Docket No. 1889

HEEDE INTERNATIONAL, INC.

OSHRC Docket No. 1889

Occupational Safety and Health Review Commission

January 7, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on Chairman Moran's order directing review of a decision rendered by Judge David H. Harris. Judge Harris found Respondent in violation of the occupational safety and health standard published at 29 C.F.R. 1926.251(c)(5) and assessed the proposed $700 penalty.

We have examined the entire record and find no prejudicial error. We note in particular our agreement with the Judge's reasons for finding that Respondent was engaged in construction and thus covered by the cited construction standard. His reasons are expressed in the opinion he rendered in a companion case, Yanco Construction Co.,

Accordingly, it is ORDERED that the Judge's decision be and the same is hereby affirmed.

CONCURBY: CLEARY; MORAN

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur with the lead opinion insofar as it specifically approves of Judge Harris' reasons for holding that respondent was engaged in construction and hence subject to the standards at 29 CFR Part 1926. The lead [*2] opinion, however, does not address itself to an issue raised by Chairman Moran in his direction for review.

The direction for review invited submissions on two issues. One dealt with the propriety of the Judge's holding that respondent was engaged in construction. The other issue, however, dealt with the question of whether the penalty provisions of the Occupational Safety and Health Act apply when there is non-compliance with any standard published at 29 CFR Part 1926. This issue was not raised by the parties at any stage of the proceedings and was never considered by Judge Harris.

The second issue was nevertheless briefed by the parties before the full Commission in terms of the validity of the Secretary of Labor's adoption of the construction standards. In my view, the Commission lacks the power to review the validity of the Secretary of Labor's rulemaking. United States Steel Corp., Nos. 2675 & 4349 (November 14, 1974) (concurring opinion).

In any event, however, the essential point urged by respondent is that the construction standards were not adopted under the Construction Safety Act before the enactment of the Occupational Safety and Health Act of 1970 [*3] on December 29, 1970. Following notice and public procedure, the construction standards were adopted under the Construction Safety Act (40 U.S.C. section 327) by the Secretary of Labor before the effective date of the Occupational Safety and Health Act. Under the Construction Safety Act, the standards applied to Federal construction and most Federally assisted construction. The same standards were then subsequently adopted as "established Federal standard(s)" under section 6(a) of the Occupational Safety and Health Act and applied to the construction industry as a whole. Respondent argues that the construction standards are not "established Federal standard(s)" within the meaning of section 3(10) of the Act.

Section 3(10) defines the term "established Federal standard" as follows:

The term "established Federal standard" means any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act. [Emphasis added].

From the text alone, it is clear that the phrase "in force on the date of enactment of this Act" modifies "Act of Congress." [*4] The term "occupational safety and health standard" is separately modified by the words "presently in effect." These words seem to mean either: (1) standards in effect as of the effective date of the Act, or (2) standards which have current validity as distinguished from standards that are no longer in effect. It seems unlikely that the words mean standards in effect as of the date of enactment. If Congress wanted to place such a limitation it seems reasonable to conclude that it would have done so, as it did in its reference to legislative standards. It appears then that the Secretary has done what the conferees on the Occupational Safety and Health Act expected him to do concerning construction standards.

The conference report states the following:

The conferees intend that the Secretary develop health and safety standards for construction workers covered by Public Law 91-54 pursuant to the provisions of that law and that he use the same mechanisms and resources for the development of health and safety standards for all the other construction workers newly covered by this Act . . . H. Rep. 91-1765, 91st Cong. 2d Sess., 33 (1970) [Emphasis added].

Clearly, the [*5] conferees intended (1) that standards be developed under the Construction Safety Act with the help of a statutory advisory committee and with the use of notice and public procedure, and (2) that this same action be the basis of OSHA construction standards without duplicate procedures.

Thus, even conceding arguendo the Commission's authority to review the validity of the Secretary's rulemaking action in adopting the construction standards, which I do not, it is my view that the construction standards were lawfully adopted.

MORAN, CHAIRMAN, concurring: In view of the particular facts present in this case (the dismantling of a climbing crane which had been erected within the interior of a building under construction), I concur in the disposition herein ordered.

[The Judge's decision referred to herein follows]

HARRIS, JUDGE: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review a citation issued to Heede International, Inc., (hereinafter Heede) by the Secretary of Labor (hereinafter Complainant) pursuant to Section 9(a) of the Act and a Notification of Proposed Penalty thereon [*6] issued pursuant to Section 10(a) of the Act.

The citation issued on November 30, 1972 alleges that at a workplace under its ownership, operation or control, located at Valle Hermoso, Hormigueros, Puerto Rico, described as "dismantling of climbing crane," Respondent on September 21, 1972, was in violation of the standard at 29 C.F.R. 1926.251(c)(5) by reason of its "Failure to use correct number of U-bolt wire rope clips on a 7/8 inch wire rope of a motor crane used in the dismantling of a climbing crane, as specified on Table H-20 of 29 CFR 1926.251 for 7/8 inch wire ropes. (Table H-20 of 29 CFR 1926.251 indicates the use of four U-bolt wire rope clips for 7/8 inch wire ropes.)" In place of requiring abatement of the alleged violation, the citation recites that "Operation with motor crane discontinued immediately. (Crane was then removed from premises)." The citation charges that the alleged violation was a serious violation within the meaning of Section 17(k) of the Act and the Notification of Proposed Penalty, issued the same date, proposes that a civil penalty in the amount of $700.00 be assessed against Respondent.

Heed timely filed a Notice of Contest, dated December 14, [*7] 1972, wherein it contested the citation and the proposed penalty.

On December 26, 1972, Complainant filed his complainant wherein he amends the date of violation to September 20, 1972 and charges the violation alleged in said citation and prays assessment of a civil penalty in the sum of $700.00 (Compl. para. V. VI and VII). Said complaint alleges that one of Heede's employees was affected by the alleged violation and that such employee is not represented by an authorized employee representative (Compl. para. IX).

Heede's time to answer was extended to February 5, 1973 and the same was filed on February 8, 1973. Said answer admits that Heede was engaged in the sale, rental and servicing of power cranes (para. 3) and denies that it is engaged in the construction industry (para. 4). The alleged violation is denied (para. 6 and 7), service of the citation and Notice of Proposed Penalty are admitted (para. 8) and by way of affirmative defenses, Heede alleges that the Act is unconstitutional (para 1), that the complaint fails to comply with rule 29 CFR 2200.33(a)(2)(ii) and (iii), (para. 2) and with rule 29 CFR 2200.33(a)(3), (para. 3).

On January 31, 1973 the within matter [*8] was assigned to me for trial together with a matter entitled Secretary v. Yanco Construction Corporation, It appearing that the within matter and that pending against Yanco Construction Corporation (hereinafter Yanco), aforesaid, arose out of the same set of circumstances and that the interests of the parties would be better served thereby, the within matter and the said matter pending against Yanco were consolidated for trial by order dated January 31, 1973. Following a pre-hearing conference held on February 9, 1973, the consolidated hearing of the within matter and of the matter pending against Yanco, aforesaid, was held in San Juan, Puerto Rico on April 25 and 26, 1973.

After hearing the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact and conclusions of law.

The parties hereto stipulated and agreed that the correct corporate title of Respondent is Heede International, Inc. and that it is a corporation organized under [*9] the laws of the State of California, authorized to do business in Puerto Rico with its office at 5 San Patricio Plaza, Caparra Heights, Puerto Rico (Tr. 21); that it is engaged in the business of the sale, rental and servicing of tower cranes; that it imports into Puerto Rico, substantial quantities of materials; that it imports cranes into Puerto Rico which are built in the United States; that none of the equipment involved in these proceedings are owned by Heede; that its Puerto Rico sales average $1.5 million annually compared to its total annual sales of approximately $14 million; that the total number of its employees annually averages 300 of whom 10 are employed in Puerto Rico; that it is less than average in size among companies similarly engaged; that there are no prior violations of health or safety laws of record and that the citation herein was posted as soon as received and still remains posted upon its premises (Tr. 21-24). No Heede employees were present except those appearing as witnesses (Tr. 24-25).

Heede's motions to dismiss the complaint for failure to comply with rules 29 CFR 2200.33(a)(2)(ii) and (iii) and 2200.33(a)(3) were denied (Tr. 5-14), and [*10] its affirmative defense that the Act is in violation of the Constitution, although not argued at the hearing is denied since this tribunal does not have jurisdiction nor authority to declare an Act of the Congress to be in violation of the Constitution. See, Central Nebraska Public Power and Irrigation District v. FPC, 160 F.2d 782 (8 Cir. 1947), cert, denied 332 U.S. 765.

The standard alleged to have been violated here appears at 37 FR 27521 and in pertinent part, states:

1926.251 Rigging equipment for material handling.

(5) When U-bolt wire rope clips are used to form eyes, Table H-20 shall be used to determine the number and spacing of clips.

Table H-20 -- Number and Spacing of U-bolt Wire Rope Clips, is set out at 37 FR 27528 and in pertinent part states:

Improved plow steel, rope diameter inches 7/8 -- Number of Clips Drop forged Other Material 4-5 -- Minimum Spacing (inches) 5 1/4.

Heede, upon the factual circumstances detailed in Secretary v. Yanco Construction Corporation, herein [*11] and the operator and chauffeur of the motorized crane furnished to it by Yanco and the Yanco employees assigned to it to assist in the operation, were, during the dismantling operation, under the direction and control of Heede and its employees, as were the said motorized crane and the climbing crane being dismantled. During this operation Heede was engaged in the construction industry.

There is ample probative evidence that the wire rope sling was 7/8 inches in diameter (Tr. 141; 175-176) and that there were not four U-bolt clips to form the sling as the standard requires. In addition to the admission that there were but three U-bolt clips made by Heede's Area Manager, based upon a joint investigation conducted by Yanco and Heede officials on the day of the occurrence (Tr. 162; 229-230), the Complainant's Compliance officer, who conducted an investigation into the cause of the fatalities on September 21, 1972, the next day, testified that he could find but three marks upon the wire rope to indicate the positions of the U-bolts which formed the sling (Tr. 178; 188-190). It is significant, and persuasive of the fact that there were less than four U-bolts holding the sling, that [*12] Heede's maintenance mechanic, who was in charge of the operation, called as a witness by Complainant, failed to deny that there were less than four U-bolt clips (Tr. 91). In the light of Heede's mechanic's forthright statements that he was in charge of dismantling the climbing crane (Tr. 106; 83; 109) and his detailing of the manner in which he directed the work of dismantling and of the operations of the chauffeur and operator of the motorized crane as well as of the two men assigned to him by Yanco's Project Manager (Tr. 91-94), I find it difficult to afford any weight to his statements that, although he came within eight feet of the motor crane he did not inspect it or check its equipment and that he did not touch its main cable, nor was he sure of the size of that cable or of the number of U-bolt clips used to form the cable into the sling (Tr. 91; 107-108) which was to be used to lower the counterweight of the climbing crane (Tr. 75).

The sworn testimony of the Area Managers for Yanco and Heede (Tr. 162; 229-230) were received as statements against the interest of their respective employers. Albeit, their testimony is technically hearsay, being based in part, upon [*13] the statements of others, their deductions as to the number of U-bolt clips used to form the 7/8 inch wire rope sling were based upon their experience with the use of the type of equipment under consideration. In addition, their testimony is reliably corroborated by the testimony of the compliance officer concerning the physical condition of the wire rope which he observed on the day following the failure of the sling (Tr. 178, 188-190). See, Willapoint Oysters, Inc. v. Ewing, 174 F. 2d 676 (9 Cir. 1949); Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197 (1938).

Heed moved to strike the testimony of the chauffeur and of the operator of the motor crane as to the number of U-bolt clips on the wire rope sling (Tr. 253; 256) which was offered by Complainant on rebuttal. The purpose of this testimony was to support the testimony of the Compliance Officer that there were but three marks on the wire rope vis-a-vis his notation on the reverse of the photograph (P-8), made by him during or immediately following his inspection, received in evidence as exhibit Y-2, and his explanation thereof during his testimony (Tr. 260-262). Heede's motion to strike the said testimony is denied. [*14] However the testimony of the chauffeur and of the operator as to the number of U-bolt clips has been limited to the purpose for which it was offered and has been given no direct weight or application to proof of the number of U-bolt clips on the wire rope sling, for the following reasons.

The testimony of the operator (Velez), offered on Complainant's direct case was excluded on timely objection raised by Heede that the summary of this witness's testimony, filed on April 4, 1973 pursuant to the discovery order dated March 27, 1973, made no reference to the fact that this witness was expected to testify to the number of such U-bolt clips (Tr. 123-134). A similar objection and a similar ruling were made on an effort to elicit similar testimony from the Superintendent of the lessor of the motor crane (Gillette), (Tr. 30-32). Heede was content to accept the court's suggestion that Complainant temporarily withdraw these witnesses to afford Heede an opportunity to interview them on this aspect (Tr. 128-131). The court's suggestion was rejected by Complainant (Tr. 133-134). No offer of proof was tendered (Tr. 134-135) nor was any effort made to lay a foundation for testimony [*15] concerning the number of U-bolt clips applied to the wire rope sling on Velez's direct testimony, although full opportunity so to do was afforded (Tr. 155-157).

Complainant argues that Rule 402 of the Rules of Evidence for the United States Courts and Magistrates * requires the admission of the aforesaid proffered testimony and that "Neither the Federal Rules of Civil Procedure nor the Rules of the Commission directly or indirectly provide for the exclusion of the offered testimony -- "(Compl. Br. pp. 4-5). This contention is erroneous.

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* Not as yet approved by the Congress and therefore not yet effective.

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29 CFR 2200.54 provides for the issuance of appropriate orders should any party fail to comply with an order permitting discovery, that such discovery includes directions for the exchange of information pursuant to 29 CFR 2200.51(a), requires no extended argument. Appropriate orders, in the event of failure to comply with discovery directions are not further defined in the rules in 29 CFR 2200 but are specifically [*16] delineated under Rule 37(b)(2)(B) of the Federal Rules of Civil Procedure. See 29 U.S.C. 661(g). Having perforce determined that the Complainant, in the particulars hereinabove referred to, had failed to comply with the court's direction, a sanction specifically permitted under Rule 37(b)(2)(B) was applied, i.e., prohibiting the introduction in evidence of the testimony which was not included in the summary filed by the Complainant. See, Societe Internationale v. Rogers, 357 U.S. 197 (1958); Halverson v. Campbell Soup Co., 374 F. 2d 810 (7 Cir. 1967); In re Societa Italiana de Armamento, 210 F. Supp. 444 (S.D. La. 1962); Bernat v. Pa. R.R., 14 FRD 465 (E.D. Pa. 1953); 6 Wigm. 1859 (e), p. 471, n. 3. With reference to the testimony of the chauffeur (Fernandez), it was offered for the first time on rebuttal and was received for the purpose for which it was introduced (Tr. 256).

Under the circumstances herein, I find that the chauffeur and operator of the motor crane and the two Yanco employees assigned to assist Heede's maintenance mechanic, were, for the purposes of the Act, performing the duties and functions of employees of Heede. See, Ira Holliday [*17] Logging Company, Inc.

I further find that the alleged violation was a serious violation within the meaning of Section 17(k) of the Act. See, Crescent Wharf and Warehouse Company,

In view of the foregoing and having duly considered the gravity of the violation, the good faith of Respondent, its size, and its history of previous violations and good cause therefore appearing, it is ORDERED that:

1. Heede's motion to strike the testimony of Juan Cabrera Velez at Tr. 255-256 and the testimony of Daniel Fernandez Tr. 253-254 be and the same is hereby denied.

2. The allegation of the citation herein that Heede violated the standard at 29 CFR 1926.251(c)(5) as amended, by and the same is hereby confirmed.

3. The penalty proposed herein in the sum of $700.00 be and the same is confirmed as reasonable and assessed against Heede.