DCS Sanitation Management, Inc. v. Occupational Safety and Health Review Com'n, 95-2779

• Decision Date: 06 May 1996
• Docket Number: No. 95-2779,95-2779
• Citation: 82 F.3d 812
• Parties: 17 O.S.H. Cas. (BNA) 1601, 1996 O.S.H.D. (CCH) P 31,046 DCS SANITATION MANAGEMENT, INC., Petitioner; v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Robert B. Reich, Secretary of Labor, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 812

82 F.3d 812

17 O.S.H. Cas. (BNA) 1601, 1996 O.S.H.D. (CCH)

P 31,046

DCS SANITATION MANAGEMENT, INC., Petitioner; v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Robert B.

Reich, Secretary of Labor, United States

Department of Labor, Respondents.

No. 95-2779.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 14, 1996.

Decided May 6, 1996.

On Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Patrick M. Roby (argued), Cedar Rapids, IA (Christopher L. Bruns, on brief), for petitioner.

Edward O. Falkowski (argued), U.S. Dept. of Labor, Washington, DC (Thomas L. Williamson, Jr., Sol. of Labor, Joseph M. Woodward, Associate Sol. of Occupational Safety and Health, Barbara Werthmann, on brief), for Appellate Litigation.

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 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 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 carveout 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, 107 S.Ct. 2775, 2779-82, 97 L.Ed.2d 144 (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 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, 111 S.Ct. 2274, 114 L.Ed.2d 725 (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 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.

                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, 506 U.S. 835, 113 S.Ct. 107, 121 L.Ed.2d 65 (1992)
                

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), 1910.147(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...