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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
DCS Sanitation Management, Inc.;
Occupational Safety and Health Review Commission;
Robert B. Reich, Secretary of Labor,
United States Department of Labor; Respondents.
On Petition for Review of an Order of the Occupational Safety and
Health Review Commission.
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.
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 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
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 order of the Commission on May
15, 1995. See 29 U.S.C. ' 661(j) (1994). DCS now
appeals that decision.
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.
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-out provided by Rule
801(d) (2) (D) for admissions of employees concerning the matters within the scope of
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 statements). While this court has not applied Bourjaily to the
employee admissions context, the Ninth Circuit has held that the same Bourjaily logic
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).
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-of-court 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.
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),
1910.14 7 (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
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 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). 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.
For the above-stated reasons, we affirm the decision of the Commission finding that DCS
willfully violated federal safety regulations.
A true copy.
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.