Docket No. 49

CONSTRUCTORA METALICA, INC.

OSHRC Docket No. 49

Occupational Safety and Health Review Commission

September 13, 1972

[*1]

Before: MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On May 19, 1972, Judge Jose Saul issued his recommended decision and order in the instant case, affirming the Secretary's citation for serious violation and the proposed penalty in the amount of $750.00.

On June 2, 1972, I directed that the proposed decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the briefs and exceptions filed by the parties and has considered the entire record. We do not adopt the Judge's recommended decision and order.

Review was directed in this case in order to determine whether prejudicial error was committed by the Judge in his rulings and whether substantial evidence on the record as a whole supports the decision and order.

Section 10(c) of the Act provides, in relevant part, that ". . . the Commission shall afford an opportunity for a hearing (in accordance with section 554 of Title 5, United States Code. . . ." That section of the Administrative Procedure Act as well as [*2] this Commission's Rules of Procedure n1 provide that notice of the time, place, nature of hearing, the legal authority and jurisdiction under which the hearing is to be held, and the matters of fact and law asserted shall be given to all parties to the proceeding. In the instant case, despite the fact that the Judge has rendered a recommended decision and order, the record establishes that notice of hearing was never given to the parties and that a hearing, as required by law, supra, was never convened.

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n1 29 CFR 2200.31.

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In his decision, Judge Saul states that, "By letter from the Hearing Examiner dated October 29, 1971, addressed to the parties of record, this matter came on for hearing before me on November 16, 1971, in Hato Rey, Puerto Rico." The above-referenced letter states in part that ". . . a prehearing conference is hereby set for Tuesday, November 16, 1971, at 2:00 P.M., for the purpose of expediting the proceedings in this case. . . ." Pre-hearing conferences are provided for by the Commission's [*3] regulations n2 for the purpose recited in the Judge's letter. However, that document does not provide notice of a "hearing." Rather, it apprises the parties of the time and place for a pre-hearing conference.

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n2 29 CFR 2200.22.

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In conformity with the information contained in the letter of October 29, Judge Saul convened the "hearing" by stating, "Let the record show that it is 2:20 P.M. of November 16, 1971, and I'm opening a pre-hearing conference in the case of Constructora Metalica, Inc., Respondent, Docket No. 49." The conference exceeded three hours n3 in duration and toward its conclusion, complainant's attorney moved that the conference serve as a hearing. Judge Saul thereupon inquired as follows:

Could we stipulate that the testimony we have received in the record here in this so-called pre-hearing conference is the same testimony that would have been received in the hearing and there's no need to set another hearing?

Respondent's representative agreed to this "stipulation." However, we find [*4] that the Judge's inquiry and resulting ruling constituted prejudicial error which respondent's concurrence cannot correct. "Due process in an administrative hearing includes a fair trial, conducted in accordance with fundamental principles of fair play and applicable procedural standards established by law. Administrative convenience . . . cannot override this requirement." Russell-Newman Mfg. Co. v. N.L.R.B., 320 F.2d 980, 984 (5th Cir., 1966) and authority cited therein. Accordingly, we find that notice of hearing was never accomplished and that a lawful hearing was not held.

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n3 See discussion of the "hearing," infra.

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Assuming, arguendo, that notice of hearing was accorded the parties and that a formal hearing was assembled, we conclude that prejudicial procedural error occurred. A Judge, presiding at a hearing, has among his functions, the duties of regulating the course of the hearing, administering oaths, examining witnesses, ruling on evidence and generally conducting a fair hearing. n4 However, [*5] excessive or improper participation of examiners may amount to denial of a fair hearing. n5 In the instant case, the transcript of the "hearing" reveals a continuing pattern of conduct by the Judge, in conjunction with complainant's attorney, which operated to deprive respondent, which was not represented by an attorney, of a fair hearing. n6 The following exchange is instructive in this regard:

HEARING EXAMINER. Let's mark it as an Exhibit and we will make arrangements with the reporter to have these people provided with copies.

COMPLAINANT'S ATTORNEY. Is there any question as to the authenticity?

HEARING EXAMINER. There's no question as to the authenticity and their source.

COMPLAINANT'S ATTORNEY. In other words, Mr. DeJoie agreed that they may be received in evidence.

HEARING EXAMINER. For whatever evidentiary haft they may offer.

RESPONDENT'S REPRESENTATIVE. I'm not a lawyer, I'm just here "ad libbing". I see that we're getting too technical. I'll come in with a lawyer if I think I'm going to lose my neck here.

HEARING EXAMINER. All we're trying to stipulate here is that this is the Report which the "Fondo del Seguro" gathered in connection with the accident. [*6] It doesn't mean stipulating that everything here is true.

RESPONDENT'S REPRESENTATIVE. How can I give my opinion. I have to say yes. I don't know if this is going to be used against me at a later date; I don't know (Tr. 12).

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n4 Administrative Procedure Act, 5 U.S.C. 566(c); Commission Rules of Procedure, 29 CFR 2200.21.

n5 Davis, Administrative Law 9, sec. 10.02 (1958).

n6 See Russell-Newman Mfg. Co. v. N.L.R.B., supra.

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With respect to the proof of documents, swearing of witnesses, examination of witnesses, ruling on admissibility of evidence, and on witnesses' qualifications as experts, the Judge's conduct of the hearing misled respondent. The excerpt cited above demonstrates the unfamiliarity of respondent's representative with procedural matters and the Judge's failure sufficiently to assist him in order to provide a fair hearing.

Throughout the proceeding the only witness administered an oath by the Judge was respondent's engineer. None of complainant witnesses were sworn (Tr. 48, 17, 21, 26).

Similarly, [*7] the only witness examined at length by Judge Saul was this engineer, who was also cross-examined by complainant's attorney (Tr. 48, 53). Respondent's representative was not accorded the opportunity to cross-examine complainant's witnesses (e.g. Tr. 21).

The only evidence excluded by the Judge was a technical manual which respondent sought to introduce. It was excluded because, as Judge Saul stated, "I doubt very much I have the engineering qualifications to understand that book" and because "I'm in no position to evaluate the book" (Tr. 66, 68). An inquiry into the relevancy of the evidence, to determine whether it should have been excluded, would have been appropriate, but exclusion for the reason given constitutes error.

Judge Saul received into evidence the curriculum vitae of three of complainant's witnesses and qualified them as experts ". . . on the subject which they may be called upon to testify" (Tr. 15). By this broad ruling, he accorded substantial weight to virtually any statement related to occupational safety and health made by these witnesses, without regard to whether their knowledge and experience qualified them with respect to the particular matter [*8] under consideration. Complainant's attorney challenged the expertise of respondent's witness, and although his testimony was (correctly) received by the Judge, the weight to be accorded the testimony was made an issue. In this instance Judge Saul again failed to use his undoubted authority to ensure that respondent was provided a fair hearing.

The record demonstrates that, had the requirements of a hearing been complied with, the proceeding was still permeated with procedural error and was conducted in such a manner as to deny respondent of a fair hearing.

In light of our findings herein, we need not reach the issue of whether substantial evidence on the record as a whole supports the decision and order. Respondent has been deprived of its right to a hearing and was treated unfairly in the forum. In these extreme circumstances, and because the cited violation is no longer continuing, we do not believe that it would effectuate the purposes of the Act to submit respondent to further expense and inconvenience by remanding this case.

Accordingly, it is ORDERED that the Judge's decision and order be set aside and that the Secretary's citation for serious violation and [*9] the notification of proposed penalty be vacated.

[The Judge's decision referred to herein follows]

SAUL, JUDGE, OSAHRC: 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 referred to as "the Act"), to review a Citation for Serious Violation issued by the Secretary of Labor (hereinafter referred to as the "Secretary") pursuant to section 9(a) of the Act, and a proposed assessment of penalty upon such alleged violation pursuant to section 10(a) of the Act.

The record in this case reflects the following:

1. On August 5, 1971, through J. C. Glickman, Compliance Officer for the Occupational Safety and Health Administration, U.S. Department of Labor (hereinafter referred to as "OSHA"), the Secretary conducted an investigation of a work site in Santurce, Puerto Rico, at which Constructora Metalica, Inc. n1 (hereinafter referred to as "respondent"), was engaged in constructing an apartment building, to determine compliance with the safety and health provisions of the Act. [Tr. 15; 18.]

2. On the basis of the above-mentioned investigation, the Secretary, through the Santurce, Puerto Rico Area Director [*10] of OSHA, issued a Citation for Serious Violation, dated August 19, 1971, and directed to the respondent, alleging a violation of section 5(a)(1) of the Act, in that the respondent failed to properly secure two counter-balancing counterweights and assigned untrained men to dismantle a crane. [Exh. 2; Tr. 2; 29.]

3. The Secretary, by his Notification of Proposed Penalty dated August 19, 1971, notified the respondent that, pursuant to the provisions of section 10(a) of the Act, a penalty of seven hundred and fifty dollars ($750.00) was being proposed for the alleged violation set forth in the Citation identified in paragraph 2, supra. [Exh. 2; Tr. 2.]

4. By letter dated September 14, 1971, addressed to the Santurce, Puerto Rico Area Director of OSHA, the respondent, by its President, Mr. Louis Dejoie II, gave notice of its intention to contest the above-mentioned Citation and proposed penalty. [Exh. 3; Tr. 2.]

5. By its notice dated September 20, 1971, the Occupational Safety and Health Review Commission (hereinafter referred to as the "Commission") gave notice to the parties of record of its receipt of this case as forwarded by the Secretary, and by its notice dated October [*11] 22, 1971, the Commission gave notice to the parties of the assignment of this case to the undersigned Judge. [Exh. 4, 5; Tr. 2.]

6. By letter from the Hearing Examiner dated October 29, 1971, addressed to the parties of record, this matter came on for hearing before me on November 16, 1971, in Hato Rey, Puerto Rico. [Exh. 7: Tr. 2.]

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n1 Constructora Metalica, Inc., as referred to herein, is a single enterprise consisting of Constructora Metalica, Inc., and Delta Concrete, Inc.

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Having heard the testimony of the witnesses, and having considered it together with the exhibits, stipulation, representations and admissions of the parties, it is concluded that the substantial evidence in the record considered as a whole supports the following findings of fact and conclusions of law:

FINDINGS OF FACT

1.(a) The respondent herein, Constructora Metalica, Inc., a corporation incorporated under the laws of the Commonwealth of Puerto Rico, with its principal office located at 380 65th Infantry Avenue, Rio Piedras, [*12] Puerto Rico, was at all times pertinent hereto engaged in the construction business, performing construction work within the meaning of 29 C.F.R. 1910.12. [Tr. 15.]

(b) Respondent was engaged in performing construction work on a condominium apartment building located at Calle Taft 15, Santurce, Puerto Rico (hereinafter referred to as the "project"), utilizing materials which are received from places outside of Puerto Rico, such as construction materials, forms, iron rods and other supplies. [Tr. 16; 15.]

2. At the time of the investigation conducted herein, respondent employed approximately sixty-six (66) employees and the construction project referred to herein has an estimated contract cost in excess of $600,000.00. [Tr. 23; 43.]

3. On August 4, 1971, two of respondent's employees were engaged in dismantling a Model G-75 Mayco climbing crane located at the project. The crane had been leased by the respondent from Triangle Engineering Corporation for use at the project. [Tr. 5; 6; 18.]

4. The employees engaged in dismantling the crane had no prior experience or training in the dismantling of cranes, and were unfamiliar with the structural and technical matters [*13] involved in the dismantling of the crane. [Tr. 18; 19; 20; 55; Exh. 11; 14.]

5. No competent supervisor of the respondent was present to instruct and warn the employees of the attendant dangers involved in the dismantling process. [Tr. 27; 28; Exh. 11.]

6. A 1200 1b. counterweight had been insecurely fastened to the boom of the crane in the dismantling process and subsequently fell, causing a loss of equilibrium on the boom, which in turn caused the entire crane assembly to collapse. One employee was killed by the fall and another was seriously injured. [Tr. 16; 17; 18; 19; 59; 60; 61.]

7. The respondent herein was promptly notified pursuant to section 9(a) of the Act of the conditions herein described by proper service of the Citation for Serious Violation dated August 19, 1971, and was further notified pursuant to section 10(a) of the Act of the penalty proposed by the Secretary, by service of a Notification of Proposed Penalty dated August 19, 1971. Proper receipt of these documents is acknowledged by the respondent. [Tr. 4; 2; 29.]

8. The respondent timely noted its intention to contest the violations alleged in the Citation and the proposed Penalty. [Tr. 2.]

9. [*14] The Citation, Notification of Proposed Penalty and respondent's notice of contest were duly posted by the respondent at the work project in a manner consistent with the notice requirements of the Act and section 1903.16 of the regulations promulgated thereunder (29 C.F.R. 1903. 16). [Tr. 30.]

10. There is no evidence in the record to indicate that the respondent fostered or established a safety program for the education or instruction of its employees on safety practices designed to prevent accidents during the course of their employment. [Tr. 29.]

11. Official documents of the State Insurance Fund of the Commonwealth of Puerto Rico, duly certified and authenticated, consisting of the statements of Mr. Jose Marmolejo, Mr. Carlos Vazquez Santana, Mr. Carlos Medina and Mr. Gilberto Alvarez Munoz were introduced and received in evidence. [Tr. 9; 10; 11; 12; 13; 14.]

12. Respondent's principal witness was one of its civil engineers, Mr. Fernando Davila, who stated, among other things, that he had not visited the project in two months and did not know how the accident happened. His testimony; however, does not in any way rebut the Secretary's testimony and evidence [*15] concerning the violation alleged in the citation. [Tr. 48; 51; 52; 58; 63.]

13. The Secretary introduced into evidence certain provisions of the Safety and Health Regulations for Construction of the United States Department of Labor, as published in the April 17, 1971 edition of the Federal Register (29 C.F.R. 1518.20(b)(2), 1518.20(b)(4), 1518.550(a)(5)). These regulations contained a post-effective date and were not in effect when the Secretary's representatives conducted an investigation of the respondent's work place. However, it is proper for the Secretary to introduce these regulations into evidence for the purpose of providing the judge, in his consideration of violations alleged under section 5(a)(1) of the Act, with a guideline of certain minimum safety practices to be followed in an effort to reduce and prevent occupational injuries and illnesses. [Tr. 23.]

14. No employees of the respondent communicated with the Santurce Area Office of the Occupational Safety and Health Administration, United States Department of Labor, with respect to the case. [Tr. 31.]

15. Respondent has represented to the Secretary and to the Commission that the employees at respondent's [*16] project at Taft Street, Santurce, Puerto Rico, are not represented by any labor union or any authorized collective bargaining agent.

16. Mr. Elisco Rivera attended the hearing as a representative of the affected employees, having affirmed that he had been designated by his fellow employees to attend the hearing. [Tr. 37; 38.]

17. Acknowledged, qualified experts in the field of occupational safety and health expressed the opinion, and it is hereby found, that the conditions described in findings of fact numbers 4 and 5, supra, constitute recognized hazards of the type referred to in section 5(a)(1) of the Act. [Tr. 14; 15; 33.]

18. In computing the amount of the proposed penalty for violation of section 5(a)(1) of the Act, the following penalty adjustments were allowed by the Secretary:

(a) 20% for the history of respondent because the record indicates that this was the first known safety violation by respondent; [Tr. 44.]

(b) 5% adjustment because of the size of the firm; [Tr. 44.]

The gravity of the violation, as revealed in findings of fact numbers [*17] 4, 5 and 6, was taken into consideration in the assessment of the penalty. As a result of the penalty adjustments, totalling 25% as set forth herein, the unadjusted penalty for serious violation in the amount of $1,000.00 was adjusted to a net penalty of $750.00 [Tr. 33; 34.]

CONCLUSIONS OF LAW

1. At all times pertinent herein, the respondent was an employer within the meaning of the Act and was engaged in a business affecting commerce within the meaning of section 3 of the Act. The Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein.

2. At all times pertinent herein, the respondent furnished employment to its employees, and said employees engaged in said employment, at a work place within the city of Santurce, Puerto Rico. The Occupational Safety and Health Act of 1970 is applicable to such employment within the meaning of section 4(a) of said Act.

3. The Citations, Notifications of Proposed Penalties, and Notice of Contest were served by and upon the respective parties hereto in conformance with the provisions of section 10 of the Act.

4. The conditions found to exist at respondent's work place on [*18] August 5, 1971, as set forth in the Citation for Serious Violation dated August 19, 1971, constitute a violation of section 5(a)(1) of the Act in that the employer herein on said date did not furnish to each of his employees employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to its employees.

5. The conditions found to exist at respondent's work place on August 5, 1971, constitute a serious violation within the meaning of section 17(k) of the Act, since there was a substantial probability that death or serious physical harm could have resulted from such violation.

6. In considering the amount of the penalty to be assessed, the undersigned judge has fully considered all the factors required to be taken into account under section 17(j) of the Act. In this regard, special consideration has been given by me to the gravity of the violation. Based upon my independent consideration and determination thereof, I find that the penalty proposed herein by the Secretary in the amount of seven hundred and fifty dollars ($750.00) is appropriate and reasonable. I further conclude that [*19] it takes into account the factors required by the Act (section 17(j)), and is otherwise consistent with the provisions of the Act (sections 10 and 17).

ORDER

In view of the foregoing findings of fact and conclusions of law, and having duly considered the size of the respondent's business, the gravity of the violation, the good faith of respondent, and the history of no previous violation in regard to respondent, and for good cause, it is hereby ORDERED that:

1. The Citation for Serious Violation issued by the Secretary of Labor be, and is hereby, affirmed;

2. The proposed penalty assessed against respondent in the amount of seven hundred and fifty dollars ($750.00) be, and is hereby, affirmed; and

3. Respondent shall, within thirty (30) days from the date hereof, pay to the Secretary of Labor, by means of either a certified or bank cashier's check, the assessed penalty of seven hundred and fifty dollars ($750.00)