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 Sanitation Management, Inc. (DCS) appeals the final decision of

the Occupational Safety and Health Review Commission (Commission) affirming

three citations for willful violation of federal safety regulations. We

affirm.

BACKGROUND

In April 1993, Salvador Hernandez was killed when he became caught

in a loin saddle table 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, struck

Hernandez in the head and killed him. The table had not been isolated from

its power source, "locked out," as is required by federal regulations. In

response to the accident, the Occupational Safety and Health Administration

(OSHA) investigated the working conditions at the Madison plant.

During the investigation, OSHA Compliance Officer Frank Winingham

visited the plant and took statements from several employees. When

interviewing Spanish-speaking employees, a DCS supervisor acted as

interpreter. Because he was suspect of the translations given by the

supervisor, Winingham contacted DCS management and requested that the

employees be made available to him again at an outside location. On May

3, 1993, the DCS regional manager and national operations manager brought

six individuals to a hotel for interviews with Winingham. This time

Winingham brought his own professional translator. The translator

interpreted Winingham's questions into Spanish, interpreted the employees'

responses into English, which Winingham then wrote down, and then

translated what Winingham had written back into Spanish for the employees

to verify.

At the conclusion of the investigation, DCS was cited for five

willful violations of OSHA regulations regarding lockout procedures. DCS

appealed the decision to an Administrative Law Judge. At the hearing, the

Secretary of Labor's evidence included the six written employee statements

prepared by Winingham. DCS objected to the statements as hearsay, but the

objection was overruled. The ALJ affirmed three of the citations: 1)

willful failure to train employees in lockout procedures; 2) willful

failure to follow lockout procedures; and 3) willful failure to issue

lockout equipment. The ALJ assessed DCS a $70,000 penalty for each

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 appeals the decision on two grounds: 1) the written statements

were erroneously admitted into evidence, resulting in prejudice to the

appellant; and 2) the citations for willful violation of federal

regulations are not supported by substantial evidence. We address each

point.

I. Hearsay

DCS contends that the written statements taken by Investigator

Winingham should have been excluded from evidence because they contain

three different levels of impermissible hearsay: 1) the initial employee

statements, 2) the interpreter's translation of those statements into

English, and 3) the written recording of that translation. The Federal

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 introduction of the employees' oral

statements through Investigator Winingham constituted impermissible

hearsay. Clearly, they fall under the general definition of hearsay: an

out-of-court statement offered to prove the truth of the matter asserted.

Fed. R. Evid. 801 (1995). 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 Luna, which indicated 1

that he was a former employee, the government argues that the

"catch-all" hearsay exception, Rule 804(b)(5), should apply. The

ALJ found that the statement was credible and admitted it into

evidence. DCS Sanitation Management, Inc., OSHRC No. 93-3023, at

9 (March 17, 1995). A judge has wide discretion in determining

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 (8th Cir. 1995). Given that this statement is merely one of

six statements and much of its substance is replicated by the other

statements, we analyze the sufficiency of the evidence without

considering this statement. Therefore, we find it unnecessary to

reach the correctness of the ALJ's decision with respect to this

particular statement.

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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 employee admission exception, a party

must establish that the statement was made by an employee of the opposing

party during the existence of that employment relationship. Fed. R. Evid.

801(d)(2)(D) (1995). With the exception of Luna, each out-of-court

declarant asserted that he was employed by DCS at the time of the

statement. DCS argues that this foundation is insufficient. In support

of its position, DCS cites a 1970 decision by this court requiring that the

foundation establishing the grounds of a hearsay statement's exception must

consist of something other than the statement itself, i.e., a hearsay

statement cannot "bootstrap" itself into admission by asserting that it

qualifies as a hearsay exception. United States v. Bensinger Co., 430 F.2d

584, 593 (8th Cir. 1970).

The Supreme Court has subsequently held, however, that the 1975

congressional enactment of the Rules of Evidence, in which Rule 104 permits

courts to consider all 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 Bourjaily to the employee

admissions context, the Ninth Circuit has held that the same Bourjaily

logic applies to 801(d)(2)(D) as well as to 801(d)(2)(E). In re

Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 906

F.2d 432, 458 (9th Cir. 1990), cert. denied, 500 U.S. 959 (1991). We

agree.

In addition, even without considering the foundation asserted within

these statements, DCS management brought these individuals to be

interviewed in response to the OSHA investigator's request for employees.

The logical inference from this fact is sufficient to establish the

necessary foundation that the declarants were employed by DCS at the time

the statements were made. Therefore, in light of these two adequate bases

of foundation, we hold that the ALJ did not abuse his discretion by

admitting the statements under the Rule 801(d)(2)(D) employee admission

hearsay carve-out.

B. Translation of the Statements

DCS next argues that even if the statements qualify as employee

admissions, the translations of the employee's original statements from

Spanish constitute another level of impermissible hearsay. When presented

with a similar issue involving the translation of a declarant's statement,

the Second Circuit has held that "an interpreter is `no more than a

language conduit' and therefore his translation [does] not create an

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 determine whether the translated statements can fairly be

considered to be those of the speaker. See United 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 be

attributed directly to the declarant. At the hearing, DCS raised no

questions regarding the ability or biases of the interpreter, who was

available at the hearing. Even on appeal, the only relevant contention

made by DCS is that the interpreter was paid by OSHA, hardly sufficient by

itself to require a judge not to attribute the statements directly to the

declarant.

DCS's real objection is that it did not have an opportunity to

question the employees regarding what DCS characterizes as contradictions

between the statements made at the plant and those made at the second

interview. DCS misidentifies its concerns regarding this issue of

reliability as being "robbed . . . of any opportunity to question the

accuracy of the translation." DCS was not so robbed: the translator was

available at the hearing for inquiry into her skill, any bias, or the

accuracy of the translation. With respect to the reliability of out-ofcourt statements, such concerns would exist whether 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 argument in terms of the accuracy of the translation. The

English translations were appropriately attributed directly to the

employees.

C. Written Statements

Finally, DCS argues that the writings prepared by Winingham represent

yet another level of inadmissible hearsay. This argument is without merit.

See Fed. R. Evid. 803(5) (recorded recollection) and 803(6) (records of

regularly conducted activity).

In sum, we hold that the admission of the written recording of the

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 substantial

evidence to sustain the citations for willful violation of OSHA

Regulations, 29 C.F.R. §§ 1910.147(c)(7)(i), 1910.147(c)(5)(i), and

1910.147(d)(3) (1993). The finding of a willful violation will be upheld

if supported by substantial evidence of the record as a whole. 29 U.S.C.

§ 660(a) (1994); Western 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 willfully committed if the defendant's actions demonstrate

an intentional 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 employers to "provide training to

ensure that the purpose and function of the energy control program are

understood by the employees and that the knowledge and skills required for

the safe application, usage, and removal of the energy controls are

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

Winingham. Each asserted that he had not been trained in lockout

procedures before the accident. Although DCS claims that Hernandez is not

credible because of his relationship to the decedent, the issue of

credibility is a matter for the trier of fact who, in this case, credited

the testimony.

In addition to the statements made by DCS employees, IBP employees

testified that they observed numerous safety violations and informed DCS

supervisors. DCS argues that such testimony only
8

proves that the employees failed to practice the appropriate safety

procedures, not that DCS did not provide adequate training. Even if DCS

were to have provided some safety instruction, if DCS supervisors

encouraged employees to disregard procedures to increase efficiency, such

safety instruction would be meaningless and insufficient. See National

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 any safety training received

by DCS employees.

Therefore, the testimony of DCS employees asserting the absence of

training and the evidence demonstrating an indifference on the part of DCS

managers to compliance with federally-required, safety procedures

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 Follow

 Procedures.

Section 1910.147(d)(3) requires that "[a]ll energy isolating devices

that are needed to control the energy to the machine or equipment shall be

physically located and operated in such a manner as to isolate the machine

or equipment from the energy source(s)." 29 C.F.R. § 1910.147(d)(3)

(1993). The ALJ affirmed the citation for the violation that occurred when

Salvador Hernandez was killed by the unlocked loin saddle table. In its

defense, DCS argues that the violation was a result of unforeseeable

employee misconduct. "To establish the defense of unforeseeable employee

misconduct, [the defendant] must prove that it had a work rule in place

which implemented the standard, and that it communicated and enforced the

rule." Valdek Corp., No. 95-2194, slip op. at 4 (emphasis added). 
9

As discussed above, there was substantial evidence that DCS managers

permitted, if not promoted, an atmosphere that ignored safety procedures.

Specifically, Manuel Hernandez testified that his supervisor showed him how

to clean machines that were still operating. The written statements taken

from the DCS employees asserted that it was commonplace for employees to

climb over and reach into running machines. IBP managers testified that

they reported their observations of employee safety violations to DCS

managers, but received little assurance. Accordingly, DCS is unable to

establish its defense, and the Commission's decision is affirmed.

C. Violation of Section 1910.147(c)(5)(i): Providing Lockout 

 Equipment.

Finally, DCS appeals the citation for a willful failure to provide

lockout equipment. Although DCS offered some documentation that employees,

including the decedent, were issued locks, the Secretary offered the

testimony of Manuel Hernandez and the statements of Jose Hernandez and

Eusebio Moreles that asserted that they were not issued locks as part of

their training. This testimony provides a sufficient basis to sustain the

decision of the Commission. 

CONCLUSION

For the above-stated reasons, we affirm the decision of the

Commission finding that DCS willfully violated federal safety regulations.

A true copy.

Attest:

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