please the court my name is howard k stern ski representing petitioner mountain states contractors i would like to reserve three minutes for a bubble petition around state's contractors appeals the determination of the occupational safety and health review commission that it violated the occupational safety and health that this court will be the first to look at the regulation that issue concerning crane operations and wire rope inspections crane operators are taught that a broken wire is a wire broken into and there is a distinction between a broken apart wire and a wire that is c if the administrative law judges decision is affirmed and a cracked wire is synonymous with a broken wire it will have a nationwide effect on how crane operators are instructed to inspect wire  s i'm not sure that us the that is the exact issue in this case because we're you know in looking at the record that's before us you have the interview with so tack and you operandi writers who in july told so tack that the current should be brought down because there are broken and smashed wires and these hutchens signed a statement to that effect so it does not understand that at trial the testimony used different words but we're talking about what produced the record before this at the debt from the deposition on when mr hutchens was asked about the condition of wires he truthfully explained what happened was in the initial interview with miso tak understanding that it was taken on a hot morning on a barge on a river with just him and the investigator he said that the what there were broken wires she did not ask him he said actually he said there was broke or there were broken wires she never asked him what do you mean by broke or broken wires she simply wrote that down and rather than him that standard white rock and but what is broken because the judge in this case said that broken meant not just broken apart but also wires that were cracked no meant without any guidance as to the substantiality of the cracks are we talking hairline fractures are we talking deep cracks or we're talking slight indentations and the like so what has happened in this case is the one statement that was explained by the witness mr hutchens as to what he actually saw was explaining that he saw cracks that's what he explained sure there was that one statement he made  where he did say they were broken but again as i reiterate it wasn't just one statement it was from mr hutchens it was the statements in may it was forms filled day out and confirmation in july that there were broken and smashed wires i would respectfully disagree with regard to the forms that he filled out if you're really speaking about the daily inspection reports there is no evidence in the record that he ever stated on those that there were sufficient broken wires to meet the out of service criteria the only thing that he said and other crane operator said was that the blue cable needed to be replaced however it does mean under the form it needed to be replaced eventually you know what does that mean my understanding of the form is that if you check that repair spot that the form itself say that that piece of equipment should be repaired before it is replaced into service exactly he said needed to be replaced he did not say it needed to be taken out of service he is that if we're pair is required that you will make that payor before the equipment is used now in plain english cancer that says to me when when somebody who's operating a dangerous piece of equipment says it needs to be fixed and the form says that means fixed before use you take it out of service and repair it before you put a person back on that piece of equipment tell me how you can see that another was because the operator who filled out the form said that the cable needed to be replaced and in his judgment it could be operated at did not need to be immediately repaired and taken out of service the operators say that on the form he didn't say by his actions he said it could continue to be operated his actions meaning because he continued to operate the crane particularly where he yes it is your honor particularly where he understood it and had taken cranes out of service when he felt they met the out of service criteria he did not believe that the times that he said the crane cable had to be replaced that he i felt it had to be taken out of service and how did he tell investigator  in may that the broken wires throughout the cable met the alj of service criteria before the accident i don't know how he told them that but what i do know is what he told them and we're talking about what the evidence is before this and that is the evidence before the and this a l j found also that mr hutchens was a supervisor and an agent of petitioner under the guidelines for the investigation that statement should have been taken in the presence of counsel if he were a supervisor because to could jump ahead if i may the petitioner pled an affirmative defense of unpreventable employee misconduct in that employ he knew of something didn't tell anybody about it and went on and operated the crane how ever the administrative judge said that mr hutchens was not just a crane operator and a competent person but because he operated the crane and had the authority over the crane he was a supervisor and agent the petitioner the ajay acknowledged the fact that the elements of the unpreventable employ misconduct defense had been met even assuming that it was broken whatever broken meant assuming that he knew it he didn't tell anybody he didn't tell anybody in the only way to get around that was to find that his actions of this one employee operator were attributable to the company and he found without any support either in the regulations or in any case precedent that an individual who operated a piece of machinery did not direct the work of any employees was a supervisor for purposes of a imputing liability and be doing away with that unavoidable employee misconduct defense and why why can't that be done was that wrong that first of all it was contrary to precedent there was no authority that he cited nor the government cited for that proposition because there is none in every case that has been cited the individual who was the competent person or also directed coworkers or supervise them and thus there was a basis for finding that they were a supervisor here however there is no evidence in the record that mr hutchens directed or supervised anybody while he was doing his job in the cab of the crane if the agency wish to excuse wishes to do that to say that a competent person is also a supervisor there is an avenue for doing it not through adjudication but if it's taking an interpretation that is never been made before that is certainly appropriate for the rulemaking process rather than and the adjudicatory process let me make sure i understand what your argument is because all of these determinations on who is competent and who is a supervisor are all very fact specific and you would agree with me on that on a on a case by case basis we have to see what this employer actually i think the person as this employer yes ok so what we have is this employer designated crane operators as the competent persons to make the determination of the viability were they filled out the actual for the daily inspection forms correct the further they started work the did the inspection then they filled out the form yes your honor and then there were some regular daily meetings for discussions correct there were meetings before everybody started their work they had a priest shift huddle or a meeting to talk about working safe working smart that there were particular issues it was for the entire crew ok so so this employer designates crane operators as the competent persons they fill out the forms and they can speak at these meetings about whether there's an acquittal problem and yet well i think that there was discussion in the record about thing said at the at these meetings you actually the foreman with the ones or the superintendent who conducted the meetings and talked about general or specific safety matters it was not there is no evidence in the record that there was taking questions or comments from the floor and that competent person crane operators addressed the preach shift safety meetings to say i found this or this is a kurd ok so what you have the you have crane operators who fill out daily forms let's say they said on the daily forms what these crane operator said the crane should be brought day on their broken wires in the  it out of service criteria now we know from the record that those daily inspection reports were not reviewed by anybody in this company but were compiled onsite and when the book was full of those they were shipped to a storage site with that review so what i'm struggling with is that under this particular employer's methodology he has charged a form in that circumstance i don't understand or perhaps you could tell me why that crane operator is then not in fact a supervisor and the repository of knowledge for that employer because the employer has created the situation in which no one else in management reviews the request of that crane operator to take a crying out of s why isn't that constructive knowledge one of the premises of your statement was about some of the comments on the forms it should be aware that what many of those comments related to a different table i understand it ok operating ok on cable from the ok and there was nobody and there was nobody has said that the cable met the outer surface criteria on those forms did not specifically say it met the out to service criteria or should they be that sales are in the record yet it's the forms themselves indicate that it should be taken out of service and that there are broken wires either under mitch or mr hutchens form completions mr bundy's form completion who was driving the crying at the time that it broke if those indicate that it should be taken out of service or check martin needed repair and no one else reviews the aren't those two crying drivers the representative of the employer by his designation competent persons who then are the only persons on the site who know on behalf of the employer the condition of the crime the but the judge's reasoning if you had a competent person in there was let's let's ask first answer ok ok i was trying let me get to that the competent person who makes the determination as to the usability of the crane which in this case was mr bundy mr hutchens mr she him they were the three individuals who made that determination one of them mr hutchins had said at one point that it met the at a service criteria he continued to operated is he the agent or representative of the company we would contend no there has this would be not if the company failed to look at the information he conveyed and had no one review it in the company has chosen to present that competent person as the company's representative by our regulation the person who makes the decision on whether to say well who signs off on using the crane is a competent person if somebody else it's a both of them is charged with looking over their shoulder on their determination the competent person no longer fulfills the obligation of what a competent person is under the regulation and if no one is in fact looking at the information that they write on the employer's firm forms then they remain the competent person and their knowledge is the employer's knowledge why is that not correct to inspect the boom and write down in the report that is then placed in the very same crane box that the operator is going into and never shown to anybody else and then put in storage when the form booklet is for the employer can decide to operate in that fashion and never have any supervisor have knowledge the employer is obligated to do so because isn't this case the superintendent mr tom she hand was not a crane operator so he could not have been a competent person so he could not have looked over the shoulder second guess because in this situation where you had a crane operator was making the final call because they were trained crane operators so they made the final call and said it was broken in the employer and know that information on behalf of the employer you know that the concern is it feels very much like wanting to have it both ways you assign this crying operator to be the person to make the call that person makes the call that there's a problem here the employer puts blinders on insist on not going to look at that form i'm going to ship it away to storage and then say as our oh i'm sorry that that was employee improper activity that is my defense nail i don't think you get to have it both ways the final decision that was made it was not the form it was the decision to operate the form and even assuming that what you have stated that the form said take it out of service the exact same person who completed the form went ahead and on their own without anybody telling them to do so operated the crane that was the final decision your robot has been on for a long time because we've taken lots of i was i didn't know if i was you know just to shut it no you're supposed to answer a question so i'm just indicating that if you want to save your time for rebuttal if i may hear from the other side supports the secretary's interpretation that wires are described as cracked or fractured fall within the scope of the term broken for purposes of the standard sec provides fair warning of the standard requirements employees statements there and investigative phase of his case as well as the dealings inspection reports and also certain corroborating testimony during the trial specifically there stated that during his annual inspection on april third that he had seen two broken wires he said this during the inspection and the also confirmed is during the trial phase and he was he the inspector that inspection that sort was done more carefully by mr hutchens the crane operator and a second employee and they stated very affirmatively that the discovered additional broken wires and this is very significant mr hutchens stated to the inspector journey investigation that in fact that scene broken wires specifically stated that they met the out of service criteria and they even went to his foreman testimony the descriptions of what they had seen these crimpers that they had changed drastically from fractures to parallel fractures to cracks they were as they all day put it really trying to any reason to doubt feel jay's credibility findings there jane noted that he believed based on his observations of the witnesses demeanor their change in terms from pretrial to trial phases  also he had he had good reason to discount mr byron bundy and mr congrats conclusions that the wires did not meet the out of service criteria but them did not conduct a close enough examination for instance mr brime bundy you can see in the record that he filled out the precipitous bunch of forms seven times he did so and did not indicate that the boom table that there was something wrong with the boom whereas his colleagues mr hutchens and chauncey and had had didn't fact state that there was something wrong with the cable so the case that he wasn't looking at the cable closely enough and when they said there is something wrong with the form also said that the cable should be pulled out of service until being replaced the notations on the inspection reports range from boom cable needs replacing replacement cable to there being it needed to be repaired and that term specifically means repair before further operation at trial he explained this he indicated that when he noted boom hoist that meant the boom cable and then we noted repair that he meant that it should have been taken out of service which is what it's for yes that's right form explanation of terms has repay or means item needs to be repaired before further up right yes that's right supervisor knowledge is there was actually a constructive knowledge is established with through the foreman cianci and there's no dispute that he's a supervisor he observed broken wires and also m the superintendent he's in charge of the entire project now as strange properly pointed out on states can't have it both ways it can't save it it's crane operators aren't supervisors but they're not supervise them at all there's got to be some accountability on part of the company and there's this court has pointed out in broad myers that final responsibility is final responsibility of compliance with  employer so they can't farm out these responsibilities so they're low level employees and fail to supervise them and this is the right rear of the case that they've simply failed to supervise employees by allowing them to inspect monitor and have authority taking these trains out of service and then failing to sort of review these documents to ensure the safety of these cranes that are that are being used if i may i'd like to turn to the issue of deference to the secretary's interpretation before you get to that soto are you contending that hutchens was a supervisor or you're not contending that what we read gree and give them no supervision then that means that these crane operators including mr hutchings or supervisors there's case law in the commission that indicates that what needs to be looked at is disher of authority that the employer has delegated to these to the to their lower level employees to act on their behalf and there's cases of found that were employees are authorized to take corrective action they can become supervisors and hear these employees admittedly have been authorized to take corrective action or authorized to be able to create out of service when they when they thought that it was right to do so meant his state of the life that there was a lack of reason diligence by failing to follow normal procedures and taking actions to discover violations also sated stated that reasonable diligence requires effort attention in action not just reliance upon actions of others so your mr thomas e n the superintendent can just rely on the crane operators while it's true that they continue to operate the crane it was his obligation to sort  of review the inspection reports to determine if the crane was safe to operate and in fact the head he was on notice that there was something wrong with the boom people as soon as bitter hot mr hutchens informed his foreman and his foreman informed mr sheen the superintendent to order a replacement cable why would the crane operators keep operating the crane if they knew it was not safe but the big question your honor the record doesn't necessarily explain that it can do certain reasons that i could surmise it's possible that there were maybe under under pressure to continue working there's but the record doesn't give us the record doesn't fully chords when there's an undefined term time it's ordinary meaning and this is discordant others have always looked to dictionary definitions as a way to finding out what that meaning is as we've stated in our brief the term broken can have a very broad mean and those the definition of broken includes terms such as cracked in fractured simply the mountain states interpretation is simply too narrow the term broken does not mean broken into that's not in the regulation at all and in fact the fact that it's the term broken appears unqualified it suggests a broad meaning was intended and that could mean anything from slightly broken to completely broken and these terms cracked and fractured reasonably fall within that spectrum well as a specific purpose of the standard which is meant to avoid crane collapses resulting from the wire rope failure which is exactly what happened in this case it's like the  fact that the crane did collapsed due to the wire were snapping indicates that there was something drastically wrong with with the boom cable and whether that was cracked fractured or broken wires that should have been taken out of service who also believe there's simply no due process violation where the plain meaning of the standard and the were broken gives fair warning to the employer replacement cable on site the day the crane collapse it had been there for several weeks is the record indicating why it was not put into the cream i believe this is not some of the question of why the current operators continue to in response to your questioning the crane operators who were representatives of the company i was the investigator allowed to speak with them outside the presence of counsel counsel for the department talked about me ask you at that point was was there i guess there was no information in the record at that point that that the review and the actions of these competent persons were not overseen by any supervisor is that correct that would be correct then the second point would be how the judge who found that they were representatives supervisors of the company their testimony to be the basis for his decision when he had taken let me ask you didn't your opponent argue that the basis for the decision was substantial evidence that existed in the record without regard to supervisory status that even a map and he conceded even if there are not supervisors there is substantial evidence in the record and that was the first position of the a l j wasn't it that there is substantial evidence in this record and one of meeting the requirements to replace the been cable and we would argue without going into it that there was evidence but it was rather than there being substantial evidence counsel talked about as well as the judge did that common sense indicated that fractures no matter how minute would affect the integrity of the wire rope and therefore cracked should be included within the commonsense definition if that were so the crane manual which the manufacturer of the crane used for crane operators would have to pick did cracked wires it showed in each instance where it depicted broken wires broken apart wires the crane operators testified that their training was that broken wires meant roque in a part there is nothing in the regulations that says that when we're dealing with highly technical matters when we're dealing with the cold metal strength metallurgy that we resort to common everyday dictionaries rather than technical manuals that would be more specific regarding it i'm afraid your time it's amazing how quickly time goes by