allegedoffenses. He did not note whether he considered the compliance officer?stestimony about Mr. Davey?s statements as record evidence. The judge vacatedthe citations and notifications of proposed penalty.??????????? The Secretary argues on review that the judge erred bothin finding that the Secretary did not satisfy his burden of proving that theRespondent company was responsible for the cited violations and in vacating thecitations. The Secretary contends that because Mr. Davey stated that thepersons aboard the boat worked for Mr. Carew and because the Respondentindicated that Mr. Carew did his business through the corporation R.C. DivingCo., Inc., Mr. Davey?s statement should be interpreted to mean that the menworked for the Respondent corporation. Finally, that the workers consideredthemselves employees of R.C. Diving Co., Inc., the Secretary asserts,established a prima facie case that the Respondent was the workers? employer.??????????? The Respondent?s arguments on review essentially mirrorthose presented to the judge: the Commission does not have jurisdiction becausethe Act applies only to employer-employee relationships and the Secretaryfailed to prove an employment relationship in this case. Specifically, theRespondent argues that the Secretary did not offer any admissible evidence toestablish an employment relationship, Mr. Davey?s statements constitutedinadmissible hearsay evidence, and Mr. Davey?s statements could not beconsidered admissions by an agent because the Secretary failed independentlyestablish an agency relationship.II??????????? We treat a motion to dismiss as a motion for involuntarydismissal under Rule 41(b) of the Federal Rules of Civil Procedure.[3] In Commission cases a Rule41(b) motion should be granted only if the evidence preponderates against theSecretary. Williams Enterprises, Inc.,79 OSAHRC 24\/B5, 4 BNA OSHC 1663, 1976?77 CCH OSHD ? 21,071 (No. 4533, 1976); Harrington Construction Corp., 77 OSAHRC7\/B3, 4 BNA OSHC 1471, 1976?77 CCH OSHD ? 20,913 (No. 9809, 1976).[4]??????????? Reviewing the record compiled thus far, we conclude thatthe evidence does not preponderate against the Secretary on the employmentissue. The compliance officer?s testimony with respect to Mr. Davey?s assertedstatements, regardless of its hearsay nature, was admissible and constitutedprobative evidence. See Hurlock RoofingCo., 79 OSAHRC 93\/A2, 7 BNA OSHC 1867, 1979 CCH OHSD ? 24,006 (No. 14907,1979). Because hearsay evidence is admissible in Commission proceedings, Metro-Mechanical, Inc., 75 OSAHRC 72\/A2,3 BNA OSHC 1350, 1974?75 CCH OSHD ? 19,795 (No. 3518, 1975); see Richardson v. Perales, 402 U.S. 389(1971), we look beyond the characterization of Davey?s statements as allegedadmissions and determine whether they are sufficient to establish the existenceof an employment relationship. Mr. Davey?s statement that the workers deemed?Rod Carew? to be their employer is relevant in determining the existence of anemployment relationship.[5] Griffin & Brand of McAllen, Inc., 78 OSAHRC 48\/C13, 6 BNA OSHC1702, 1978 CCH OSHD ? 22, 829 (No. 14801, 1978). Moreover, that the workerswere aboard a boat owned by ?Rod Carew? is further support for a finding of anemployment relationship.??????????? When the Respondent moved to dismiss the case it hadneither offered any rebuttal evidence nor attacked the compliance officer?scredibility. Further, in his decision the judge did not suggest he had reasonto doubt that witness? veracity. The record thus far indicates that theSecretary established an employment relationship sufficient to survive a motionfor involuntary dismissal under Rule 41(b).??????????? We conclude that the judge erred in granting the Respondent?smotion to dismiss.[6]Accordingly, we remand the case for further proceedings consistent with thisdecision.SO ORDERED?FOR THE COMMISSION:?RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATED: FEB 25, 1981\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?4487 \u00a0 R.C. DIVING COMPANY, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: March19, 1982DECISIONAND ORDER ON REMANDAPPEARANCES:WILLIAM W. KATES,Esquire Office of the Solicitor U.S. Department of Labor8003 FederalOffice Building Seattle, Washington 98174Attorney forComplainant\u00a0MARK E. FORTIER,Esquire Kargianis & Austin2120 PacificBuilding Seattle, Washington 98104Attorney forRespondent?DECISION??????????? The Decision in this case was filed on June 15, 1978. OnFebruary 25, 1981, the Commission entered its decision remanding the case forfurther proceedings ?consistent with this decision?. A second hearing in thiscase was held on May 5, 1981.??????????? The Commission Decision held in part that an employmentrelationship existed and that Rod Carew was the employer. However, theCommission appeared to condition this conclusion on my finding concerning thecompliance officer?s credibility. After hearing his testimony and witnessinghis demeanor while testifying, I find that the compliance officer?s testimonywas highly credible. Therefore, I must conclude that an employment relationshipexisted and that Rod Carew was the employer and the Respondent in this case.??????????? The only evidence received in this case was the testimonyof the compliance officer. This has already been held to be credible.Therefore, all facts stated in this testimony are found to be facts in thiscase.??????????? On November 3, 1977, the compliance officer and Mr. EarlLawrence, a diving consultant, inspected the Respondent?s vessel ?Sea Otter 75?which was anchored near Indian Head Point near Port Townsend, Washington. Atthe time the Respondent?s employees were engaged in harvesting Geoducks, whichare large clams. As a result of the inspection, on November 15, 1977 theSecretary issued two citations charging the Respondent with five violations ofthe commercial diving operation?s safety standards of the Occupational Safetyand Health Act.[7]The Respondent has denied the charges.??????????? The Respondent has denied jurisdiction. However, theevidence establishes that the Respondent was an employer with employees engagedin a business that affects commerce within the meaning of the Act. Therefore,jurisdiction has been established.??????????? At the time of the inspection[8], three of the Respondent?semployees were aboard the vessel; two divers and a tender. The vessel operatedas a platform from which surface supplied air was pumped down to the diversthrough two hundred feet of air line. The divers searched the bottom of PugetSound seeking Geoducks buried in the sand. The divers did not have a two-wayvoice communication system. Nor was each diver continuously tended while in thewater.??????????? During the course of the trial, the Respondent admittedthe violative conditions concerned in Citation 1, Item 1 and all of the itemsin Citation 2. In addition it was admitted that the Respondent has knowledge ofthese violative conditions and that employees had access to the hazards.[9]OPINION??????????? The inspection was fair. The Respondent?s employee incharge did not object to the inspection and therefore waived any right torequire a search warrant. The evidence established each of the violations asalleged. In each instance the employer had knowledge of these conditions andthat employees were exposed to the areas of danger. There was a substantialprobability that the violative conditions alleged in Citation No. 1 couldresult in serious physical harm or the death of one or more of the employees.Therefore, these citations will be affirmed as alleged.??????????? The evidence indicates that the Respondent had a smallbusiness and no previous history of violations. There was no indication of badfaith on its part. Therefore, after considering this and the gravity of theviolation it is concluded that the proposed penalties are appropriate.ORDER??????????? The citations, as amended, and the proposed penalties areAFFIRMED. Total penalties of $240 are ASSESSED.?ERWIN L. STULLERJudgeDated: February 17, 1982[1]According toa statement of Respondent?s counsel, R.C. Diving Co. Inc., is a corporation ?ownedby Rod Carew and his wife.?[2]ARTICLE VIII.HEARSAYRule 801Definitions(d) Statementswhich are not hearsay.?A statement is not hearsay if?(2) Admission byparty-opponent.?The statement is offered against a party and is(D) a statement byhis agent or servant concerning a matter within the scope of his agency oremployment, made during the existence of the relationship.[3]Unless theCommission adopts a different rule, the Federal Rules of Civil Procedure applyto Commission proceedings. Section 12(g) of the Act, 29 U.S.C. ? 661(f);Commission Rule 2(b), 29 C.F.R. ? 2200.2(b). There is no Commission Rulegoverning motions to dismiss. Thus, we apply Rule 41(b) of the Federal Rules ofCivil Procedure which states:Rule 41. Dismissalof Actions(b) InvoluntaryDismissal: Effect Thereof. . . . After the plaintiff, in an action tried by thecourt without a jury, has completed the presentation of his evidence, thedefendant, without waiving his right to offer evidence in the event the motionis not granted, may move for a dismissal on the ground that upon the facts andthe law the plaintiff has shown no right to relief. The court as trier of thefacts may then determine them and render judgment against the plaintiff or maydecline to render any judgment until the close of all the evidence. . . .[4]TheCommission has consistently cautioned against granting a motion to dismissbefore both parties have rested. In our view the possibility of a remand andunnecessary delay is greatly enhanced by a dismissal ordered at the close ofthe Secretary?s case. Compare Texland DrillingCorp., 80 OSAHRC ??, 9 BNA OSHC 1023, 1980 CCH OSHD ?24,954 (No. 76?5307,1980) with P & Z Co., 77 OSAHRC211\/F5, 6 BNA OSHC 1189, 1977?78 CCH OSHD ?22, 413 (No. 76?431, 1977).[5]The judge?sdecision suggests that the judge may have discounted the evidence because heviewed it as pertaining to Rod Carew and not to the Respondent corporation,R.C. Diving Co., Inc. In its opening statement at the hearing, the Respondentasserted that Rod Carew and his wife were the owners of the corporation ?R.C. DivingCo., Inc.?. As the Secretary argues, inasmuch as the Respondent stated that thecorporation was owned by Rod Carew and his wife, a sufficient nexus wasestablished between Rod Carew and the Respondent corporation to permit us torelate Mr. Davey?s statement about ?Mr. Carew? to the Respondent corporation.Logically, when a corporation is owned by one or a very few persons an employeemight readily refer to the individual(s), rather than the corporation, as theemployer. Thus, the judge should have related Mr. Davey?s statements to theRespondent.[6]CommissionerBarnako concludes that the Secretary failed to establish an employmentrelationship sufficient to survive a motion for involuntary dismissal underRule 41(b). He agrees with Respondent that Mr. Davey?s statement does notconstitute an admission, see UnitedStates v. Pacelli, 491 F.2d 1108, 1117 (2nd Cir. 1974), cert. denied, 419 U.S. 826; Gallo v. Crocker, 321 F.2d 876, 877 (5thCir. 1963), and concludes instead that the compliance officer?s testimony withrespect to Mr. Davey?s asserted statement is hearsay.CommissionerBarnako would not make a finding based solely on uncorroborated hearsay. Hurlock Roofing Co., OSAHRC 93\/A2, 7 BNAOSHC 1867, 1874, 1979 CCH OSHD ?24,006 at 29,150 (No. 14907, 1979)(concurrence). Because the hearsay testimony of the compliance officer is theonly evidence relating to the employment status of the workers, CommissionerBarnako concludes that the Secretary did not satisfy his burden of proof onthat issue. Furthermore, Commissioner Barnako would not rely, as do hiscolleagues, on the evidence that the workers were aboard a boat owned by RodCarew to establish an employment relationship since this does not support aconclusion that the workers were employees within the meaning of the Act.[7]After theoriginal citations were issued, an amendment to the Complaint and Citation 1,Item 1 was allowed. A description of the alleged violations, the proposedpenalties, and the safety standards concerned, as amended, are as follows:Citation 1, Item 1(Serious)An operatingtwo-way voice communication system was not used between dive team member onboard ?Sea Otter 75? (dive location) and diver at bottom in approximately 20feet salt water off Indian Head Point, opposite Port Townsend. Surface suppliedair diving operation harvesting geoducks.in violation of 29CFR 1910.422(c)(1)(i)Penalty Proposed:$14029 CFR1910.422(c)(1)(i) provides:An operationaltwo-way voice communication system shall be used between each surface-supplied airor mixed-gas diver and a dive team member at the dive location or bell (whenprovided or required).Citation 1, Item 2(Serious)A surface suppliedair diver was not being continuously tended in that the tender aboard divelocation ?Sea Otter 75? off Indian Head Point, Port Townsend, was not keepingthe slack out of the lines in order to feel the pull signals on the airhose\/lifeline from the diver. The tender was not maintaining a proper tensionby hand at all times on the air hose\/airline.in violation of 29CFR 1910.425(c)(1)Penalty Proposed:$10029 CFR1910.425(c)(1) provides:Each diver shallbe continuously tended while in the water.Citation 2, Item 1(Other)An emergency aidlist was not kept at the dive location, ?Sea Otter 75? with the telephoneon-call numbers of the following: (a) an operational compression chamber, (b)accessible hospitals, (c) available physicians, (d) available means oftransportation or (e) U.S. Coast Guard Reserve Coordination Center.in violation of 29CFR 1910.421(b)Penalty Proposed:none29 CFR 1910.421(b)provides:A list shall bekept at the dive location of the telephone or call numbers of the following:(1) an operational decompression chamber (if not at the dive location); (2)accessible hospitals; (3) available physicians; (4) available means oftransportation; and (5) the nearest U.S. Coast Guard Rescue CoordinationCenter.Citation 2, Item 2(Other)The employer didnot maintain a Safe Practices Manual and the Manual was not available at thedive location to each dive team member.in violation of 29CFR 1910.420(a)Penalty Proposed:none29 CFR 1910.420(a)provides:The employer shalldevelop and maintain a safe practices manual which shall be made available atthe dive location to each dive team member.Citation 2, Item 3(Other)The records ofdive information including: date, time, location, dive team members\/person incharge, diving modes, general nature of work performed, approximate underwaterand surface conditions and a maximum depth bottom for each diver was notavailable and properly maintained aboard ?Sea Otter 75? on date of inspection.in violation of 29CFR 1910.423(d)(1)(i)Penalty Proposed:none29 CFR1910.423(d)(1) provides:The followinginformation shall be recorded and maintained for each diving operation: Namesof dive team members including designated person-in-charge; date, time, andlocation; diving modes used; general nature of work performed; approximateunderwater and surface conditions (visibility, water temperature and current);and maximum depth and bottom time for each diver.[8]Theviolations were alleged to have taken place at the time of the inspection onNovember 3, 1977. The citations charge that the Respondent failed to complywith commercial diving operation?s safety regulations in violation of Section654(a)(2) of the Occupational Safety and Health Act (29 U.S.C. 651 et seq.).Citation No. 1 charges two serious violations of the Act. Citation No. 2charges three nonserious violations of the Act. The Respondent filed a timely noticeof contest. At that point the Commission acquired jurisdiction over the subjectmatter under Section 659 of the Act.[9]Tr. 16 and17”