No. 95-2779

DCS Sanitation Management, * Inc.; * * Petitioner; * * v. * On Petition for Review of an * Order of the Occupational Occupational Safety and * Safety and Health Review Health Review Commission; * Commission. Robert B. Reich, Secretary * of Labor, United States * Department of Labor; * * Respondents. *

Submitted: February 14, 1996 Filed: May 6, 1996
Before WOLLMAN, HEANEY, and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

DCS Sanit ation Management, Inc. (DCS) appeals the final decision of the Occupational Safety and Health Review Commission (Commission) affirmin g three citations for willful violation of federal safety regulations. We affirm.

BACKGROUND

In April 1993, Salvador Hernandez was killed when he became caugh t in a loin saddle tabl e that he was cleaning at the IBP, Inc. meat-packing facility in Madison, Nebraska. Hernandez was an employee of DCS, a contract cleaner at the IBP plant. The loin

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saddle table, which was in operation while it was being cleaned, struc k Hernandez in the head and killed him. The table had not been isolated fro m its power source, "locked out," as is required by federal regulations. In response to the accident, the Occupational Safety and Health Administratio n (OSHA) investigated the working conditions at the Madison plant.

Dur ing the investigation, OSHA Compliance Officer Frank Winingha m visited the plant and took statements from several employees. Whe n interviewing Spanish-speaking employees, a DCS supervisor acted a s interprete r. Because he was suspect of the translations given by th e supervi sor, Winingham contacted DCS management and requested that th e employees be made available to him again at an outside location. On May 3, 1993, the DCS regi onal manager and national operations manager brought six individuals to a hotel for interviews with Winingham. This tim e Wininghambrought his own professional translator. The translato r interpreted Winingham's questions into Spanish, interpreted the employees' respon ses into English, which Winingham then wrote down, and the n translated what Winin gham had written back into Spanish for the employees to verify.

At the conclusion of the investigation, DCS was cited for fiv e willful violations of OSHA regulations regarding lockout procedures. DCS appealed the decision to an Administrative Law J udge. At the hearing, the Secretary of Labor's evidence included the six w ritten employee statements prepared by Winingham. DCS objected to the stat ements as hearsay, but the objection was overruled. The ALJ affirmed three of the citations: 1 ) willfu l failure to train employees in lockout procedures; 2) willfu l failure to follow lockout procedures; and 3) willful failure to issu e lockout e quipment. The ALJ assessed DCS a $70,000 penalty for eac h affirmed citation. The Commission denied DCS's petition for discretionary review, and the ALJ's decision became a final

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order of the Commission on May 15, 1995. See 29 U.S.C. § 661(j) (1994). DCS now appeals that decision.

ANALYSIS

DCS appea ls the decision on two grounds: 1) the written statements
were e rroneously admitted into evidence, resulting in prejudice to th e appell ant; and 2) the citations for willful violation of federa l reg ulations are not supported by substantial evidence. We address eac h point.

I. Hearsay

DCS co ntends that the written statements taken by Investigato r Wining hamshould have been excluded from evidence because they contai n three different level s of impermissible hearsay: 1) the initial employee stateme nts, 2) the interpreter's translation of those statements int o English, and 3) the written recording of that translation. The Federa l Rules of Evidence are applicable in Review Commission hearings, OSHRC R. Pro. 2200.71 (1992), and therefore, govern our analysis.

A. The Employee Statements

The initial issue is whether the int roduction of the employees' oral statements through Investigator Winingham constituted impermissibl e hearsay. Clearly, th ey fall under the general definition of hearsay: an out-of-court statemen t offered to prove the truth of the matter asserted. Fed. R. Evid. 801 (19 95). The Secretary argues that the statements, with the exception of the statement by Thomas Luna, fall within the carve-

### With respect to the statement by Thomas L una, which indicated 1 

### that he was a former employee, the government argues that th e "catch-all" hearsay exception, Rule 804(b)(5), should apply. The ALJ found that the statement was credible and admitted it int o evidence. DCS Sanitation Management, Inc. , OSHRC No. 93-3023, at 9 (Ma rch 17, 1995). A judge has wide discretion in determinin g whether an appropriate foundation has been laid for the admission of evidence. See United States v. Franks , 939 F.2d 600, 602 (8th Cir. 1991). However, the catch-all exception is used in rare and exceptional circumstances. See United States v. Collins , 66 F.3d 984 (8 th Cir. 1995). Given that this statement is merely one o f six statements and much of its substance is replicated by th e other st atements, we analyze the sufficiency of the evidence withou t considering this statement. Therefore, we find it unnecessary to reach the correctness of the ALJ's decision with respect to thi s particular statement.
4 out provided by Rule 801(d)(2)(D) for admissions of employees concerning the matters within the scope of their employment. 1
To admit a statement under the emplo yee admission exception, a party must establish that t he statement was made by an employee of the opposing party during the existence of that employment re lationship. Fed. R. Evid. 801(d) (2)(D) (1995). With the exception of Luna, each out-of-cour t dec larant asserted that he was employed by DCS at the time of th e statement. DCS argues that this foundation is insufficient. In support of its position, DCS cites a 1970 decision by this court requiring that th e foundation establishing the grounds of a hearsay statement's exception mus t consist of something other than the statement itself, i.e., a hearsa y statem ent cannot "bootstrap" itself into admission by asserting that i t qualifies as a hearsay exception. United States v. Bensinger Co. , 430 F.2 d 584, 593 (8th Cir. 1970).

The Supreme Court has subsequently held, however, that the 197 5 congressional enactment of the Rules of Evidence, in which Rule 104 permit s courts to consider al l evidence when determining admissibility, overruled this prohibition on "bootstrapping." Bourjaily v. United States , 483 U.S. 171, 177-81 (1987) (considering Rule 801(d)(2)(E ) regarding co-conspirator

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statements). While this court has not applied Bourjailyto the employee admissions context, the Ninth Circuit has held that the same Bourjail y lo gic applies to 801(d)(2)(D) as well as to 801(d)(2)(E). In r e Coordinated Pretrial Proceedings in Petroleum Pr ods. Antitrust Litig. , 906 F.2d 432, 458 (9th Cir. 1990), cert. denied , 500 U.S. 959 (1991). W e agree.
In addition, even without considerin g the foundation asserted within these statements, DCS management brought these individuals to b e interviewed in respon se to the OSHA investigator's request for employees. The logical inference from this fact is sufficient to establish th e necessary foundation that the declarants were employed by DCS at the time the statements were made. Therefore, in light o f these two adequate bases of founda tion, we hold that the ALJ did not abuse his discretion b y admitting the statements under the Rule 801(d)(2)(D) employee admissio n hearsay carve-out.

B. Translation of the Statements

DCS next argues that even if the statements qualify as employe e admissions, the translations of the employee's original statements fro m Spanish constitute another level of impermissibl e hearsay. When presented with a similar issue involving the translation o f a declarant's statement, the Secon d Circuit has held that "an interpreter is `no more than a langua ge conduit' and therefore his translation [does] not create a n additional level of hearsay." United States v. Koskerides , 877 F.2d 1129, 1135 (2d Cir. 1989). By comparison, the Ninth Circuit has chosen a more guarded approach under which the interpreter's biases and qualifications are examined to deter mine whether the translated statements can fairly be considered to be those of the speaker. See Unit ed States v. Nazemian , 948 F.2d 522, 527 (9th Cir. 1991), cert. denied , 113 S. Ct. 107 (1992).

### 6 Under either approach, the translations in this case can b e attr ibuted directly to the declarant. At the hearing, DCS raised n o questio ns regarding the ability or biases of the interpreter, who wa s available at the hearing. Even on appeal, the only relevant contentio n made by DCS is that the interpreter was paid by OSHA, hardly sufficient by itself to require a j udge not to attribute the statements directly to the declarant.

DCS's real objection is that it did not have an opportunity t o question the employee s regarding what DCS characterizes as contradictions bet ween the statements made at the plant and those made at the secon d interv iew. DCS misidentifies its concerns regarding this issue o f rel iabilityas being "robbed . . . of any opportunity to question th e accuracyof the translation." DCS was not so robbed: the translator was
ava ilable at the hearing for inquiry into her skill, any bias, or th e accuracyof the translation. With respect to the reliability of out-ofcourt statements, such concerns would exist whet her the declarant made the statements in English or in Spanish. Faced with a clear rule permitting out-of-court statements made by party employees, DCS now merely attempts to relabel its argume nt in terms of the accuracy of the translation. The English translations were appropriately attributed directly to th e employees.

C. Written Statements
Finally, DCS argues that the writings prepared by Winingham rep resent yet another level of inadmissible hearsay. This argument is without merit

. See Fed. R. Evid. 803(5) (recorded recollection) and 803(6) (records o f regularly conducted activity).

In sum , we hold that the admission of the written recording of th e translated employee statements was not error.

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II. Sufficiency of the Evidence

The next issue raised by DCS is whether there was substantia l eviden ce to sustain the citations for willful violation of OSH A Reg ulations, 29 C.F.R. §§ 1910.147(c)(7)(i), 1910.147(c)(5)(i), an d 1910.147(d)(3) (1993) . The finding of a willful violation will be upheld if supported by subst antial evidence of the record as a whole. 29 U.S.C. § 660(a) (1994); West ern Waterproofing Co. v. Marshall , 576 F.2d 139, 142 (8th Cir.), cert. denied , 439 U.S. 965 (1978). This court has held that a violation is willfu lly committed if the defendant's actions demonstrate
an int entional disregard of or plain indifference to the act' s requirements. Valdek Corp. v. OSHA , No. 95-2194, slip op. at 4 (8th Cir. Jan. 22, 1996).

A. Violation of Section 1910.147(c)(7)(i): Failure to Provide Training
Section 1910.147(c)(7)(i) requires e mployers to "provide training to
ensur e that the purpose and function of the energy control program ar e understood by the employees and that the knowled ge and skills required for the safe application, usage, and removal of the energy controls ar e acquired by employees." 29 C.F.R. § 1910.147(c) (7)(i) (1993). In support of the citation, the Secretary offered the testimony of Manuel Hernandez, brother and co-worker of the deceased, as well as the statements taken by Winingha m. Each asserted that he had not been trained in lockou t procedures before the accident. Although DCS cl aims that Hernandez is not credible because of his relationship to the decedent, the issue o f credibility is a matt er for the trier of fact who, in this case, credited the testimony.

In addit ion to the statements made by DCS employees, IBP employee s testified that they observed numerous safety violations and informed DCS supervisors. DCS argues that such testimony only

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proves that the employees failed to practice the appropriate safet y procedures, not that DCS did not provide adequate training. Even if DCS
were t o have provided some safety instruction, if DCS supervisor s encouraged employees to disregard procedures to increase efficiency, such safety instruction would be meaningless and insufficient. See Nationa l Indus. Constructors, Inc. v. O.S.H.R.C. , 583 F.2d 1048, 1056 (8th Cir

. 1978) (holding that condoning violations of safety rules constitutes a violation of OSHA safety program requirement). Thus, the testimony of the IBP employees permits a reasonable inference that DCS managers promoted a work environment that ignored and neutralized an y safety training received by DCS employees.

Therefore, the testimony of DCS employees asserting the absence o f training and the evidence demonstrating an indif ference on the part of DCS
man agers to compliance with federally-required, safety procedure s substantially support the Commission's decision to cite DCS for a willful violation of 29 C.F.R. § 1910.147(c)(7)(i) (1993).

B. Violation of Section 1910.147(d)(3): Failure to Follo w Procedures.
Section 1910.147(d)(3) requires that "[a]ll energy isolating devices that are needed to control the energy to the mac hine or equipment shall be physically located and operated in such a manner as to isolate the machine
or e quipment from the energy source(s)." 29 C.F.R. § 1910.147(d)(3 ) (1993). The ALJ affirmed the citation for the violation that occurred whe n Salvador Hernandez was killed by the unlocked loin saddle table. In its defe nse, DCS argues that the violation was a result of unforeseeabl e employee misconduct. "To establish the defense of unforeseeable employee misconduc t, [the defendant] must prove that it had a work rule in plac e which implemented the standard, and that it communicated and enforced the rule ." Valdek Corp. , No. 95-2194, slip op. at 4 (emphasis added).

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As dis cussed above, there was substantial evidence that DCS manager s permitted, if not pro moted, an atmosphere that ignored safety procedures. Specifically, Manuel Hernandez testified that his supervisor showed him ho w to clean machines that were still operating. Th e written statements taken fromthe DCS employees asserted that it was commonplace for employees to climb over and reach into running machines. IBP managers testified that they r eported their observations of employee safety violations to DC S
man agers, but received little assurance. Accordingly, DCS is unable t o establish its defense, and the Commission's decision is affirmed.

C. Vio lation of Section 1910.147(c)(5)(i): Providing Lockout Equipment.
Finally, DCS appeals the citation for a willful failure to provid e lockout equipment. Although DCS offered some documentation that employees , includ ing the decedent, were issued locks, the Secretary offered th e testimony of Manuel Hernandez and the statements of Jose Hernandez an d Eusebio Moreles that asserted that they were not issued locks as part of their training. This testimony provides a suffi cient basis to sustain the decision of the Commission.

CONCLUSION

For the above-stated reasons, we affirm the decision of th e Commission finding that DCS willfully violated f ederal safety regulations.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.