Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue date: 27Jun2002
CASE NO.: 2000-CAA-0020
2001-CAA-0009
2001-CAA-0011
In the Matter of:
MORTON E. CULLIGAN,
Complainant,
v.
AMERICAN HEAVY LIFTING SHIPPING CO. (AHL), LINCOLN NYE,
BOB SCHILLING, and MIKE C. HERIG,
Respondents in Case No. 2000-CAA-0020, and
AMERICAN HEAVY LIFTING SHIPPING CO. (AHL), INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS (MM&P), INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION (ILA), TIMOTHY A. BROWN, and JAMES T. HOPKINS,
Respondents in Case Nos. 2001-CAA-0009 and 2001-CAA-0011.
ORDER GRANTING, IN PART, DENYING, IN PART,
COMPLAINANT'S MOTION TO EXCLUDE
Currently pending before the undersigned is "Complainant's Motion to Exclude All Hearsay Evidence of OSHA Investigation and His Offer of Proof Regarding OSHA Desuetude" (hereafter "Complainant's Motion") filed with this tribunal on June 11, 2002. American Heavy Lifting Shipping Co. (hereafter "AHL") filed a response on June 18, 2002. No response was submitted by International Organization of Masters, Mates and Pilots (hereafter "MM & P"), the second respondent in this action. For reasons set forth below, the motion is GRANTED, IN PART, DENIED, IN PART.
In sum, all of the documents relate to OSHA's investigation of Complainant's complaint. In response, Complaint objected to the admission to every single item on the grounds that they are inadmissable hearsay as well as irrelevant to this action, and seeks a host of remedies for this "improper filing." In its response, AHL states that these documents are all relevant to the jurisdictional and timeliness issues raised in this action and further states that they admissible as public records, pursuant to 29 C.F.R. § 18.803(a)(8), and/or business records under 29 C.F.R. §§ 18.803(a)(6), both of which are exceptions to the hearsay rule.
Discussion and Analysis
Complainant's motion to exclude is granted in part and denied in part, as several of the documents lack sufficient foundation and are rejected on those grounds, while others are either irrelevant or are already in the record as other exhibits.
Two issues need to be addressed preliminarily. First, I note that AHL previously submitted other evidence marked RE 105, 106, 107, and 108 under cover letter dated April 27, 20002, and RE 109 and 110 under cover letter dated April 26, 2002, which will be admitted as complete copies of the excerpts admitted into evidence as CX 6, 9, 10, 11, 27 and 29, respectively. As such, the exhibits listed above marked RE 105 to RE 114 will be remarked as RE 105A through RE 114A. Second, no objection has been raised contesting the authenticity of any of the documents (which are apparently excerpts from the documents provided by OSHA under seal) and, as such, none of the documents will be rejected solely due to lack of authenticity, if the documents are deemed to be probative. See 29 C.F.R. § 24.6(e)(1).
Finally, as a preface to the rulings made below, I note that formal rules of evidence are inapplicable to proceedings under the environmental statutes and the administrative law judge is vested with great authority to make evidentiary determinations. Id.See also 29 C.F.R. §§ 18.102, 18.104. Although not strictly applicable, I look to the evidentiary rules in 29 C.F.R. Part 18 for guidance. It is within this framework that Complainant's and AHL's motions will be addressed.
1 References to the hearing transcript appear as "Tr." followed by the applicable page number(s).
2 "RE" means "Respondent AHL's Exhibit;" "OSHA" means "Occupational Safety and Health Administration;" and "RU" means "Respondent Union's Exhibit."
3 As noted infra, the items listed herein as RE 105 through RE 114 are being renumbered as RE 105A through RE 114A, respectively.
4 In its request, AHL submitted a photocopy of the original Records Authentication Certificate, explaining that the original was forwarded to this tribunal during the hearing. As such, the original is being substituted for the photocopy. SO ORDERED. However, the substitution does not ensure the document's admissibility.
5 Substantively, RE 112A is identical to RE 41. I note that the only difference is RE 41 indicates who the author of the letter is. However, neither copy is signed by the author.
6 I do note here that RE 45 was offered at the hearing and rejected if being used as proof of the findings contained therein, as the rules of procedure governing this complaint call for a de novo hearing before this tribunal if the OSHA Assistant Secretary's initial determination is appealed. (Tr. at 610-12); see 29 C.F.R. § 24.4(d)(2) (2001). Thus, the findings contained in RE 45 have no bearing on this action. However, I left open the possibility that it could be admissible if offered solely on the issues of jurisdiction and timeliness, and I now modify my ruling to so provide. (Tr. at 610-12; see also Tr. at 703 (allowing the parties to submit additional evidence to supplement the record on the timeliness and jurisdictional issues)).
7 I further find that each of these particular documents would be independently admissible under the "catch-all" hearsay provision of 29 C.F.R. § 803(a)(24).