UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 77-1300 |
|
HAMILTON
FOUNDRY DIVISION, HAMILTON ALLIED CORPORATION, |
|
|
Respondent. |
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August 30, 1978
DECISION
Before CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.
CLEARY, Chairman:
This
case is before us pursuant to the Occupational Safety and Health Act of 1970,
29 U.S.C. § 651 et seq. (1970). The issue here is whether Judge Allan M.
Wienman erred by granting respondent’s post hearing motion to dismiss, with
prejudice, a citation alleging noncompliance with 29 CFR § 1910.215(a)(4)[1] because of omissions in
the transcript of the hearing. We hold that he did; consequently we reverse and
remand for further proceedings not inconsistent with this opinion.
Respondent
filed with the Judge separate post hearing motions dated October 6, 1977. In
its Motion to Correct or Amend the Transcript respondent moved to correct the
transcript to make it comport with what it asserted to be actual testimony. The
corrections sought were basically minor transcription errors. This motion
included, however, reference to two portions of the transcript with gaps in
testimony.[2] No corrected version of
the transcript was suggested for these omissions. Rather, by its separate
Motion to Dismiss or in the Alternative, for Mistrial respondent asserted that
because of their breadth,[3] correction of these two
omissions was impossible. Respondent argued that dismissal was appropriate
because the transcript was not ‘verbatim’ as required by Commission Rule 65, 29
CFR § 2200.65. It asserted further that, due to the omissions, review by the
Commission and courts ‘would be affected.’ Respondent does not elaborate.
In
granting the motion to dismiss the Judge held that because of the added
expenditure of time and money required for retaking the omitted testimony,
respondent’s good faith, and the fact that the hazard had been abated, among
other things, termination of the proceedings by granting respondent’s motion to
dismiss was proper. He did not rule on the separate motion to correct the
transcript.
The
Judge relied upon Sullivan Brothers and Lent, Inc., ___ OSAHRC ___, 1
BNA OSHC 3144, 1971–73 CCH OSHD para. 15,085 (No. 204, 1972) (unreviewed
Judge’s decision),[4]
in which an Administrative Law Judge granted an employer’s motion to dismiss a
citation where the first 20 minutes of testimony went unrecorded through no
fault of either party. That Judge determined that reconstruction of the omitted
testimony was not possible and that only a rehearing could cure the deficiency.
He determined that, in lieu of a rehearing, dismissal was appropriate.[5]
Turning
to consideration of the omissions, we note that transcript deficiencies are not
grounds for exception absent a claim that they adversely affect movant’s case. Columbia
Transportation Company v. United States, 167 F. Supp. 5, 11 (E.D. Mich.
1958). Materiality is the key. Cf. Kinock Jan Fat v. United States, 253
U.S. 454 (1920). (Errors, without more, are not fatal even in a criminal case.)
See United States v. Perkins, 498 F.2d 1054, 1057–58 (D.C. Cir. 1974).
In
sum, a showing of materiality of the missing testimony is essential to a claim
that a party’s ability to present its case to a reviewing tribunal has been
impaired by transcript errors. Columbia Transportation Company v. United
States, supra; see 9 Moore’s Federal Practice ¶210.06[3] at 1630–31. In
the instant case respondent has not argued that the omissions are material. He
argues only that review would be ‘affected.’ This is not enough. The fact that
transcription omissions occurred does not, by itself, provide a proper basis
for a viable exception to a decision on the merits.
Respondent’s
reliance upon Commission Rule 65, 29 CFR 2200.65, is similarly unpersuasive.
Generally, failure to comply with a procedural rule, absent prejudice, is
harmless error. See Schiavone Construction Company, 77 OSAHRC 78/A2, 5
BNA OSHC 1385, 1977–78 CCH OSHD para. 21,815 (No. 12767, 1977) pet. for review
docketed, No. 77-1807 (3d Cir., June 20, 1977).
Finally,
we note that the Judge, without attempting to reconstruct the record or ruling
upon the materiality of the omitted testimony, considered the only option to
dismissal to be reconvening the hearing to retake testimony. Generally, we find
that a procedure analogous to Federal Rules of Appellate Procedure 10(c) and
(e)[6] is preferable. The parties
should first attempt to reconstruct the testimony. If they are unable to reach
agreement as to the omitted testimony the Administrative Law Judge should make
findings as to the content of the record.[7] Based upon all material
findings he should then reach a decision on the merits. If such findings are
impossible to make, the Judge should reopen the record to replace the missing
testimony. In any event, a decision on the merits should be issued.[8]
Accordingly,
it is ORDERED that the Judge’s order is reversed and the case remanded for
proceedings not inconsistent with this opinion.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: AUG 30, 1978
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
|
SECRETARY
OF LABOR, |
|
|
Complainant, |
|
|
v. |
OSHRC
DOCKET NO. 77-1300 |
|
HAMILTON
FOUNDRY DIVISION, HAMILTON ALLIED CORPORATION, |
|
|
Respondent. |
|
FINAL ORDER DATE: May 14, 1979
DECISION & ORDER
APPEARANCES:
THEODORE J. PETHIA, Esq., U.S. Department
of Labor Office of the Solicitor, Cleveland, Ohio, for the Complainant
ROGER A. WEBER, Esq., Taft, Stettinius
& Hollister, Cincinnati, Ohio, for the Respondent
JACK SMITH, United Steelworkers Union,
Local 3587, Fairfield, Ohio, for Employees
Wienman, Judge, OSHRC:
STATEMENT OF THE CASE
This
is an occupational dispute arising out of an inspection conducted March 24,
1977, at Respondent’s foundry in Hamilton, Ohio. An OSHA Compliance Officer had
visited the plant pursuant to an employee complaint about a ‘snag bag’ grinder
machine and requested a demonstration of the device. The machine operator
ground several castings positioned on a notched work rest. The notch permitted
a visible gap between the grinder wheel and work rest, and Complainant on April
5, 1977, issued a Citation alleging a serious violation of occupational safety
regulation 29 CFR 1910.215(a)(4)[9] described as follows:
Work rest(s) on
grinding machinery were not adjusted closely to the wheel with a maximum
opening of one-eighth inch.
The
workrest on the U.S. Electrical Tool Company grinder, serial #592688, located
in the grinding area, utilizing a ‘snag bag’ for snagging castings, was not
maintained at 1/8’ from outside edge of the fixture added for snagging the
Fruehauf ring to the wheel.
Complainant
proposed a $560 penalty in connection with the alleged violation. Abatement was
to be completed by April 20, 1977.
Respondent
timely contested the Citation, and after Complaint and Answer were filed, a
hearing was held in Cincinnati, Ohio, on July 19 and 20, 1977, with both
parties participating.
The
transcript prepared by the court reporter was accompanied by a letter
confessing the reporter’s difficulty in transcribing her notes (J–22). The
transcript contained two passages occurring during the examination of Charles
Du Val, Respondent’s safety director, where the reporter was unable to render a
verbatim account of the testimony.
Respondent
filed two motions premised upon transcript errors and omissions. The first was
a motion to correct or amend the transcript in which counsel suggested
corrections for 52 passages exclusive of the Du Val testimony (J–17). With
respect to the omitted material, Respondent represented that he was unable to
reconstruct the testimony and therefore moved for dismissal, or in the
alternative, for mistrial because of the absence of a full or proper transcript
(J–17).
Complainant
opposed both motions, but the undersigned Judge granted Respondent’s motion to
dismiss and vacated the Citation. On August 30, 1978, the Commission reversed
and remanded, directing the Judge to make findings as to the content of the
record and issue a decision on the merits.
Subsequently,
the parties conferred in an effort to reach an agreement as to transcript
corrections and reconstruction. Complainant accepted 48 of the 52 specific
corrections suggested by Respondent (J–31, J–32). The parties reconstructed the
omitted Du Val testimony by a deposition conducted February 15, 1979. The
deposition and agreed corrections are expressly incorporated in the record, the
content of which is now sufficient to support a decision on the merits.[10]
THE ISSUES
No
jurisdictional matters remain in issue. The parties pleaded facts sufficient to
establish that the Respondent is subject to the Act and that the Commission has
jurisdiction of the parties and the subject matter.
The
chief issue for decision is whether Respondent violated an occupational safety
regulation as alleged in the Citation. Resolution of this issue depends largely
on determination of a factual dispute. Respondent contends that the notched
work rest was not the tool used in production grinding of Fruehauf ring
castings, but that such castings were ground on a work rest which permitted a
close adjustment to the grinding wheel in compliance with the standard.
SUMMARY OF THE EVIDENCE AND DISCUSSION
OSHA
Compliance Officer Stephen Brunson inspected the foundry March 24, 1977, after
receiving an employee complaint about the operation of a ‘snag bag’ grinder
used to remove the excess metal from castings (T. 12). The ‘snag bag’ device is
an inflated air bladder which forces the casting into the grinding wheel under
pneumatic pressure (T. 18–19). The casting is positioned on a work rest (also
called a ‘tool’ or ‘fixture’) during this operation.
The
inspection party, which included company and union representatives in addition
to two compliance officers, first observed Bob Bowman, snag bag operator,
grinding a large 30 pound casting depicted in Exhibit G–1 (T. 20–23). Upon
learning that the complaint was directed at the grinding of a smaller casting
known as a Fruehauf ‘nut’ or ‘ring,’ Brunson requested a demonstration of the
Fruehauf operation. Bowman placed a fixture on the machine which was soon
removed in favor of a notched work rest (T. 23–30; Ex. C–3, C–4). He then
demonstrated the Fruehauf grinding (T. 34, Ex. C–5). The Fruehauf casting was
an octagonal nut with an inner diameter of 4 3/4″ walls, 3/8″
thick, and total weight of approximately two pounds (T. 36).
After
observing the demonstration, Brunson measured the distance from the leading
edge of the notched fixture to the grinding wheel. The distance was 3/4″ (T.
42), a gap in excess of the 1/8″ maximum opening permissible under the
OSHA standard.
The
Citation was vigorously disputed by Respondent who contended that Bowman
employed improper tooling during the demonstration. Rather, the production
tooling was said to be a work rest with a straight leading edge, which could be
closely adjusted to the grinding wheel (Ex. C–3).
Each
party produced multiple witnesses in support of its factual contentions. For
the Complainant, three operators, Alan Ketcham, William Donnell, Jr., and
Robert Bowman, testified they had always used the notched work rest when
grinding Fruehauf rings prior to the inspection (T. 89, 111, 116, 127).
For
Respondent, a number of supervisory and maintenance employees testified the
notched tool was never used when they observed production grinding of Fruehauf
castings (T. 210–211, 257, 287, 300–301, 346). Respondent maintained that the
notched fixture had been specifically designed for a lipped Caterpillar casting
(T. 253, Ex. R–7), and that there would have been no production advantage in
using a tool not closely adjusted to the grinding wheel (T. 153, 392). It was
also suggested that grinder operators resisted introduction of the ‘snag bag’
because the device reduced their earnings (T. 369–370).
Whatever
the motives of the operators, their testimony is persuasive that there had been
a certain amount of production grinding of Fruehauf castings with the notched
work rest in violation of the standard. No sensible reason explains this
practice since proper tooling was available, as evidenced by Exhibit C–3, a
photo taken by the Compliance Officer himself. Better communication between
supervisory personnel and operators in the form of clear tooling instructions should
have avoided the problem, but Respondent’s failure to correct the procedure
even when observing a noncompliant operation during the inspection lends
support to a finding that the standard was violated during production.
The
resultant hazard was serious in terms of the likely injury to the operator if a
casting jammed between the work rest and grinder and caused the wheel to
shatter (T. 51, 169). However, the Compliance Officer vastly overestimated the
probability of such an event by giving it a value of five on an eight-point
scale. As of March 22, 1977, some 70,055 Fruehauf castings had been ground
without incident (T. 371), positive proof that the chances of injury were
remote irrespective of the tooling the operator may have used.
Section
17(b) of the Act expressly commands the assessment of a monetary penalty for a
serious violation of the Act. See Secretary v. Hodgdon Shingle & Shake
Co., 2 BNA OSHC 1215, CCH OSHD para. 18,722 (No. 1315, 1974); Secretary
v. Continental Steel Corp., 3 BNA OSHC 1410, CCH OSHD para. 19830 (No.
3162, 1975). Mindful of the total circumstances surrounding the
violation—including the availability of proper tooling—we affirm the Citation
but assess only a nominal penalty of $1.00.
FINDINGS OF FACT
Having
held a hearing and considered the entire record, it is concluded that a
preponderance of the reliable, probative, and substantial evidence supports the
findings of fact set forth in the summary of evidence.
CONCLUSIONS OF LAW
1. At
all material times Respondent was an employer within the meaning of section 3
of the Occupational Safety and Health Act of 1970.
2. Jurisdiction
of this proceeding is conferred upon the Occupational Safety and Health Review
Commission by section 10(c) of the Act.
3. On
March 24, 1977, and on other prior occasions, Respondent violated occupational
safety regulation 29 CFR 1910.215(a)(4) as alleged in item 1 of the Citation
for serious violation issued to Respondent April 5, 1977. There was substantial
probability that death or serious physical harm could result from the violative
conditions and Respondent, with the exercise of reasonable diligence, could
have known of the presence of the violation.
ORDER
Based
on the above findings of fact and conclusions of law, it is ORDERED that the
Citation for serious violations issued to Respondent April 5, 1977, is affirmed
and a penalty in the sum of $1.00 is assessed thereon.
Alan M. Wienman
Judge, OSHRC
Dated: April 12, 1979
Footnotes
[1] 1910.215 Abrasive
wheel machinery
(a)
General requirements
(4)
Work rests. On offhand grinding machines, work rests shall be used to support
the work. They shall be of rigid construction and designed to be adjustable to
compensate for wheel wear. Work rests shall be kept adjusted closely to the
wheel with a maximum opening of one-eighth inch to prevent the work from being
jammed between the wheel and the rest which may cause wheel breakage. The work
rest shall be securely clamped after each adjustment. The adjustment shall not
be made with the wheel in motion.
[2] The court
reporter, in the typewritten transcript and subsequently by letter to the
Administrative Law Judge, indicated that on two occasions during the hearing
she ‘lost her concentration’ due to an undisclosed medical problem.
[3] The parties are
not in agreement as to how much testimony was omitted from the transcript.
Respondent asserts it is ‘. . . at least four or five pages . . .’ while
complainant contends that, at most, it amounts to two pages.
[4] An unreviewed.
Judge’s decision does not have precedential value Leone Construction, 76
OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976),
appeal withdrawn, No. 76–4070 (2d Cir., May 17, 1976).
[5] Cf. O’Brien
& Nye Cartage Company, ___ OSAHRC ___, 3 BNA OSHC 1093, 1974–75 CCH
OSHD para. 19,539 (No. 10477, 1975) (extreme sanction of dismissal
inappropriate where Secretary unable to proceed due to lack of counsel and
witnesses caused by severe snowstorm).
[6] Rule 10. The
Record on Appeal
(c)
Statement of the evidence or proceedings when no report was made or when the
transcript is unavailable. If no report of the evidence or proceedings at a
hearing or trial was made, or if a transcript a unavailable, the appellant may
prepare a statement of the evidence or proceedings from the best available
means, including his recollection. The statement shall be served on the
appellee, who may serve objections or propose amendments thereto within 10 days
after service. Thereupon the statement and any objections or proposed
amendments shall be submitted to the district court for settlement and approval
and as settled and approved shall be included by the clerk of the district
court in the record on appeal.
(e)
Correction or Modification of the Record. If any difference arises as to
whether the record truly discloses what occurred in the district court, the
difference shall be submitted to and settled by that court and the record made
to conform to the truth. If anything material to either party is omitted from
the record by error or accident or is misstated therein, the parties by
stipulation, or the district court either before or after the record is
transmitted to the court of appeals, or the court of appeals, on proper
suggestion or of its own initiative, may direct that the omission or misstatement
be corrected, and if necessary that a supplemental record be certified and
transmitted. All other questions as to the form and content of the record shall
be presented to the court of appeals.
Rule 10(c) procedures are often
appropriate for parties seeking relief under Rule 10(e), since the latter rule
is more general in its directions. 9 Moore’s Federal Practice ¶210.06[3]
at 1633.
[7] Respondent’s
Motion to Correct or Amend the Transcript is not before us and remains to be
addressed on remand. Inasmuch as this motion is opposed the Judge should
resolve the dispute based upon his own recollection of the testimony. See Rogers
Manufacturing Co. v. NLRB, 486 F.2d 644 (6th Cir. 1973), cert. denied 416
U.S. 937 (1974).
[8] The choice is for
the Judge and should be made with due regard for the goal of prompt resolution.
[9] Regulation 29 CFR
1910.215(a)(4) provides:
(4) Work rests. On offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each adjustment. The adjustment shall not be made with the wheel in motion.
[10] Complainant’s
objections to the four disputed specific corrections appear to be well taken,
and those passages stand uncorrected as reported.