Oscar Renda Contracting, Inc.

Plain-English summary

An employee died when a 3,500-pound plate fell while being lowered into a trench, and OSHA issued numerous serious citations with $26,400 in proposed penalties. At the hearing, the inspecting officer did not appear, two key Spanish-speaking witnesses could not communicate effectively without an interpreter, and the remaining witness had limited knowledge. The ALJ denied postponement and reopening requests and vacated every citation because OSHA failed to prove its case. Applying a fairness-and-substantial-justice standard, the Commission found that the officer's absence, the lack of interpretation, and the judge's later reliance on the testimony's unintelligibility made reopening necessary. It vacated the ALJ decision and remanded for testimony from the compliance officer and the two workers with appropriate interpretation, plus cross-examination and rebuttal. Commissioner Montoya dissented, emphasizing the Secretary's poor preparation and failure to request review.

Decision snapshot

• Cited standard(s): None identified in this procedural Commission decision.
• Outcome: The wholesale vacation of the citations was set aside, and the case was remanded to reopen the record.
• Key point: Fundamental fairness may require reopening a hearing when essential testimony is lost through a witness's absence and the failure to provide interpreters for key witnesses.

Full text (OSHRC public release)

                         United States of America
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                    1120 20th Street, N.W., Ninth Floor
                       Washington, DC 20036-3419




                                             :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 93-1886
:
OSCAR RENDA CONTRACTING, INC., :
:
Respondent. :
:

                                   DECISION

BEFORE: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.
BY THE COMMISSION:
This case arises out of an accident at the worksite of Oscar Renda Contracting, Inc.
(“Oscar Renda”), which resulted in the death of an employee. Following the accident, the
Secretary of Labor (“Secretary”) conducted an inspection and issued a citation charging
Oscar Renda with numerous serious violations of the Occupational Safety and Health Act
of 1970, 29 U.S.C. §§ 651-678, and proposing penalties totaling $26,400. Administrative
Law Judge Stanley M. Schwartz vacated the citation in its entirety based on his finding that
the Secretary failed to establish a prima facie violation of any of the cited standards. At
issue on review is the question of whether the record should be reopened. For the following

                                                                   1997 OSHRC No. 2

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reasons we find that the record should be reopened, and we vacate the judge’s decision,
remanding the case for further proceedings consistent with this decision.1
I. BACKGROUND
The hearing before the judge commenced on January 11, 1994, at which time the
Secretary requested a postponement due to the inspecting compliance officer’s failure to
appear. The Secretary explained that the Department of Labor had terminated Compliance
Officer (“CO”) Debra McDavid’s employment, she had been subpoenaed the previous
evening, and her presence was necessary to adequately present evidence and formulate
questions to witnesses. The judge denied the Secretary’s request due to the fact that service

1
Chairman Weisberg directed this case for review sua sponte, pursuant to § 12(j) of the Act,
29 U.S.C. § 661. The Chairman notes that although letters from family members of the
deceased worker objecting to the judge’s decision and urging review may have initially
brought the case to his attention, these letters were not accepted as petitions for review.
In the Chairman’s view sua sponte direction is not something that a Commissioner
should do frequently, or even occasionally, but rather only rarely. Generally, when none of
the parties in a case seek review, absent unusual circumstances, the judge’s decision should
become a final order, and the parties should not be required to litigate further.

   Rule 92(b) of the Commission’s rules states that:

          In the absence of a petition for discretionary review, a
          Commissioner will normally not direct review unless the case
          raises novel questions of law or policy or questions involving
          conflict in Administrative Law Judges’ decisions. (Emphasis
          added.)

29 C.F.R. § 2200.92(b). Chairman Weisberg notes that his colleague, Commissioner
Montoya, in citing and quoting from this rule in her dissenting opinion, neglected to include
the word “normally.” This rule was adopted by the Commission in 1976 in response to a
particular Commissioner directing review in virtually every case to insure that the text of the
administrative law judge’s decision would be published. In addition, the Commission
explained that this rule “does not limit in any manner a Commissioner’s right to direct
review, but merely establishes administrative guidelines for the exercise of that right.” 41
Federal Register No. 234 (Dec. 3, 1976) at 53015. In any event, the Chairman is in accord
with the view that sua sponte direction be exercised sparingly.
 -3-

of the subpoena occurred only the evening before trial2 and, “more importantly,” because of
his “complete confidence” that the Secretary had fact witnesses and another experienced
compliance officer available at the hearing.3
During the hearing it became evident that two of the Secretary’s three fact witnesses
could not effectively testify without an interpreter. The first witness, Abel Espinoza, stated
that he could not understand English well and asked that the questioning proceed more
slowly. He was, nevertheless, questioned by both parties with no discussion of the need for
an interpreter, and the record contains numerous lapses in his testimony where the
designation “unintelligible” was inserted by the court reporter. The second witness, Rogelio
Rojas, was unable to understand the oath when the judge attempted to swear him in and
asked for an interpreter. Despite acknowledgment by both parties and the judge that an
interpreter was needed, questioning of Mr. Rojas proceeded without translation and the
record reflects numerous lapses in his testimony by the designation “unintelligible.”
The Secretary’s third employee testified effectively in English, but had limited
knowledge of the circumstances and conditions underlying the alleged violations. Oscar
Renda presented no evidence or testimony. At the close of the hearing, when it had become
clear that CO McDavid’s testimony was essential to establishing the violations, the Secretary
stated his intent to compel her appearance. The judge ruled that any motion for subpoena
enforcement must be preceded by a motion to reopen the record which would “stand or fall
on the reasons occurring prior to the actual hearing in this matter . . . .”
In his motion to reopen, the Secretary argued that the CO’s testimony was necessary
to complete the record, and explained that the CO had been fired for insubordination, was
informed of the hearing, indicated she would be available for trial, and was subpoenaed

2
The Commission’s rules provide that a motion to postpone a hearing must be received at
least seven days prior to the hearing unless good cause is shown for late filing. Rule 62(c),
29 C.F.R. § 2200.62(c).
3
Ronald Sarnacki, the compliance officer present at the hearing, informed the judge that he
had taken no part in the inspection of Oscar Renda’s worksite.
 -4-

because the Secretary was uncertain she would keep her commitment. The judge denied the
motion on April 29, 1994, for failure to show good cause justifying the late postponement
request. In a series of letters the Secretary subsequently requested reconsideration of the
judge’s ruling arguing that failure of a witness under subpoena to appear constitutes exigent
circumstances justifying a hearing postponement despite an otherwise untimely request. In
addition, the Secretary explained that although CO McDavid had agreed to testify two weeks
prior to the hearing, he served a subpoena on her attorney to ensure her appearance. When
the attorney complained of improper service the day before the hearing, the Secretary
attempted to serve McDavid by a private process server.4 By the time of the Secretary’s
reconsideration request, McDavid had been reinstated, mooting any subpoena enforcement
issue.
The judge issued a decision on June 28, 1994 vacating the citation in its entirety.
Reaffirming his earlier rulings, the judge concluded that “where there was a well-founded
fear the CO would not appear because she had been terminated, leaving a subpoena with a
roommate the night before the hearing was insufficient and provides no basis for postponing
the hearing or reopening the record.” In addition, the judge’s decision accurately states that
“Espinoza indicated he could not understand English very well, while Rojas specifically
stated he needed an interpreter.” Despite acknowledgement by both parties that an interpreter
was needed, and notwithstanding his own finding that a significant portion of the testimony
given by witnesses Espinoza and Rojas was “unintelligible”, the judge found that “none of
the testimony of either of these witnesses addressed any of the allegations set forth in the
citation items.”

4
A copy of the subpoena submitted by the Secretary in response to the judge’s order indicates
that the process server left a copy of the subpoena at Ms. McDavid’s residence with her
roommate on January 10, 1994, at 6:45 p.m.
 -5-

                          II. DISCUSSION

A. The Appropriate Standard
 -6-

   It is well settled that a request for postponement must be supported by a showing of

good cause for the need to postpone, and for any failure to request a postponement later than
seven days prior to trial. Baytown Constr. Co., 15 BNA OSHC 1705, 1708, 1991-93 CCH
OSHD ¶ 29,741, p. 40,412 (No. 88-2912-S, 1992), aff’d without published opinion, 983 F.2d
232 (5th Cir. 1993); Hern Iron Works, Inc., 13 BNA OSHC 2186, 2186-2187, 1987-90 CCH
OSHD ¶ 28,502, p. 37,773 (No. 88-1962, 1989). When the Secretary requested a
postponement at the outset of the hearing, he failed to fully explain to the judge the
background of the subpoena of CO McDavid and her failure to appear, nor did he explain
why McDavid’s testimony was essential to establishing the violations. In denying the
request the judge explained that he had “complete confidence” that the Secretary had
adequate witnesses available, and would not be prejudiced by the absence of Compliance
Officer McDavid. At that time, therefore, as the judge reasonably concluded, the Secretary
had not shown good cause either for the need to postpone or for his untimely request.
Different circumstances prevailed and different criteria applied, however, at the close
of the hearing when the Secretary requested that the record be reopened. While neither the
Commission’s rules nor the Federal Rules of Civil Procedure contain specific procedures
governing motions to reopen a hearing or record, the Commission has considered such
motions in a number of cases on review, adopting the federal courts’ criteria of “fairness and
substantial justice” in light of “all the surrounding circumstances” in deciding whether to
grant or deny the motion. See e.g., Article II Gun Shop, Inc., 16 BNA OSHC 2035, 2036,
1994 CCH OSHD ¶ 30,563, p. 42,229 (No. 91-2146, 1994) (consolidated); Chesapeake
Operating Co., 10 BNA OSHC 1790, 1792-93, 1982 CCH OSHD ¶ 26,142, p. 32,915 (No.
78-1353, 1982) (quoting 6A Moore’s Federal Practice, ¶59.04[13], p. 59-39(1994)).
Accordingly, we find that fairness and substantial justice is the standard under which the
Secretary’s motion to reopen should have been considered. See Equitable Shipyards, Inc.,
12 BNA OSHC 1288, 1290, 1984-85 CCH OSHD ¶ 27,237, p. 35,161 (No. 81-1685, 1985)
(consolidated) (finding fundamental fairness required that respondent be given opportunity
 -7-

to obtain crucial testimony, Commission ordered remand where witness declined to appear
at hearing and judge denied subpoena enforcement motion).5
While the grant or denial of a motion to reopen is an exercise of discretion on the part
of the trial judge which we are normally reluctant to disturb, that discretion must be
exercised within the context of the proper standard. The applicable standard is a matter of
law, and is not discretionary. The record here shows that in considering the Secretary’s post-
hearing motion to reopen the record the judge applied the good cause standard and limited
his consideration to “reasons occurring prior to the actual hearing,” without consideration
of further intervening and surrounding circumstances which might be relevant. Accordingly,
we conclude that the judge erred as a matter of law by failing to apply the “fairness and
substantial justice” test in light of all the surrounding circumstances when ruling on the
motion to reopen the record.6
B. Application of the Standard
In applying the fairness and substantial justice test to motions requesting a reopening
of the record, the Commission has considered the timing of the motion, the character of
additional testimony, and the effect of granting the motion. Applying these factors here, we
find that the Secretary’s efforts to ensure CO McDavid’s appearance at the hearing, were
not a model of diligence but evidenced a continued effort to obtain vital testimony in the face
of unusual and changing circumstances. McDavid had been fired for insubordination but had
agreed to testify just two weeks prior to the hearing. In order to ensure her presence, the
Secretary served a subpoena on her attorney who complained of improper service only the
day before the hearing. In these circumstances, the Secretary had little basis upon which to
timely request a postponement the requisite seven days prior to trial, nor did he have much

5
In its brief on Review, Oscar Renda also cites the “fairness and substantial justice” standard
as applicable to the question whether to reopen the record.
6
We note here that our dissenting colleague’s concern with our failure to find abuse of
discretion is misplaced in view of our conclusion that the judge erred by applying the wrong
legal standard. Accordingly, we had no occasion to decide whether the judge abused his
discretion.
 -8-

time to effect personal service.7 At the hearing, the Secretary immediately requested a
postponement although admittedly he could have provided more detailed information at that
time concerning the circumstances of McDavid’s failure to appear. After completion of the
proceedings, the Secretary indicated his intent to compel the CO’s appearance. The
Secretary filed a formal motion to reopen the record just over a month after the hearing date,
within the time specified by the judge. Following the judge’s denial of the motion, the
Secretary requested reconsideration of the ruling supported by further details of his efforts
to obtain McDavid’s appearance. Finally, although he did not petition for review, the
Secretary’s position before the Commission is that reopening the record remains necessary
and justifiable. Cf. Genesee Brewing Co., 11 BNA OSHC 1516, 1518, 1983-84 CCH OSHD
¶ 26,519, p. 33,763 (No. 78-5178, 1983) (remand warranted where Secretary’s efforts in
seeking discovery inspection prior to hearing, though not model of diligence, not excessively
dilatory).
While the Secretary’s efforts to timely present the CO’s testimony were less than
exemplary, any sanction for his lack of diligence in dealing with McDavid’s appearance must
be assessed in the context of the hearing itself. The purpose of this hearing was to adjudicate
allegations of numerous serious violations of the Act arising from an accident in which
employee Rodolpho Fierra died from injuries suffered when a 3500-pound plate fell while
being lowered into a trench. In denying the Secretary’s postponement request the judge
relied on his “complete confidence” that the Secretary had fact witnesses whose testimony
would be available. At the hearing (which lasted less than two hours) two witnesses made

7
Although service of the subpoena on Ms. McDavid’s roommate raised a question as to
enforceability of the subpoena, McDavid never challenged it. See Lee Way Motor Freight,
3 BNA OSHC 1843, 1846, 1975-76 CCH OSHD ¶ 20,250, p. 24,144 (No. 7674, 1975)
(Commission affirmed judge’s denial of motion to revoke subpoena, in part, because
“[p]arties to whom subpoenas are not directed lack standing to attack them”). Moreover,
adjudication of such questions is appropriately left to a subpoena enforcement proceeding.
See Equitable Shipyards, Inc., 12 BNA OSHC at 1293, 1984-85 CCH OSHD at p. 35,163.
Accordingly, our disposition of this case does not include consideration of the now moot
question of the sufficiency of service.
 -9-

clear their inability to communicate adequately in English and need for interpretive
assistance and, in the absence of such assistance, presented testimony that was admittedly
unintelligible to the judge and counsel. The third, who was able to testify in English, had
limited knowledge of the conditions relating to the alleged violations.
If we were to examine each element and each episode in this process without
reference to the others, we might reach a different conclusion than we do today. Looking
at the totality of the circumstances, however, and applying the test of fairness and substantial
justice, we conclude that we must remand this proceeding and direct that the record be
reopened.
In particular, we note the circularity of the judge’s reasoning. Initially, he found that
postponement was not warranted based on the failure of the CO to appear, in part, because
other witnesses were available. Later, however, when it became apparent that the only two
witnesses with direct knowledge of the allegations were “unintelligible” because of their lack
of facility with the English language, he neither provided an interpreter nor permitted the
record to be reopened for inclusion of CO McDavid’s testimony despite the Secretary’s
further elucidation of the circumstances under which she initially failed to appear. Finally,
the judge issued a decision which both characterized the testimony of these two witnesses
as unintelligible and stated that it did not address the allegations.
The judge, perforce, evaluated each element in the process at the time it occurred.
However, as noted above, he applied the incorrect test when considering the Secretary’s
motion to reopen. We have reviewed the process as a whole as outlined above and conclude
that it simply does not satisfy the proper test of “fairness and substantial justice,” nor does
it meet the standards which Commission procedures must maintain.
In this regard, we note in particular our dismay at the absence of an interpreter for the
two non-English speaking witnesses, particularly in light of the judge’s subsequent
conclusion that their admittedly unintelligible testimony was not probative.8 Following Mr.

8
While the Secretary did not move to reopen the record to allow witnesses Espinoza and
(continued...)
 - 10 -

Rojas’ request for translation and obvious difficulty understanding the proceedings, the judge
pointed out that a certified interpreter may assist in Commission proceedings but noted that
“[w]e usually do it ahead of time, if either party lets [the judge] know.” The Secretary had
not requested an interpreter for these witnesses, and the parties questioned Mr. Espinoza and
Mr. Rojas without translation. As the judge noted in his decision, “[b]oth were native
Spanish speakers and it was apparent from their testimony that their command of English
was very limited, a fact that rendered a significant portion of their testimony unintelligible.”
The Commission’s rules provide no express guidance on the use or appointment of
interpreters. In such circumstances, the Commission might proceed under the Federal Rules
of Evidence. Federal Rule of Evidence 604 (“Interpreters”), however, is silent to the issue
here, providing merely that “[a]n interpreter is subject to the provisions of these rules relating
to qualification as an expert and the administration of an oath or affirmation to make a true
translation.” The Federal Rules of Civil Procedure, by which the Commission is also
governed in the absence of an applicable Commission rule, are somewhat, but not decisively,
more helpful, providing that a “court may appoint an interpreter of its own selection and may
fix his reasonable compensation.” Fed. R. Civ. P. 43(f). This rule empowers the court in a
civil proceeding to appoint an interpreter, but does not by its terms require a court to do so.9

8
(...continued)
Rojas to testify with appropriate translation, the lack of such translation and the inferences
drawn by the judge as to the testimony’s probity despite its unintelligibility constitute a part
of the surrounding circumstances we must examine in order to properly apply the fairness
and substantial justice test. We also note that the Commission’s sua sponte direction
authority permits disposition of an issue even in the absence of a party’s request.
9
Although it is not applicable to administrative proceedings, we note that the Court
Interpreters Act, which was enacted by Congress in 1978 (28 U.S.C. §1827) to provide for
interpreters in Federal Courts, applies to the testimony of witnesses in civil matters. The Act
provides in relevant part:

   The presiding judicial officers... shall utilize [an interpreter]... in judicial proceedings
   instituted by the United States, if the presiding judicial officer determines on such
   officer’s own motion or on the motion of a party that such party (including the
                                                                                  (continued...)

- 11 -

   We simply do not know why the Secretary failed to request an interpreter at the

hearing, at least when it became self-evident that the witnesses could not be understood and
were in need of assistance. It is clear, nonetheless, that the failure to provide those invited
to appear before us with the basic means to be effectively understood, particularly on their
explicit request, demeans both the witness and the forum and undermines the credibility,
much less the civility, of the adjudicative process. 10 We need not decide here, however,
whether and under what circumstances Commission judges are obliged to provide
interpreters even absent a party’s request. Rather, under all the circumstances here,
including the judge’s denial of the motion to postpone based, in part, on the presence of
witnesses Espinoza and Rojas, his later denial of the request to reopen, and his decision
simultaneously citing the unintelligibility and irrelevance of the testimony, we find that the

9
(...continued)
defendant in a criminal case), or a witness who may present testimony in such judicial
proceedings --
(A) speaks only or primarily a language other than English; or
(B) suffers from a hearing impairment...
so as to inhibit such party’s comprehension of the proceedings or communication with
counsel or the presiding officer, or so as to inhibit such witnesses comprehension of
questions and the presentation of such testimony.

Id. at §1827(d)(1).
10
While we are reluctant to impose on the respondent the consequences of the Secretary’s
failure to request an interpreter at the hearing, the judge compounded the effect of this failure
by his later treatment of the evidence in his decision. We emphasize that the principles
relevant to the use of interpreters in Commission proceedings that we articulate here are
equally applicable to the witnesses of any party appearing before us. Finally, we note that
our consideration of the use of interpreters here is fully consistent with other efforts by the
Commission such as “E-Z Trial,” a simplified procedure utilized in certain types of cases,
to make Commission procedures more “user friendly” and the outcome of Commission cases
less likely to be distorted by legal technicalities or an imbalance in the legal resources of the
parties.
 - 12 -

absence of an interpreter constituted one of the critical flaws in this proceeding warranting
that the hearing be reopened.
Finally, we consider the effect of reopening the record in this case. In considering
whether it is fair to Oscar Renda to reopen the record here, our inquiry is whether it would
suffer legal prejudice, i.e., be prejudiced in the preparation of its defense. Oscar Renda
makes no specific claim of prejudice to it from reopening the record. It simply cites the
unfairness of offering the Secretary a second chance to obtain testimony that Oscar Renda
argues should have been more timely sought. Although we recognize that Oscar Renda’s
complaint does not amount to legal prejudice, see Genesee Brewing Co., 11 BNA OSHC at
1518, 1983-84 CCH OSHD at p. 33,763 (extra case preparation and similar inconveniences
do not amount to legal prejudice), we do not consider the costs associated with preparing a
case to be a trivial matter. However, even if we were to take these factors into consideration,
when they are measured against the employee fatality and the numerous serious violations
alleged by the Secretary here, they do not affect the conclusion that the principles of
fundamental fairness and substantial justice require that the record be reopened. Equitable
Shipyards, Inc., 12 BNA OSHC at 1290, 1984-85 CCH OSHD at p. 35,161. We find that
the opportunity Oscar Renda will now have to cross-examine the Secretary’s witnesses and
present a defense is sufficient to prevent it from being prejudiced by reopening the record.
Turning to the dissent, we note that our colleague simply rejects our application of the
“fairness and substantial justice” test. She relies, in part, on the Supreme Court’s conclusion
in Martin v. OSHRC and CF&I Steel Corp., 499 U.S. 144, 155 (1991) that “Congress
intended to delegate to the Commission the type of nonpolicymaking adjudicatory powers
typically exercised by a court in the agency-review context.” (Emphasis in original.) Our
colleague further concludes that our application of this test in an effort to insure the integrity
of our proceedings somehow is inconsistent with the Commission’s role of “neutral arbiter”
as set forth in Cuyahoga Valley Ry. v. United Transportation Union, 474 U.S. 3 (1985), and
constitutes a dismissal of the standards of practice to which litigants are normally held. In
 - 13 -

our view, she mischaracterizes and undervalues the roles of both the courts and the
Commission in presiding over litigation.
We are mindful that, as Commissioner Montoya points out, under CF&I Steel the
Commission’s role under the Occupational Safety and Health Act is essentially that of a
court. Chief among the obligations of this role must be the function, inherent in our courts,
of promoting justice and assuring fundamental fairness in proceedings before us. The
principles on which we decide this case expressly inhere in the role of judicial bodies. They
are not, as Commissioner Montoya suggests, creations of “administrative” or “policy”
bodies. Thus, as noted above, the concept of “fairness and substantial justice” is part of and
derived from our court system. See, e.g. Moore Federal Practice, ¶ 59.04[13].
Our dissenting colleague does not question the wisdom with which we apply these
principles to the facts here, but rather appears to be of the view that the principles themselves
have no part in the deliberation of a judicial body. This view is assumed by the dissent
without evident reflection on either the longstanding principles of the judicial process or the
manner in which these principles undergird, and provide a touchstone for, “administrative”
agencies when they act in a “quasi-judicial” capacity.
Similarly, our application of the “fairness and substantial justice” test does not
represent an abrogation of “any recognizable standards” as suggested by our colleague.
While concededly an inquiry into “fairness” is not susceptible to mathematical precision, this
is so because it must include examination of elements which may be both intricate and
variable. Yet as the Third Circuit has so aptly described the quest for due process in Rogal
v. American Broadcasting Companies, Inc., 74 F.3d 40, 44 (3d Cir. 1966):
We have repeatedly emphasized that the requirements of due
process are not reducible to a static formula, but rather are
sensitive to the facts and circumstances of a given case. While
“the fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful manner[,]
the concept is flexible, calling for procedural protection as
dictated by the particular circumstance.” Kahn v. United States,
753 F.2d 1208, 1218 (3d Cir. 1985) (citing Morrissey v. Brewer,
 - 14 -

          408 U.S. 471, 481 (1972)). The determination of the
          appropriate form of procedural protection requires “an
          evaluation of all the circumstances and an accommodation of
          competing interests. The individual’s right to fairness must be
          respected as must the court’s need to act quickly and
          decisively.” Eash, 757 F.2d at 570 (citations omitted).

Or, as the Supreme Court stated in Michell v. W.T. Grant Company, 416 U.S. 600, 610
(1974):
The requirements of due process of law “are not technical, nor
is any particular form of procedure necessary.” Inland Empire
Council v. Millis, 325 U.S. 697, 710 (1945). Due process of
law guarantees “no particular form of procedure; it protects
substantial rights.” NLRB v. Mackay Co., 304 U.S. 333,
351(1938). “The very nature of due process negates any
concept of inflexible procedures universally applicable to every
imaginable situation.” Cafeteria Workers v. McElroy, 367 U.S.
886, 895(1961); Stanley v. Illinois, 405 U.S. 645, 650 (1972).

Thus, while the inquiry may be less neat and predictable than our colleague fancies, it is not
one we can simplify or avoid if we are to maintain the integrity of our procedures. Indeed,
rather than being an abrogation of standards, application of the test is essential to uphold
them and to foster the respect that the adjudicatory process must harbor in order to fulfill its
role in our system of government.11
In short, the dissent does not recognize that the concepts on which we rely are derived
from the judicial process itself to address circumstances, such as those here, where issues are
raised that bear on the integrity and neutrality of that process. As we proceed under these
rules and concepts, it is certainly possible that others may differ with the particulars of our
analysis or the conclusions we draw. The dissent, however, declines even to recognize the

11
As evidenced by the application of these principles in favor of the respondent rather that
the Secretary in Equitable Shipyards, the pursuit of “fundamental fairness and substantial
justice” is in the interest of all litigants, and does not favor any one party in Commission
proceedings.
 - 15 -

existence of such rules or to engage in the analysis required by the adjudicatory role of the
Commission.
Finally, and as a corollary to the above, contrary to our dissenting colleague,
reopening of the record here would not thrust the Commission into the policymaking role
proscribed by the Supreme Court. We would not assume that by merely remanding this
proceeding for further hearing we are thereby fixing the outcome or ensuring the “success”
of one party or the other. Nor do we consider such a remand as somehow usurping the
Secretary’s prosecutorial discretion. Indeed, under the Supreme Court’s Cuyahoga decision,
the Secretary may withdraw a citation at anytime. That is the express holding in Cuyahoga.
We do not know why the Secretary has not chosen to do so thus far in this case any more
than we know why he elected not to seek review of the judge’s decision. However, nothing
in this decision forecloses the Secretary’s right to decline to pursue this case further by
withdrawing the citation.12
Accordingly, we vacate the judge’s decision and remand the case for reopening the
record to permit, at the request of the Secretary, the testimony of Compliance Officer
McDavid and witnesses Espinoza and Rojas, with appropriate interpretation, and further to
permit the Respondent to cross-examine these witnesses and present such rebuttal evidence
as is deemed appropriate.

                                                 /s/
                                                 Stuart E. Weisberg
                                                 Chairman

12
We note that our dissenting colleague speculates on the status of claims that family
members of the deceased worker may have raised elsewhere, and appears to conclude that
the resolution of these claims moots the matter here. The record does not contain specific
information on the nature of any collateral claims or their disposition. In any event, we
simply note that the public interest in our proceedings is not satisfied by the availability of
any private remedies.
 - 16 -

                               /s/
                               Daniel Guttman
                               Commissioner

Dated: January 29, 1997
MONTOYA, Commissioner, dissenting:
I strongly disagree with the majority’s decision that this case be remanded for further
proceedings on a reopened record. Not only did the Secretary seek no such relief from the
Commission, but the majority has made no finding that Judge Stanley M. Schwartz abused
his discretion in dismissing these citations. Under these circumstances, I can only assume
that my colleagues are seeking to arrogate to themselves a share of the enforcement role that
Congress intended to lie exclusively with the Secretary.
The Secretary’s failure to prepare this case for trial was, of course, inexcusable. This
more than explains why the Secretary did not seek review of Judge Schwartz’ decision.
Despite at least two weeks of advance notice that the compliance officer had been
terminated, the Secretary did not even attempt service of a subpoena to secure her appearance
until the night before the hearing. As for the Spanish-speaking witnesses, the failure of the
Secretary to arrange for an interpreter tells me that these witnesses were not even interviewed
by the Secretary in preparation for this trial. These failures are all the more disturbing when
one considers the severity of the accident that led to the inspection, and the allegations that
are made in the complaint. The majority apparently concurs in this view, as they have not
found that the judge abused his discretion by dismissing the Secretary’s citations. See
Philadelphia Constr. Equip., Inc., 16 BNA OSHC 1128, 1131, 1993 CCH OSHD ¶ 30,051,
p. 41,295 (No. 92-899, 1993)(“A judge has very broad discretion in imposing sanctions for
non-compliance with Commission Rules of Procedure or the judge’s orders . . . In
determining whether a sanction imposed by a judge is too harsh, the test is whether the judge
abused his discretion.”). See also Sealtite Corp., 15 BNA OSHC 1130,1134, 1991-93 CCH
OSHD ¶ 29,398 , pp. 39,582-3 (No. 88-1431, 1991).
Instead, the majority has said that “fairness and substantial justice” require that the
record be reopened, thereby allowing the Secretary a second opportunity to try this case.
Certainly no one would deny that the family of the deceased employee has suffered a great
personal tragedy. However, since the OSH Act itself provides no relief for the families of
affected employees, cf. Georgia-Pacific Corp., 15 BNA OSHC 1127, 1129 n.3, 1991-93
CCH OSHD ¶ 29,395, p. 39,576 n.3 (No. 89-2713, 1991) (no basis for intervention found
 -2-

when former employee sought to represent interests of family members she alleged to be
suffering from exposure to plant emissions), and since all collateral claims brought by the
families of the employees affected here have apparently been resolved, it is entirely unclear
to me to whom the majority believes the duty of fairness and substantial justice is owed. Is
the majority announcing that fairness and substantial justice so favor regulatory action as to
compel the Commission and its judges to insure the successful prosecution of an employer
whenever a case involves employee fatalities and allegations of serious violations? Does the
majority intend for the Commission and its judges to excuse, on their own motion as here,
all failures on the part of the Secretary’s prosecutors in such cases in the interest of fairness
and substantial justice?13 Should the Secretary’s proof fail again upon the rehearing
contemplated by the remand order, will the majority conclude that fairness and substantial
justice require the continued sua sponte reopening of this record?
Congress has expressly charged the Commission with "carrying out adjudicatory
functions under" the Occupational Safety and Health Act of 1970 (the OSH Act). 29 U.S.C.
§ 651(b)(3). In recent years, the Supreme Court has twice examined the Commission’s
authority under this section. In Cuyahoga Valley Ry. v. United Transportation Union, 474
U.S. 3 (1985) the court characterized the OSH Act itself as "a detailed statutory scheme
which contemplates that the rights created by the Act are to be protected by the Secretary.”
Id. at 6. Recognizing that "[i]t is clear that enforcement of the Act is the sole responsibility
of the Secretary," the Court went on to state that "[t]he Commission’s function is to act as
a neutral arbiter." Id. at 7. In Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144, 155
(1991) the Court repeated the "neutral arbiter" language of Cuyahoga while adding this
further perspective:
Insofar as Congress did not invest the Commission with the power to make
law or policy by other means, we cannot infer that Congress expected the

13
The majority’s willingness to ignore civil procedure becomes even more untenable when
one considers that OSH Act section 12(g), 29 U.S.C. § 661(g), makes the Federal Rules of
Civil Procedure applicable to Commission proceedings.
 -3-

   Commission to exercise its adjudicatory power to play a policymaking role . . .
   Consequently . . . we think . . . that Congress intended to delegate to the
   Commission the type of nonpolicymaking adjudicatory powers typically
   exercised by a court . . . .

(emphasis in original). Id. at 154.
These current Supreme Court definitions of the Commission’s role have corrected the
mistaken belief, common to earlier court cases under the OSH Act, that the Commission is
a conventional regulatory agency with a public policy role to fulfill. In Brennan v. OSHRC
(John J. Gordon Co.), 492 F.2d 1027, 1032 (2d Cir. 1974), for instance, the Second Circuit
stated that “the right of the public must receive active and affirmative protection at the hands
of the Commission,” a quotation that court borrowed from Scenic Hudson Preservation Conf.
v. F.P.C., 354 F.2d 608, 620 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966).14 In CF&I
Steel Corp., 499 U.S. at 151, however, the Supreme Court made it clear that “[u]nder the
OSH Act . . . Congress separated enforcement and rulemaking powers from adjudicative
powers, assigning these respective functions to two independent administrative authorities.
The purpose of this “split enforcement” structure was to achieve greater separation of
functions than exists within the traditional ‘unitary’ agency” (emphasis in original).
Rule 92(b) of the Commission’s rules, 29 C.F.R. § 2200.92(b), states that a
Commissioner should not direct review of a judge’s decision on his own motion unless the
"case raises novel questions of law or policy or questions involving conflict in
Administrative Law Judges’ decisions." However, since the majority has not identified an
interested party to whom their announced duty of fairness and substantial justice is owed,
they have failed to establish any recognizable standard by which the law of this case can be
applied to future practice. In the end, the fairness and substantial justice rubric on which this
decision rests cannot disguise the fact that the majority is simply determined that the

14
Brennan v. OSHRC (John J. Gordon Co.), 492 F.2d 1027, 1032 (2d Cir. 1974) remains
relevant here, however, since the Second Circuit decided that the Commission had abused
its discretion by substituting its judgment for that of an administrative law judge with respect
to the reopening of a hearing record.
 -4-

violations alleged in this citation should be fully prosecuted. As a result, I fear that this
decision will merely serve to raise uncertainty as to the Commission’s willingness to abide
by its statutory role as the neutral arbiter of contested cases.

                                               /s/
                                               Velma Montoya

Dated: January 29, 1997 Commissioner