871 F. 2d 155 - Otis Elevator Company v. Secretary of Labor and Occupational Safety and Health Administration

Before HARRY T. EDWARDS and Ruth B. GINSBURG, Circuit Judges, and KAUFMAN, United States Senior District Judge*.

The petition was considered on the record from the Occupational Safety and Health Review Commission and on the briefs and oral arguments of counsel. The Court concludes that appropriate disposition of the case does not warrant an opinion. See D.C.Cir.Rule 14(c).

We uphold the Commission's finding that petitioner failed to render its workplace free of a recognized hazard likely to cause death or serious physical harm. See National Realty & Health Review Comm'n, 489 F.2d 1257, 1265 (D.C.Cir.1973). The Administrative Law Judge's ("ALJ") factual determination that the potential danger posed by a falling hydraulic elevator was recognized industry-wide was amply supported by substantial evidence on the record considered as whole. See 29 U.S.C. Sec. 660(a) (1982). Specifically, the ALJ adequately substantiated his finding by relying on evidence submitted by "[t]he Secretary's expert witnesses, together with the responses received from three industry and union spokesmen." Joint Appendix at 20.

Because we decide this case on the finding of a recognized industry hazard, we need not decide whether Otis employees had actual knowledge of the potential danger. Thus, it is unnecessary for us to rule on whether challenged statements included in the police report submitted at the hearing would be admissible under any of the Federal Rules of Evidence as not hearsay or pursuant to a hearsay exception. It is therefore

ORDERED and ADJUDGED that the petition for review be denied.