Jindal United Steel Corp.

Read the official release (oshrc.gov)

Plain-English summary

The ALJ affirmed 110 violations for failing to properly record occupational injuries and illnesses at Jindal's steel facility. He treated 82 violations as willful and 28 as other-than-serious, but grouped the willful items into a single $70,000 penalty and assessed $7,000 for the remaining items. The Fifth Circuit held that grouping the separately cited willful violations produced a penalty below the statutory range. The court vacated the penalty assessment and returned the case to the Commission. The Commission remanded the matter to the ALJ for proceedings consistent with the court's opinion.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.2(a)
• Outcome: The case was remanded for reassessment of penalties on the affirmed recordkeeping violations.
• Key point: Separately cited willful violations cannot be grouped in a way that produces a penalty below the statutory minimum applicable to each violation.

Full text (OSHRC public release)

Jindal United Steel Corp., Docket No. 00-2231

SECRETARY OF LABOR,

Complainant

v.

OSHRC Docket No. 00-2231

JINDAL UNITED STEEL CORP, and it’s
successors,

Respondent.

APPEARANCES :

Gary K. Stearman, Attorney; Michael P. Doyle, Counsel for Appellate Litigation;
Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health;
Gregory F. Jacob, Deputy Solicitor of Labor; Howard M. Radzely, Solicitor of
Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Thomas H. Wilson, Esq. and Sean M. Becker, Esq.; Vinson & Elkins, LLP.,
Houston, Texas

For the Respondent

REMAND ORDER

Before: THOMPSON, Chairman; ROGERS, Commissioner.

BY THE COMMISSION:

This case is before the Commission on remand from the United States Court of
Appeals for the Fifth Circuit. Chao v. Occupational Safety & Health Review Comm’n ,
480 F.3d 320 (5th Cir. 2007). The court reviewed the decision of Administrative Law
Judge James H. Barkley, which became a final order of the Commission when the two
then-sitting commissioners reached an impasse regarding the case’s disposition and,
therefore, agreed to vacate the Commission’s direction for review. Jindal United Steel
Corp. , 21 BNA OSHC 1298 (No. 00-2231, 2005). On appeal, the court vacated the
judge’s penalty assessment, finding that he erroneously grouped separate willful
violations and assessed a single grouped penalty below the statutory range mandated by
section 17(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 666(a).

By mandate dated May 9, 2007, the court ordered the judge’s decision vacated and
remanded “for further proceedings in accordance with the opinion of th[e] court.”
Accordingly, we hereby remand this case to the judge for further proceedings consistent
with the court’s opinion.

SO ORDERED.

/s/

Horace A. Thompson III

Chairman

/s/

Thomasina V. Rogers

Commissioner

Dated:August 16, 2007

SECRETARY OF LABOR

Complainant

v.

OSHRC Docket No. 00-2231

Jindal United Steel Corp., and it’s
sucessors

Respondent

DECISION

Before: RAILTON, Chairman; and ROGERS, Commissioner.

The Occupational Safety and Health Administration ( “ OSHA”) inspected Jindal
United Steel Corporation’s (“Jindal”) manufacturing facility in Baytown, Texas from May 10,
2000 until October 19, 2000. The Secretary cited Jindal for numerous alleged willful and
serious violations of various standards under the Occupational Safety and Health Act of 1970,
29 U.S.C. §§ 651-687 (“OSH Act” or “Act”). The parties resolved, by settlement agreement
and joint stipulation, all of the citations except certain items pertaining to Jindal’s alleged
failure to properly record occupational illnesses and injuries in violation of 29 C.F.R. §
1904.2(a).

The Secretary cited the recordkeeping violations as willful on a per-instance basis,
and proposed a penalty of $9,000 for each of the violations. Administrative Law Judge James
H. Barkley affirmed 110 separate recordkeeping violations, but grouped them for penalty
purposes, assessing a single penalty of $70,000 for the eighty-two items he affirmed as willful,
and $7,000 for the twenty-eight items he affirmed as other-than-serious.

On review, Jindal contests only the characterization of the eighty-two citations
that the judge affirmed as willful, and argues for lower penalties. The Secretary argues that all
of the violations were willful and challenges the judge’s penalty grouping. The two
Commission members would affirm the judge’s characterization of the eighty-two willful
violations, but are divided as to the characterization of the remaining twenty-eight violations
and the appropriate penalty assessment for the willful violations.

Official action of the Commission requires the affirmative vote of two members on all
dispositive issues. OSH Act, § 12(f), 29 U.S.C. § 661(e). In view of the absence of such
agreement here and to resolve this impasse, the Commission members agree to vacate the
direction for review, thereby allowing the judge’s Decision and Order to become the final
appealable order of the Commission with the precedential value of an unreviewed judge’s
decision.

See e.g. , The Timken Co. , 20 BNA OSHC 2034 (No. 97-1457, 2004), and cases
there cited. See also sections 10(c), 11(a) and (b), and 12(j) of the Act, 29 U.S.C. §§ 659(c),
660(a) and (b), and 661(i). Accordingly, the direction for review is hereby vacated. The
separate views of the two Commission members follow.

SO ORDERED.

/s/

W. Scott Railton

Chairman

/s/

Thomasina V. Rogers

Commissioner

Dated: September 28, 2005

I. The characterization of Jindal’s recordkeeping violations

Jindal commenced operation in 1997 at a former USX steel facility where it operates the
plate mill portion of a steel manufacturing business. Jindal shares the business with Saw Pipes
USA, Inc., a related company located at the same facility that manufactures steel pipe.

The
two companies share some common ownership and some managerial personnel. On review,
Jindal does not dispute that it failed to properly record 74% of the recordable illnesses and
injuries on its OSHA 200 log in 1998, 84% in 1999, and 53% for the first half of 2000.
Having thoroughly reviewed the record in this case, Chairman Railton and Commissioner
Rogers agree that the judge’s factual findings are fully supported by the testimony and
evidence. In addition, they would agree with the judge, for the reasons he articulated, that the
recordkeeping errors attributable to employees Craig Wetherington and Lisa White were
willful.

As the Commission stated in Kaspar Wire Works, Inc. , “[t]he hallmark of a willful
violation is the employer’s state of mind at the time of the violation — an ‘intentional,
knowing, or voluntary disregard for the requirements of the Act or . . . plain indifference to
employee safety.’” 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000) (citation omitted), aff’d ,
268 F.3d 1123 (D.C. Cir. 2001). “[T]he Secretary must show that the employer acted
voluntarily, with either intentional disregard of or plain indifference to OSHA requirements.”
Georgia Elec. Co. v. Marshall , 595 F.2d 309, 317-319 (5th Cir. 1979). Accord AJP Constr.
Inc. v. Secretary , 357 F.3d 70, 74 (D.C. Cir. 2004). Here, the evidence shows that Jindal
managerial personnel intentionally implemented recordkeeping practices that they knew were
incorrect. Gary Jones, human resources and labor relations director for Saw Pipes who hired
and supervised Jindal recordkeeper Craig Wetherington, was the architect of Jindal’s
recordkeeping program. Despite Wetherington’s repeated protests, Jones instructed
Wetherington to record on the OSHA 200 only those injuries reported to workers’
compensation, which excluded injuries for which Jindal absorbed the cost of an employee’s
lost work time and medical treatment. He also instructed that Jindal would not record on its
OSHA log the injuries and illnesses of the temporary laborers who worked at the plant.
Wetherington advised Jones that these recordkeeping practices were not consistent with his
prior experience or with OSHA published recordkeeping guidelines, and that following them
would leave “the company wide open for problems with OSHA and other people.” According
to Wetherington, Jones rejected his concerns and told him that if he could not comply with
Jones’ instructions “there’s the door.”

Wetherington complained about Jones’ recordkeeping practices to Jindal human
resources manager Lisa White and plant manager Doug Gates, but to no avail. Gates told
Wetherington that Jones “is the one that’s running the program. It’s his way.” Similarly,
White stated that Jones “had the final word on that. We have to go by what he says, period.”
Wetherington testified that when he told Gates that by following Jones’ instructions he was
failing to comply with OSHA recordkeeping requirements, Gates recommended that he protect
himself by writing a memorandum to that effect. White corroborated Wetherington, testifying
that Wetherington “had approached both myself and Doug Gates with his concerns. His
concerns were that he was being directed to do this by his supervisor; however, he knew that
this was a violation of the recordkeeping requirements, but he needed his job and he was
fearful that if he did not do as instructed, he might lose his job. So it was Doug Gates and my
recommendation to go ahead and just note that to the file so that he would have a cover for
himself should anything ever arise.”

White also echoed Wetherington’s concerns, testifying that she was “afraid that
subsequently if OSHA were to come in and do a recordkeeping audit or any kind of another
audit on us, that we would be exposed to great citations from that.” Nonetheless, when White
briefly assumed responsibility for completing Jindal’s OSHA logs following Wetherington’s
resignation, she chose to continue the established recordkeeping practices, admitting that she
knowingly failed to properly record injuries at that time. In these circumstances, Chairman
Railton and Commissioner Rogers fully agree with the judge’s conclusion that Jindal
intentionally disregarded its recordkeeping responsibilities in willful violation of the Act for the
errors attributable to employees Craig Wetherington and Lisa White. AJP Constr. Inc. v.
Secretary , 357 F.3d at 74 (affirming willful violation where employer knew of standards’
requirements and had notice of deficiencies in compliance).

David McIntosh succeeded Craig Wetherington as Jindal safety manager, a position he
held from November 8, 1999 until June 26, 2000. Although Jindal never expressly assigned to
McIntosh the responsibility for maintaining the OSHA 200 logs, McIntosh voluntarily relieved
Lisa White of the task when he became concerned about the approaching February posting
deadline. During McIntosh’s tenure, there were twenty-eight recordkeeping errors on Jindal’s
OSHA 200 log.

For the following reasons, Chairman Railton agrees with the judge that these violations
were not willful. McIntosh noticed that Jindal had been erroneously neglecting to report the
occupational injuries not submitted for workers’ compensation. He testified, however, that he
did not follow Jones’ “unwritten” policies, nor did he consciously fail to record a reportable
injury. While McIntosh did fail to record some of the injuries that occurred in the first half of
2000, there was a marked improvement over the 84% error rate of the previous year. McIntosh
attributed his errors to lack of adequate time and information, and the Secretary has provided
no basis from which to conclude that they were purposeful. Based on this evidence, Chairman
Railton would find that McIntosh’s decision to reject the prior recordkeeping policies and
transform Jindal’s program showed that his errors were merely negligent. See American
Wrecking Corp. v. Secretary , 351 F.3d 1254, 1264 (D.C. Cir. 2003) (finding “mere negligence”
insufficient to establish willfulness).

Chairman Railton would also reject the Secretary’s contention that Jindal management’s
“failure to inquire whether Wetherington and White’s concerns were justified after McIntosh
became safety manager . . . demonstrated plain indifference.” In his view, although insufficient
to bring Jindal fully into compliance, McIntosh’s efforts transformed Jindal’s recordkeeping
practices, negating Jones’ abject disregard for OSHA’s recordkeeping requirements that Gates
and White never endorsed. Compare Caterpillar, Inc ., 17 BNA OSHC 1731, 1732 (No. 93-373, 1996), aff’d , 122 F.3d 437, 440-41 (7th Cir. 1997) (affirming willful violation despite
change in personnel where violation recurred in otherwise unchanged circumstances).
Accordingly, Chairman Railton would affirm the judge’s characterization of these twenty-eight
recordkeeping violations as other-than-serious.

On the other hand, Commissioner Rogers would affirm the additional twenty-eight
recordkeeping violations as willful. Jindal explicitly hired David McIntosh to replace Craig
Wetherington as safety manager. McIntosh took up residence in Wetherington’s former office
and determined his job duties from a review of Wetherington’s files. Those files enabled
McIntosh to determine “what Craig had done out there,” and included accident reports and
incomplete OSHA logs. Based on McIntosh’s own description of his orientation to the safety
manager position at Jindal, management never instructed him in any of the particular
requirements of his job. Rather, he was left to divine the job’s dimensions based on what his
predecessor had done. In these circumstances, McIntosh’s denial of responsibility for the
OSHA 200’s, because “it was never designated as [his],” is contradictory and disingenuous.
Moreover, despite McIntosh’s claim that he did not follow Jones’ unwritten policies and never
consciously failed to record a reportable event, McIntosh admitted that there were injuries
reported to him that he believed should have been recorded on the OSHA 200s, that he did not
record. In view of McIntosh’s demonstrated knowledge of recordkeeping requirements, which
was sufficient to inform his rejection of Jones’ erroneous guidelines, Commissioner Rogers
would find that his knowing failure to properly record injuries and illnesses demonstrates
conscious disregard for the requirements of the Act.

Commissioner Rogers also disagrees that McIntosh’s recordkeeping efforts, designed to
“just [] try to keep us covered in case something like this [OSHA inspection] did happen,”
transformed Jindal’s intentional disregard for OSHA recordkeeping into mere negligence.
Jindal managers White and Gates permitted Jones to direct Jindal personnel to incorrectly
record injuries and illnesses. After McIntosh replaced Wetherington, these same managers did
nothing to dismantle the violative recordkeeping practices and policies that prevailed at the
plant, nor did they convey to McIntosh precisely what was expected of him. Jindal cannot
escape willfulness merely by allowing violative practices of which it was aware to continue,
notwithstanding the change of recordkeepers. McIntosh’s modest efforts cannot cure Jindal’s
failure to inform its new safety manager of the “pervasive and continuing nature” of the
recordkeeping problem and instruct him in the correct procedures. See Caterpillar, Inc ., 17
BNA OSHC at 1732-33 (affirming willful violation where corporation failed to convey to new
supervisors “relevant and available information it possessed and which, under the Act, it was
responsible for disseminating to those entrusted with the health and safety of its employees”).
Accordingly, Commissioner Rogers would affirm all 110 of Jindal’s recordkeeping violations
as willful.

II. Penalties

The judge affirmed 110 separate violations for Jindal’s 110 recordkeeping errors, which
the Secretary had cited on a per-instance basis and which the parties do not contest on review.
With respect to the penalties, however, the judge rejected the Secretary’s proposal of $9,000
for each willful violation and, instead, assessed a single grouped penalty of $70,000. On
review, the Secretary challenges the propriety of the judge’s grouping of the willful violations
and penalty assessment.

Chairman Railton’s Views

The Secretary’s citation and penalty policy invoked here is guided by a strategy of
compliance inducement through enhanced penalties in cases deemed “egregious/willful.”
Pursuant to this policy, in cases involving willful violations that meet other specified criteria,
the Secretary considers departing from her usual practice of issuing a single citation and single
proposed penalty for all alleged violations of the same standard or regulation. Where applied,
the Secretary, instead, alleges a separate violation and proposes a separate penalty for each
instance of noncompliance. See OSHA Instruction CPL 2.80, Handling of Cases to be
Proposed for Violation-by-Violation of Penalties, 1 BNA OSHR Ref. File 21:9649, 9650
(October 1, 1990).

The Secretary may issue per-instance citations where supported by the language of the
standard and where the record establishes the facts sufficient to support each alleged violation.
Chao v. OSHRC (Eric K. Ho) , 401 F.3d 355 (5th Cir. 2005) (concluding that standard “can be
interpreted to allow for citation on a per-employee basis” but noting absence of “employee-specific unique circumstances that could merit citation based on each failure to train an
individual employee”). Recordkeeping citations based on separate and distinct recording errors
meet those criteria. E.g., Caterpillar, Inc., 15 BNA OSHC 2153, 2170-71 (No. 87-922, 1993).

Where the cited provision is found susceptible to per-instance citation, the Commission
has generally also assessed individual penalties. However, as we recently stated in Eric K. Ho ,
“[t]he Commission has taken several steps on the road to assessing individual penalties for per-instance violations[,]” and the law in this area is “still developing.” 20 BNA OSHC 1361,
1370 (No. 98-1645, 2003) (consolidated), aff’d, 401 F.3d 355 (5th Cir. 2005). In Chairman
Railton’s view, this case compels the Commission to further define the basis upon which it will
determine the “appropriate” penalty assessment in cases cited under the egregious/willful
policy. See OSH Act, section 17(j).

In this regard, Chairman Railton notes that the Secretary’s decision to invoke the
egregious policy to propose separate penalties is made before an evidentiary record is
compiled. In contrast, the Commission’s decision to assess penalties is based upon the
evidence adduced in the record as a whole following an evidentiary hearing. See Hern Iron
Works Inc. , 16 BNA OSHC 1619, 1623 (No. 88-1962, 1994) (“evaluation of . . . penalty factors
are issues of fact, the resolution of which is the exclusive province of the Commission”). As
the reviewing body within the administrative process, the Commission is best able to determine
whether the grounds upon which the penalties were proposed warrant application of the
egregious policy at the penalty assessment stage. See, e.g., Butz et al v. Glover Livestock
Comm’n , 411 U.S. 182 (1973). Accordingly, the Commission must evaluate whether the
record evidence is sufficient to satisfy the egregious/willful criteria in determining whether to
assess separate penalties for per-instance citations. To date, the Commission has never
addressed the obvious gap between the Secretary’s policy and evidentiary insufficiency. Such
a reasoned step must be taken to ensure that the evaluation of penalty factors (issues of fact)
remain the exclusive province of the Commission.

Under the Secretary’s seven-factor test, per-instance penalties may be proposed when
the cited violations are willful and egregious, in that they are particularly high gravity or the
employer showed significant bad faith. The first factor plus one of the other six are required to
support a recommendation for per-instance citations and penalties. The criteria are (1) the
elements of a willful characterization; (2) a worker fatality, other catastrophe, or high number
of injuries/illnesses; (3) persistently high injury/illness rates; (4) extensive history of prior
violations; (5) intentional disregard of safety and health responsibilities; (6) clear bad faith; and
(7) such a large number of violations so as to significantly undermine any safety and health
program. Of course, these elements are already subsumed within the four statutorily prescribed
factors upon which the Commission determines the appropriate penalty under section 17(j).

Chairman Railton would find that the evidence here is insufficient to justify per-
instance penalties under the Secretary’s test. The judge found that the evidence established that
the violations were willful, and that Jindal intentionally disregarded its recordkeeping
responsibilities. As the essential basis of the willful characterization, however, the “intentional
disregard” factor here is thoroughly redundant and, as such, cannot satisfy the “plus one”
requirement of the Secretary’s seven-factor test. In the absence of any other indicia of bad
faith, and because the violations are of particularly low gravity, application of the violation-by-violation penalty policy is not merited.

With respect to the $5,000 minimum willful penalty contained in the Omnibus Budget
Reconciliation Act of 1990, Pub. L. No. 101-508, § 3101 (1990), Chairman Railton would note
that the amendments are not the straitjacket that the Secretary would aver, either for the
Commission or for the Secretary herself. Although the Secretary contends that it would be
“clear error” to assess a penalty that is less than the “statutory minimum” for each willful
violation, Congress intended some flexibility in applying the new penalty structure. As the
House Conference Report states, “[t]he conferees d[id] not intend to deprive [OSHA] of the
flexibility to settle cases involving willful violations, where appropriate , for amounts which are
less than the mandatory minimums.” h.r. conf. rep. no. 101-964, reprinted in 1990
U.S.C.C.A.N. 2374, 2393-94 (emphasis added).

The “appropriateness” benchmark identified in the committee report is identical to that
which the Commission also must satisfy in exercising its penalty-setting authority pursuant to
section 17(j). A total penalty here consisting of $5,000 for each of the eighty-two violations
affirmed as willful would amount to $410,000. That is an extraordinary and unprecedented
sum for even the largest and most egregious of recordkeeping cases. These circumstances raise
the question whether, under the Secretary’s approach, there would be any limit to the total
penalty for cases involving large numbers of willful recordkeeping errors. The Commission
has long cautioned against such a result, emphasizing that:

The key question for penalty purposes is not how many errors or omissions there
[are], but what penalty is appropriate. Thus, although the Secretary may cite
separate omissions to record injuries as separate violations, he may not exact a
total penalty that is inappropriate in light of the four factors listed in section 17(j)
of the Act: the gravity of the violations, the employer’s good faith, its size, and its
history of violations.

Caterpillar, 15 BNA OSHC at 2173.

In his application of the 17(j) factors here, the judge properly considered Jindal’s size of
250 employees, the lack of prior OSHA inspections, and “deliberate nature of the violations.”
Following well-settled precedent, he focused on the gravity of the violations as the most
significant consideration in assessing the penalty. Chao v. OSHRC (Erik K. Ho) , 401 F.3d at
376, and cases there cited. Gravity generally includes a number of factors, including the
number of employees exposed to the hazard, the duration of their exposure, the precautions
taken to prevent injury, and the degree of probability that an injury would occur. E.g . Kus-Tum
Builders, Inc. , 10 BNA OSHC 1128, 1132 (No. 76-2644, 1981). The Commission has long
held, however, that recordkeeping violations are of low gravity. See Caterpillar , 15 BNA
OSHC at 2178; Pepperidge Farm, Inc ., 17 BNA OSHC 1993, 2001 (No. 89-0265, 1997);
Kaspar , 18 BNA OSHC at 2185.  

Based on the record evidence, Chairman Railton agrees that in addition to the low
gravity of recordkeeping violations in general, the injuries and illnesses that went unrecorded
here were relatively minor. As the judge stated, “[e]ven under the Secretary’s theory of the
case, Respondent reported major injuries to Workers’ Compensation as well as to OSHA while
only the more marginal, or less serious injuries went unreported.” Accordingly, based on all of
the section 17(j) factors, Chairman Railton would affirm the judge’s penalty assessment of a
single grouped penalty of $70,000 for Jindal’s eighty-two willful recordkeeping violations.

Commissioner Rogers’ Views

It is undisputed that the judge correctly affirmed separate violations for each of Jindal’s
separately cited recordkeeping errors, and his rulings to that effect are not on review. Eric K.
Ho , 20 BNA OSHC at 1370; Kaspar Wire Works, Inc., 18 BNA OSHC at 2185; Caterpillar,
Inc., 15 BNA OSHC at 2173. Both commissioners also agree that the record evidence and
applicable law support the judge’s characterization of the eighty-two recordkeeping violations
he affirmed as willful. Commissioner Rogers believes, however, that the assessment of a
single $70,000 penalty for the eighty-two affirmed willful violations is precluded by the OSH
Act’s penalty provisions. Rather, once having found eighty-two separate willful violations, the
Commission must assess a penalty of at least $5,000 for each such violation.

As originally passed, the OSH Act provided that an employer “may be assessed” a
maximum $10,000 penalty for “each [willful] violation.” 29 U.S.C. § 666(a). Unlike the
provision pertaining to serious violations, which prescribed that a penalty of up to $1,000
“ shall be assessed[,]” there was no minimum penalty required for a willful violation. 29 U.S.C.
§ 666(b) (emphasis added). In 1990, Congress revised the OSH Act’s penalty provisions by
increasing the penalty amounts for all violations seven-fold, and establishing a minimum
penalty for willful violations as follows.

Any employer who willfully or repeatedly violates the requirements of
section 654 of this title, any standard, rule or order promulgated pursuant to
section 655 of this title, or regulations prescribed pursuant to this chapter, may be
assessed a civil penalty of not more than $70,000 for each violation, but not less
than $5,000 for each willful violation.

Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 3101 (1990), 29 U.S.C. §
666(a) (emphasis added). Accordingly, this case presents, for the first time, the question
whether the Commission may now assess an aggregate penalty for multiple affirmed violations
that amounts to less than $5,000 for “each [willful] violation.”

The fundamental principle of statutory construction is that statutory language is to be
construed according to its plain meaning. Caminetti v. United States , 242 U.S. 470, 485
(1917). When the language is plain, “ ‘the sole function of the courts . . . is to enforce it
according to its terms’ ” unless the result would be “absurd.” Hartford Underwriters v. Union
Planters , 530 U.S. 1, 6 (2000) (citations omitted). Thus, the first step in statutory construction
is the wording of the statute itself which, if unambiguous, obviates reliance on legislative
history or other external sources. E.g., Consumer Product Safety Commission v. GTE , 447 U.S.
102, 108 (1980) (“starting point for interpreting a statute is the language of the statute itself . . .
[which,] absent a clearly expressed legislative intention to the contrary, . . . must ordinarily be
regarded as conclusive”); Arcadian Corp. , 17 BNA OHSC 1345, 1347 (No. 93-3270, 1995)
(“‘[i]n a statutory construction case, the beginning point must be the language of the statute,
and when a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning,
in all but the most extraordinary circumstances, is finished’” (citations omitted)), aff’d 110 F.3d
1192 (5th Cir. 1997).

Commissioner Rogers would find that the words “not less than $5,000 for each willful
violation” mean just that. See Connecticut Nat. Bank v. Germain , 503 U.S. 249, 254 (1992)
(explaining that Congress “says in a statute what it means and means in a statute what it says”).
In her view, these words are unambiguous and can only be read to require that at least $5,000
must be assessed for each affirmed willful violation. See Kaspar Wire Works Inc. v. Secretary ,
268 F.3d 1123, 1130 (D.C. Cir. 2001) (finding that “plain language of the Act could hardly be
clearer” that per-instance penalties are “consistent with the general principle that each violation
of a statutory duty exposes the violator to a separate statutory penalty”).

The legislative history emphatically supports this interpretation, clarifying that “[i]n
order to ensure that the most egregious violators are in fact fined at an effective level, the
conferees . . . adopted a mandatory minimum penalty of $5,000 for a willful violation of the
OSH Act . . . [a]s a penalty floor that is not intended to become a penalty ceiling.” H.R.Rep.
No. 101-881, reprinted in 1990 U.S.C.C.A.N . 2050, 2393-94. The seven-fold increase in all
penalties exceeded the three-fold increase that would have been sufficient to keep pace with
inflation, as the larger increase was deemed necessary to effectuate the “stated purpose” of the
OSH Act. Id. at 2393. See U.S. ex rel. Chandler v. Cook County , 277 F.3d 969, 978 (7th Cir.
2002) (finding that “[i]t could not be more clear that Congress, in adopting [False Claims Act
penalty enhancement], addressed the situation with careful precision as to what sort of damage
scheme was necessary to achieve the goals of the statute”).

Congress also specifically contemplated the effect of the penalty increase in the context
of willful recordkeeping violations, noting that “the mandatory minimum penalty adopted by
the conferees targets the most extreme violators[,]” which includes employers who “knowingly
and intentionally violate the recordkeeping and reporting requirements . . . .” H.R.Rep. No.
101-881, reprinted in 1990 U.S.C.C.A.N . at 2393-94. The potential for significant penalty
enhancement of willful per-instance recordkeeping violations would have been apparent, as the
Secretary’s per-instance recordkeeping citations in Caterpillar, Kohler, Inc., 16 BNA OSHC
1769 (No. 88-237, 1994); Hern Iron Works, Inc. , 16 BNA OSHC 1206 (No. 89-433, 1993);
Pepperidge Farm ; and Kaspar Wire Works all predated passage of the Omnibus.

See also 136
Cong. Rec. S15776 ( daily ed. Oct. 18, 1990) (statement of Sen. Hatch) (acknowledging that
“OSHA, under its egregious policy, penalized several businesses in the multimillion dollar
range”).

Commissioner Rogers respectfully takes issue with her colleague’s suggestion that the
conferees’ contemplation of a “settlement” exception to the minimum penalty undercuts the
mandatory applicability of the minimum in a litigated case. As the conferees recognized, the
settlement comments concerned “OSHA’s existing [settlement] authority . . . [as] [t]he
conferees d[id] not intend to deprive the agency of [its] flexibility to settle cases . . . .”
H.R.Rep. No. 101-881, reprinted in 1990 U.S.C.C.A.N . at 2394. The Secretary’s exclusive
settlement authority, including mitigation of penalties pursuant to settlement, is derived from
her unique prosecutorial role. Cuyohoga Valley Railway Co. v. United Transportation Union ,
474 U.S. 3, 7 (1985) (“[a] necessary adjunct of [the Secretary’s sole] power is the authority to
withdraw a citation and enter into settlement discussions with the employer”) (citation
omitted); Donovan v. OSHRC (Mobil Oil) , 713 F.2d 918, 927 (2nd Cir. 1983) (only Secretary
has “unfettered discretionary authority to withdraw or settle a citation . . . or to settle, mitigate
or compromise any assessed penalty”). Therefore, any exception, by its terms and by virtue of
the Secretary’s prosecutorial authority, would apply only to the Secretary and only in the
context of settlements. See Brooks Well Servicing Inc. , 20 BNA OSHC 1286, 1288-89 (No.
99-0849, 2003) (noting general rule of statutory construction that “exceptions are to be
narrowly construed”) (citations omitted).

In agreement with her colleague, Commissioner Rogers acknowledges the
Commission’s statutory duty to assess an “appropriate” penalty based on the evidentiary record.
29 U.S.C. § 666(j), § 17(j). In her view, however, a focus on the Secretary’s egregious/willful
policy factors to determine whether per-instance penalties are appropriate for affirmed per-instance violations sidesteps the statutory issue. Such an approach “splits the baby” by dividing
per-instance citation authority into two distinct analytical questions: whether the cited
standard/regulation can be read to support per-instance citations, and whether the record
evidence sufficiently supports the Secretary’s “willful plus” criteria to warrant individual
penalties. Regardless of the permissibility of assessing a single grouped penalty for
individually cited and affirmed violations, the amended Act simply precludes the assessment of
any penalty that does not amount to at least $5,000 for each affirmed willful violation. This is
consistent with the Commission’s corollary limitation precluding assessment of a penalty
exceeding the statutory maximum for a single violation, even were the Commission to find the
maximum permissible penalty inadequate.

Nonetheless, in contrast to her colleague, Commissioner Rogers would find that
assessment of a separate penalty for each of Jindal’s willful recordkeeping violations is
reasonable in the circumstances of this case, and satisfies the four section 17(j) penalty criteria
as well as those the Secretary has articulated in her egregious/willful policy. As with all
recordkeeping violations, the Commission classifies these violations as low gravity. However,
Jindal’s abysmal error rate that averaged approximately seventy percent over three years, in
conjunction with a recordkeeping program specifically designed and implemented to under
record, represents a level of bad faith that clearly justifies the Secretary’s lawful exercise of her
discretion to cite these violations separately and the penalties that statutorily flow from it.

Commissioner Rogers also rejects the notion that the statutorily prescribed minimum
penalties here would be extraordinary. Under the Act’s original penalty scheme, the
Commission assessed an aggregate penalty of $210,500 for the 342 willful recordkeeping
violations in Kaspar , amounting to an average of $615.49 per violation. A seven-fold increase
in that amount would yield a per violation penalty of $4,308.43. In Pepperidge Farm , the
Commission assessed a penalty of $289,603 for the 176 willful recordkeeping violations,
amounting to an average of $1645.47 per violation. A seven-fold increase in that amount
would yield a per violation penalty of $11,518.29. Here, a $5,000 penalty for each of Jindal’s
eighty-two affirmed willful violations would yield a total penalty of $410,000, an amount well
within the range of previously assessed willful penalties. In view of the mandatory minimum,
and the documented Congressional intent to effectuate the “stated purpose” of the Act with a
significant penalty increase, Commissioner Rogers would find that the judge exceeded his
authority by assessing a single penalty that failed to amount to a dollar value equal to, or
greater than, the $5,000 statutory minimum for each affirmed willful violation. Cf. U.S. v. ITT
Continental Baking Co. , 420 U.S. 223, 229 n.6 (1975) (noting that where statute prescribes no
minimum penalty and permits, though does not require, penalties assessed as a series of daily
violations rather than a single violation, trial judge’s penalty assessment reviewed for abuse of
discretion).

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 00-2231

JINDAL UNITED STEEL CORP., and its
successors,

Respondent.

APPEARANCES:

For the Complainant:

Danielle L. Jaberg, Esq., Erica J. McGuirk, Esq., Susan Meyercord Williams,
Esq., Office of the Solicitor, U.S. Department of Labor, Dallas, Texas

For the Respondent:

Thomas H. Wilson, Esq., Merritt B. Chastain, III, Esq., Julie Merten Esq., Vinson
& Elkins, LLP, Houston, Texas

Before:           Administrative Law Judge: James H. Barkley

DECISION AND ORDER

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.
Section 651 et seq. ; hereafter called the “Act”).

Respondent, Jindal United Steel Corp., ( Jindal), at all times relevant to this action
maintained a steel manufacturing plant in Baytown, Texas. Respondent admits it is an
employer engaged in a business affecting commerce and is subject to the requirements of the
Act.

On May 10 through October 19, 2000 the Occupational Safety and Health
Administration (OSHA) conducted an inspection of Jindal’s Baytown plant. As a result of that
inspection, Jindal was issued citations alleging violations of the Act together with proposed
penalties. By filing a timely notice of contest Jindal brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).

On August 3, 2001, the parties entered into a partial settlement agreement disposing of
“serious” citation 1, in its entirety. On September 7, 2001 the parties submitted an additional
agreement, disposing of “willful” citation 2, items 123 through 126. On September 11-13,
2001, a hearing on the matters remaining at issue was held in Beaumont, Texas. At the hearing
the parties filed a joint stipulation in which the Secretary agreed to withdraw willful citation 2,
items 7, 41, 62, and 88. Willful citation 2, items 1 through 6, 8 through 40, 42 through 61, 63
through 87, and 89 through 122, remain at issue. Each of the remaining items alleges a
violation of §1904.2(a), which requires that employers record occupational injuries and
illnesses. Jindal contests the recordability of 24 of the remaining items, as set forth more fully
below. Jindal also disputes the Secretary’s willful classification and penalties of all items. The
parties have submitted briefs on the matters remaining at issue and this case is ready for
disposition.

Background

Jindal purchased the subject plate steel manufacturing facility in Baytown, Texas in
1997 from USX (Tr. 46, 267-67, 526). Jindal is located on the same 59 acre tract which houses
Saw Pipes USA, Inc. (Saw Pipes); both were part of an older USX steel mill facility (Tr. 583).
The old USX plant produced plate steel, which was then rolled into pipes. When sold, the plant
was divided into two operations, Jindal operating the plate mill, and Saw operating the pipe
manufacturing division. The two companies share some common ownership; Saw Pipes holds
stock in Jindal (Tr. 141, 595). Saw Pipes commenced its operations prior to Jindal’s start up
(Tr. 123, 265, 562-64).

Craig Wetherington testified that he interviewed for a safety and health position with
Jindal on May 4, 1998 (Tr. 51). Wetherington stated that Ms. Lisa White, Jindal’s human
resources manager, and Gary Jones, the human resources manager for Jindal’s sister company ,
Saw Pipes, conducted his first interview (Tr. 48, 96). He was then interviewed by Doug Gates,
Jindal’s plant manager, along with Ms. White (Tr. 48-49). Wetherington stated that his
position had no formal job description; he was told that, if hired, his job would entail helping
the company come into operational status, and dealing with basic daily safety operations (Tr.
50). Wetherington was further told that he would have “double line, or dotted line
responsibility” to both Mr. Jones and Doug Gates (Tr. 49, 66-67, 76, 98-99, 113). According
to Wetherington, Jones was the administrator of the safety program for both Jindal and Saw
pipes, and was the “contract holder, or signature party” for both Jindal and Saw pipes’ Workers
Compensation policies (Tr. 66, 126). Wetherington would be required to seek permission from
Mr. Jones before submitting a claim to Workers’ Compensation (Tr. 65). Wetherington was
hired later the same afternoon, and reported to work on May 5, 1998 (Tr. 51). Upon reporting
for work, Wetherington inspected the physical plant, and reviewed Jindal’s safety program and
manual, as well as the OSHA 200 logs (Tr. 51-52).

Wetherington testified that he responded to employee injuries and accidents as part of
his job (Tr. 52). After he received a report of an accident he would respond to the site to
determine whether additional help was needed to respond. The injured employee would then
be taken to the first aid, or nurse’s, station. If needed the employee could be transferred to the
healthcare provider with which Jindal had a contract, or to the local emergency room (Tr. 52-54). When an accident occurred at the plant, the injured employee’s supervisor created an
accident report, including the name of the affected employee, the date and location of injury,
and a cursory description of the incident, and injury (Tr. 56). The accident report was to be
turned over to Wetherington, the duty nurse, or to Doug Gates in the daily turn report, no later
than first duty day following the accident (Tr. 56; Exh. C-295 through C-331). The nurse on
duty also created a chronological list of all visits to the clinic and the care provided (Tr. 58-59;
Exh. C-225, C-226).

Wetherington testified that he followed up on injuries. He examined the first aid log
from the on-site first aid station weekly, and checked with the affected employee or with the
nurse, who received the injured employee’s “return envelope” from the healthcare provider (Tr.
58-60, 77). The return envelope would list prescriptions and/or physical therapy prescribed,
and any physical restrictions on the employee’s activity (Tr. 58). Wetherington also signed off
on medical bills submitted by the healthcare provider for treatment provided to Jindal
employees (Tr. 59-64; Exh. C-168 through C-194). In addition, Wetherington stated, he was
responsible for submitting Workers’ Compensation forms for eligible employees (Tr. 65).

Craig Wetherington testified that during his tenure at Lowry Air Force Base, between
1983 and 1992, he attended a four day seminar covering the OSHA 200 log, and the
requirements for OSHA illness and injury record keeping (Tr. 42-44). Later, while working as
a safety and health director at Grant/PrideCo, Wetherington attended a second, week-long
course, sponsored by OSHA (Tr. 43). Wetherington was responsible for maintaining the
OSHA 200 logs for Grant/PrideCo. for five years, until 1997 (Tr. 44-45). Wetherington
testified that he understood OSHA record keeping requirements, and the meaning of the terms
“medical treatment,” “restrictive work activity,” and “lost workdays” as defined by OSHA (Tr.
42-43).

Wetherington testified that he did not fill out the OSHA 200 logs at Jindal in accordance
with OSHA recording criteria. Rather, Wetherington stated, he waited to record any injuries
until it was determined whether an employee’s injury was sufficiently serious to be reported to
Workers’ Compensation. If the cost of an employee’s medical treatment and lost work time
was paid out of pocket by Jindal, the Texas Workers’ Compensation first report of injury
(TWCC 1) was not forwarded to the state. In that case, Wetherington was not to list the injury
on the OSHA 200 logs (Tr. 68, 77-80). If, however, the employee faced an extended period of
convalescence or surgery, his or her injury would be reported to Workers’ Compensation and
listed on the OSHA 200 log (Tr. 65, 68). Consequently injuries meeting OSHA recording
requirements were deliberately omitted from the logs. Wetherington testified that he filled out
both the Workers Compensation forms and the OSHA 200 forms in accordance with
instructions provided him by Gary Jones (Tr. 68).

Within several weeks of his hire date, Wetherington testified, he had a conversation with
Jones about the way the Worker’s Compensation claims were handled, and the resulting
discrepancies in the OSHA logs. Wetherington stated that he told Jones he did not believe the
200 log was being filled out correctly. Jones told Wetherington that he interpreted OSHA
regulations differently and that if Wetherington didn’t want to record injuries according to his
interpretation, Wetherington could find another job (Tr. 69, 555). Wetherington stated that, on
several occasions, he spoke to Jones about the recording practices for the OSHA 200 log, but
quit asking when he repeatedly got the same answer to his questions (Tr. 73).

Although Jones never directly stated that it was his intent to skew Jindal’s accident data,
Wetherington believed that Jones was knowledgeable about OSHA reporting requirements, and
could not, in good faith, have interpreted those requirements to exclude all injuries not reported
to Workers’ Compensation.

Wetherington believed that Jones’ intent was to misrepresent the
number of accident’s at the plant, in order to obtain favorable insurance premiums for the
company (Tr. 109, 115-116). Wetherington also believed that the purpose of the under-reporting was to evade inspections by OSHA by reporting a low Lost Worker Day Index
[LWDI] (Tr. 109-110).

Wetherington testified that he reported his conversation with Jones to Lisa White and
Doug Gates, specifically stating that he would not be following OSHA requirements when
filling out the 200 log when following Jones’ instructions (Tr. 70-71, 130). He also went to Joe
Hayes, a vice president at Jindal, about his concerns on a specific case (Tr. 75, 117).
According to Wetherington, Hayes was not interested, and referred him back to Jones (Tr. 75-76). White and Gates told him that Jones had the final word on both Workers’ Compensation
issues and on the OSHA reporting requirements (Tr. 70, 104). While Gates wanted
Wetherington to comply fully with OSHA requirements, he recognized Jones’ authority over
safety issues. He recommended that Wetherington obey his supervisor, and “cover” himself by
documenting any objections he had to the way the safety program was run (Tr. 71, 119, 130;
see also testimony of Lisa White, Tr. 160-61, Exh. 292).

On June 24, 1998, Wetherington wrote a memo for the his personnel file (Tr. 71, 73,
130-31; Exh. C-293), stating that he had asked Gary Jones about the company policy not to
report injuries for which a first report of injury or illness had been completed (TWCC 1's) ,
either to the state (Texas Worker’s Compensation Commission), or to OSHA. The memo goes
on to state that Jones told Wetherington “not to worry about it.” Wetherington writes that after
reaffirming Gary Jones’ final authority over safety matters, he decided to record all first aid on
the company logs, but to list on the OSHA 200 log only cases for which Workers’
Compensation claims are made (Exh. C-293). Wetherington also wrote a letter to Lisa White
restating his position and noting that if Gates truly wants full compliance then “we are going to
have to go over Gary’s head and report all injuries since the first of the year.” Wetherington
goes on to note “I do not really think any of us can stand that much heat” (Tr. 71, 73; Exh. C-292).

Wetherington testified that, in addition to under-reporting injuries for which claims had
not been filed, he also under-reported injuries involving temporary workers. Wetherington
testified that Gary Jones specifically told him that injuries suffered by temporary laborers
would be reported by the agency through which the laborer was employed, and that
Wetherington was not to report those injuries (Tr. 74). Wetherington testified that he told
Jones this did not conform to OSHA reporting guidelines; Jones told him he interpreted the
guidelines differently (Tr. 74, 93). As a result, Wetherington did not report any injuries to
temporary laborers; he did not do any followup on temporary employees who had been injured
(Tr. 81).

Wetherington identified the OSHA Injury and Illness Data Collection Form for 1998,
which he completed and signed (Tr. 82; Exh. C-332, see also , Exh. C-402). Eight lost work
time injuries were listed for the 1998 calendar year, which, according to Mr. Wetherington,
corresponded to the number he reported on the OSHA 200 form for that year (Tr. 82-83). The
1998 logs entered into evidence actually show 7 lost work time injuries, and three injuries
without lost work time (Exh. R-1, C-400).

Lisa White testified that in April 1998 she interviewed with Gary Jones and Dillip
Bhargava for a position as Jindal’s human resource manager (Tr. 147-49, 205). She believed
Bhargava to be the president of Saw pipes and CEO of Jindal . Gary Jones offered her the
position, and she accepted on April 21, 1998 (Tr. 147-49; Exh. C-334). White testified that
when she was hired, Dillip Bhargava told her that, while she would be working directly under
Joe Hayes, a Jindal vice president, she would be reporting through Gary Jones on any matters
relating to safety (Tr. 141,144-46, 186, 209). Ms. White further testified that she did, in fact,
report to Jones on compensation claims and EEOC litigation matters throughout her
employment (Tr. 150-51, 162, 181, 188). Ms. White testified that Craig Wetherington was
hired three for four weeks into her employment with Jindal; prior to that, there was no safety
manager on site (Tr. 151). White testified that during Wetherington’s interview, Gary Jones
told Wetherington that he, like her, would have dual reporting responsibility to Jones (Tr. 154).

White recalled Wetherington’s concern about Jindal not turning over minor injuries, or
injuries without lost work time to their insurance carrier, or reporting those claims on the
OSHA 200 forms (Tr. 156-57). She stated that he was also concerned that he had been directed
not to report injuries involving temporary laborers on the OSHA 200s (Tr. 157). White
confirmed that she was present during Wetherington’s meeting with Doug Gates, and
corroborated Wetherington’s version of events (Tr. 160-61, 195-97). White stated that she was
familiar with the recording criteria for the OSHA 200 logs (Tr. 137-40), and realized that the
injuries Wetherington was concerned about should have been recorded (Tr. 157-58). However,
when Wetherington left Jindal, and White took over responsibility for the 200 logs prior to
engaging a new safety manager, White followed the practices Wetherington described to her.
White intentionally failed to record at least one injury [cited at item 93] she knew to be
recordable, because the employee involved was a temporary worker (Tr. 168-71).

Doug Gates, Jindal’s plant manager, testified that Gary Jones introduced him to Craig
Wetherington in the course of Wetherington’s job interview (Tr. 248-49). According to Gates,
Jones told him that Wetherington would be working in the plate mill, but be reporting to Jones
(Tr. 250-51, 255). Gates testified that Jindal was “fumbling around trying to start our safety
program.” (Tr. 252). The only direction Gates gave Wetherington was to “establish a safety
program and to be in the field and make observations of the people, the equipment, things like
that. . ..” (Tr. 252). Gates confirmed that Wetherington and White came to him with concerns
about the way the OSHA logs were being kept. Gates understood that both Wetherington and
White felt that they were being asked to keep the logs in a way that did not conform to their
training. However, Gates stated, he was unfamiliar with safety and health issues and felt that
Wetherington and White should be discussing their problem with Jones, who was their
supervisor (Tr. 253-54, 262). Gates testified that he recommended Wetherington make Jones
aware of his objections, and let Jones know that he would bear the ultimate responsibility for
any problems (Tr. 255).

Gary Jones testified that in July of 1997 he was hired by Saw Pipes to bargain with the
United Steelworkers Union (Tr. 556). Jones testified that Jindal began start up operations in
late 1997 or early 1998, but denied that he had any role in that process (Tr. 562). Jones then
went on to repeatedly contradict this statement. He testified that his supervisor, Mr. Bhargava,
appointed him to act as liaison between Saw Pipes and Jindal’s security department, which had
a crew putting the Jindal facility in order (Tr. 564). Because he was the only human resources
person at the facility, he interviewed, negotiated employment terms and hired Lisa White (Tr.
566-67). Jones claimed to have no role in safety and health decisions at either Saw Pipes or
Jindal (Tr. 564). However, Jones hired Saw Pipes safety managers, Ronnie Johnson and, later,
Robert Murphy (Tr. 557, 560). He interviewed Craig Wetherington, and when Wetherington
left Jindal, Lisa White came to Jones to ask if Murphy could fill in as safety manager (Tr. 566-67). He established a clinic for the benefit of both Jindal and Saw Pipes employees, and
arranged for its staffing (Tr. 565). Jones understood that Jindal and Saw Pipes had the same
insurance carrier, but stated that he had no role whatsoever in the administration of either Saw
Pipes’ or Jindal’s Workers Compensation program (Tr. 558, 563).

Jones testified that he was not Lisa White or Craig Wetherington’s supervisor, and had
no authority to fire or discipline either of them (Tr. 579-82). Jones stated he never had any
conversations with any of Jindal’s management concerning OSHA reporting requirements, or
OSHA 200 forms (Tr. 582-83). He maintained he never told Wetherington that he did not have
to report on the OSHA 200 log any injury that was not also reported to Workers’ Compensation
(Tr. 575). He denied telling Wetherington to under report injuries on the OSHA 200 (Tr. 576).

Jones did recall a conversation with Wetherington regarding injuries to temporary
laborers. Jones testified that he gave Wetherington his reasoning for not reporting those
injuries, stating that Jindal/Saw didn’t supervise those laborers, that the laborers viewed the
staffing agency, Labor Ready, as their employer, and that the staffing agency told him that they
were maintaining an OSHA 200 log on their employees (Tr. 577). Jones, who is also an
attorney, testified that he consulted the Blue Book

before discussing the issue with
Wetherington (Tr. 590-94). Jones maintained he did not know how Wetherington chose to
handle those injuries (Tr. 577).

Jones recalled speaking to Lisa White about Saw Pipes’ practice of paying claims out of
pocket to avoid Worker’s Compensation claims (Tr. 577-78). According to Jones, employers
in Texas can opt out of Worker’s Compensation program, and that there was nothing illicit
about paying small claims in-house rather than turning them over to the insurance carrier (Tr.
559). Jones stated that the in house payment of medical, or lost time claims had no relation to
whether the underlying injury was reported to OSHA (Tr. 559).

David McIntosh was hired as Jindal’s safety manager on November 8, 1999, about a
week after first interviewing for the job (Tr. 305). McIntosh testified that he reported to Lisa
White, who reported to both Doug Gates and Gary Jones (Tr. 306). McIntosh testified that he
discerned his job duties partially from conversations with Lisa White, but mainly from review
of Wetherington’s files. From those files McIntosh determined that he was responsible for
accident prevention (Tr. 313). McIntosh stated that included accident response, and analysis of
the on site first aid logs (Tr. 313-16). McIntosh stated that he was never specifically assigned
the task of maintaining the OSHA 200 logs or for submitting claims to Workers’ Compensation
(Tr. 316-17). However, McIntosh testified, he asked Doug Gates for permission to take on
Workers’ Compensation, as he had prior experience in the area (Tr. 317). McIntosh testified
that he was directed to ask Gary Jones if he needed any instruction on which claims were to be
submitted; however, he never had any occasion to do so (Tr. 318-19).

At the hearing, McIntosh testified that responsibility for keeping the OSHA 200 log had
never been specifically assigned to him (Tr. 325-26, 339, 341-42, 373-75). McIntosh assumed
responsibility for the OSHA 200 logs on his own initiative at the end of 1999 when he became
concerned about the approaching deadline for posting the log (Tr. 317). McIntosh knew
Wetherington kept the logs when he was the Jindal’s safety manager, however, and he knew
that no one else was keeping them. (Tr. 332, 334, 338-39). McIntosh completed the 1999
OSHA 200 logs based on information he located from Wetherington’s files (Tr. 324-25). In his
December 23, 1999 Turn Report, he notes correcting and updating the OSHA 200 log for 1998.
He also states: “Did the same thing for 1999, except I still need to update October through
December (Exh. C-374). McIntosh’s Turn Reports do not mention the OSHA 200 forms again
until February, when he discussed purchasing “EZ Track” software to “stay on top of our
injuries and illnesses (Exh. C-385), and setting up a data base to record injuries for 2000 (Exh.
C-386). McIntosh testified that he posted the 1999 log in February of 2000 (Tr. 324-25). The
log, which has eleven entries, was never updated to include any entries from October and
November. Only one entry appears for December, from the 24 th , the day after McIntosh noted
working on the log (Exh. R-2, C-400).

McIntosh testified that, in his opinion, Jindal was under-reporting injuries; he knew
there were recordable injuries that should have been, but were not entered on the OSHA 200
form because they were not reported to Worker’s Compensation (Tr. 322-24). No Jindal
executive ever told him that Jindal’s had a policy to under-report injuries to OSHA; however,
Lisa White told him that Jindal’s policy on completing the OSHA report was to log only those
claims turned into Workers’ Compensation (Tr. 320-22, 364-65, 386). White also told
McIntosh that, in accordance with Gary Jones’ instructions, injuries sustained by temporary
laborers were not to be recorded (Tr. 334). McIntosh testified that he told White that he
disagreed with the “unwritten” recording policies (Tr. 339-40). Nonetheless, McIntosh
admitted that injuries continued to be under-reported during his tenure as safety manager.

McIntosh denied any personal responsibility for the continued under-reporting, insisting
that he had not specifically been assigned the job of maintaining the logs. He completed the
2000 OSHA logs, “just to keep us covered in case something like this did happen” (Tr. 328,
332). McIntosh stated that he did attempt to enter all injuries for which Workers’
Compensation claims had been filed into the OSHA log. He couldn’t be sure he recorded them
all, however, because he didn’t have access to the insurance information (Tr. 385-89).
McIntosh admitted that he was aware of some recordable injuries that he failed to report (Tr.
342, 350, 352, 354, 355). He testified that he did not record such injuries because he “did not
have time,” “did not get enough information,” was kept “busy doing other things,” and was
never specifically told it was his responsibility (Tr. 343-64). In particular, McIntosh stated,
Sandeep Mishra, Jindal’s president, assigned him another project, programming each
employee’s hand print into the hand scanners for time keeping purposes (Tr. 366, 379). He
was also assigned ancillary duties “such as getting the truck scale fixed, getting the fence fixed,
finding contractors to fix the bathrooms out in the mill” (Tr. 379). McIntosh insisted that he
never made a conscious decision not to record an injury, and maintained that he ignored
Jindal’s unwritten policies (Tr. 373-74). The 2000 log reflects 13 work related injuries
through May of that year (Exh. R-3, C-400).

The cited violations of §1904.2(a) allege that during the relevant periods of 1998, 1999
and the first half of 2000, Jindal failed to record 75%, 86% and 55%, respectively, of all
recordable injuries (Tr. 513; Exh. C-406). Jindal admits that 94 of the 118 cited injuries should
have been recorded. Of the 24 citations contested by Jindal, eight are vacated, as discussed
more fully below; the remaining 16 are affirmed. Taking the vacated items into account, I find
that Jindal failed to record 74%, 84% and 53%, of all recordable injuries, for the 1998, 1999,
and the first half of 2000. The classification of the violations as willful, and the
appropriateness of the penalty are discussed below.

Violations of §1904.2(a)

As noted above, citation 2, as amended, alleges 117 violations of §1904.2. Each item
reads:

29 CFR 1904.2(a): The log and summary of occupational injuries and illnesses (OSHA Form
No. 200 or its equivalent) was not completed in the detail provided in the form and the
instructions contained therein:

Section 1904.2(a) provides:

Each employer shall, except as provided in paragraph (b) of this section, (1)
maintain in each establishment a log and summary of all recordable occupational
injuries and illnesses for that establishment; and (2) enter each recordable injury
and illness on the log and summary as early as practicable, but no later than 6
working days after receiving information that a recordable injury or illness has
occurred.

Section 1904.12 states:

(c) Recordable occupational injuries or illnesses are any occupational injuries
or illnesses which result in:

(1) Fatalities. . . (2) Lost work day cases, other than fatalities, that result in lost
workdays; or (3) Nonfatal cases without lost workdays which result in transfer to
another job or termination of employment, or require medical treatment (other
than first aid) or involve: loss of consciousness or restriction of work or motion.
This category also includes any diagnosed occupational illnesses which are
reported to the employer but are not classified as fatalities or lost workday cases.

(d) Medical treatment includes treatment administered by a physician or by registered
professional personnel under the standing orders of a physician. Medical treatment does
not include first aid treatment even though provided by a physician or registered
professional personnel.

(e) First Aid is any one-time treatment, and any followup visit for the purpose of
observation, of minor scratches, cuts, burns, splinters, and so forth, which do not
ordinarily require medical care. . ..

Citation 2, items 1 through 6 and 8 through 15. Jindal does not contest the
underlying violations set forth in items 1 through 15. Those items allege violations resulting
from injuries occurring on February 23, March 10, April 26, May 7, June 3, June 9, June 24,
August 17, 1998 August 27, August 28, October 15, October 23, November 15, December 4,
and December 8, 1998. Jindal admits not only that the injuries occurring on those dates were
recordable, but that Jindal management knew or should have known that (1) the injuries were
recordable, and (2) the injuries were not, in fact, recorded.

Citation 2, item 16. Joe Potter, a shift maintenance foreman at Jindal United Steel,
testified that he strained a muscle in his lower back while attempting to lift an oil drum (Tr.
438). Potter testified that he was given medications which he was to take for two weeks (Tr.
438). Records from the San Augustine Industrial Clinic support Potter’s testimony; the clinical
notes indicate that on January 13, 1999, a Dr. Arora suggested the use of a lumbar corset,
ordered a course of therapy and prescribed daily doses of 75 mg of Arthrotec (Exh. C-18).
Potter was released for work “with the following instructions:. . . NO EXCESSIVE . .
.LIFTING OVER 25 POUNDS. . . SQUATTING. . . CLIMBING.”

Recordability . Jindal maintains that the Secretary failed to prove that Joseph Potter
received medical treatment for his injury, in that she failed to prove how many doses of
Arthrotec Potter was prescribed, or that Arthrotec is a prescription medication. Jindal further
maintains that any restrictions in activity resulting from the injury did not prevent him from
performing his normal job duties.

Under Fed. R. Civ. Pro. 201(b)(2), this judge may take notice of facts “capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
question. This judge notes that The Physicians Desk Reference lists Arthrotec as a prescription
drug used mainly for treating osteoarthritis. Potter testified that he was to take the medication
for two weeks.

OSHA’s Record keeping Guidelines for Occupational Injuries and Illnesses (hereafter
referred to as the Blue Book), contains OSHA’s official interpretation of the record keeping
requirements (Exh. C-403). The Blue Book states, in pertinent part, that medical treatment
includes the use of prescription medications (Except a single dose administered on a first visit
for minor injury or discomfort) (Exh. C-403, p. 43). Joseph Potter’s injury was recordable
under the plain meaning of the standard.

Knowledge . Craig Wetherington was provided with a log sheet containing two entries
concerning Potter’s injury, and a notation that Potter went to San Augustine Clinic (Exh. C-225, p. 12). An injury incident report was prepared, noting that Potter injured his back (Exh.
C-307).

Initially, this judge notes that this, and, in fact, all of the cited violations were
discovered during a review of records obtained, considerably after the fact, in the course of the
OSHA investigation. The records reviewed were in Jindal’s control or in the control of its
agents. Such documents were available for the review of Jindal’s safety management at any
time. Thus I find that even if Jindal’s safety managers lacked specific knowledge of any of the
contested injuries, they could, with the exercise of reasonable diligence, have known of the
medical treatment provided to the employees named in the citations.

The Secretary has established the cited violation.

Citation 2, item 17. On January 14, 1999 Joe Edwards, a crane electrician, fell
approximately six feet from a platform at Jindal’s plant (Tr. 442-43). Edwards testified that he
went to the clinic, but wouldn’t say that he actually hurt his back (Tr. 441). The Accident
Report from the San Augustine Industrial Clinic states that Edwards was restricted to ground
work only, no climbing, for one week; however, Edwards testified that there was nothing that
he did prior to the accident that he could not do after he fell (Tr. 444; Exh. C-19). Edwards
stated that after he returned from the clinic, he went back to work.

Jindal maintains that the injury sustained by Joe Edwards did not result in any
restrictions in activity that prevented him from performing his normal job duties. This judge
agrees.

Section 1904.12(c)’s relationship to subparagraph (f), is explained in the Blue Book,
which discusses restriction of work or motion resulting in lost workdays, stating that:

Lost workday cases involving days of restricted work activity are those cases where,
because of injury or illness. . . the employee worked at his or her permanently assigned
job but could not perform all the duties normally connected with it.

Restricted work activity occurs when the employee, as a result of a job-related
injury or illness, is physically or mentally unable to perform all or any part of his
or her normal assignment during all or any part of the workday or shift. The
emphasis is on the employee’s inability to perform normal job duties over a
normal work shift .

(Exh. 403, p. 48). Edwards testified that he was not injured when he fell on January 14, 1999,
and that after visiting the clinic, he returned to his normal work activities. This judge cannot
find that Edward’s accident was recordable as that term is defined by OSHA’s own guidelines.

Item 17 is vacated.

Citation 2, items 18 through 20. These items are uncontested. Jindal admits that it
failed to list on its log and summary of occupational injuries and illnesses (OSHA Form No.
200 ) recordable injuries suffered by its employees on January 22, January 26, and February 2,
1999 .

Citation 2, item 21. On February 3, 1999 Ronnie Lindsey was moving debris with a
front end loader, when the wind blew trash into his face. The day following this incident,
Lindsey reported to the plant dispensary (Tr. 474-77; Exh. C-212). Lindsey was referred to the
OccuCare Industrial Medicine Clinic. His eye was flushed, and a doctor provided Lindsey with
a medicated eye patch, which he was to wear for 24 hours (Tr. 475-76; Exh. C-22). Lindsey
was released to return to restricted duty on February 4, 1999, with instructions that he was to be
released from the restriction, i.e. monocular vision, on February 5, 1999, if he experienced no
further problems (Exh. C-22). Lindsey testified that he was in charge of the mobile equipment
operators, and that his duties included moving heavy equipment (Tr. 476). Lindsey stated that
he could not move the equipment with monocular vision (Tr. 477).

Jindal maintains that the injury sustained by Ronnie Lindsey did not result in any
restrictions in activity that prevented him from performing his normal job duties.

The evidence establishes that Lindsey was unable to perform part of his normal
assignments during his February 4, 1999 shift, the day following the onset of his injury. (Exh.
C-403 pp. 48, 51, #4). According to the guidelines set forth in the Blue Book, Lindsey’s
injury was recordable. Jindal had constructive knowledge of the violation, as discussed at item

16. The Secretary has established the cited violation.

Citation 2, items 22 through 24. These items are not contested. Jindal admits that it
knew, or should have known that on February 10, February 19, and March 6, employees
suffered recordable injuries that were not recorded on Jindal’s OSHA 200 log.

Citation 2, item 25. On March 12, 1999, Ronnie Lindsey was working with a front end
loader when a hydraulic line broke, spraying Lindsey with hot hydraulic fluid (Tr. 477).
Lindsey testified that, after a few hours, he developed a rash similar to a severe sunburn on his
face, shoulders and chest, which worsened over time (Tr. 476). The nurse at Jindal’s onsite
dispensary washed the rash down with antibacterial soap, and gave Lindsey some lotion (Tr.
479). Lindsey returned to the dispensary for observation over the next several days before the
rash subsided (Tr. 480).

Jindal maintains that the illness suffered by Ronnie Lindsey did not constitute an
occupational illness, and was, therefore, not recordable. The Blue Book states that:

Under the OSH Act all work-related illnesses must be recorded, while only those
injuries which require medical treatment (other than first aid), or involve loss of
consciousness, restriction of work or motion, or transfer to another job are
recordable. The distinction between injuries and illnesses, therefore, has
significant record-keeping implications.

The instructions for distinguishing between injuries and illnesses are form, included in
the Blue Book (Exh. C-403, at p. 37)

[w]hether a case involves an injury or illness is determined by the nature of the
original event or exposure which caused the case, not by the resulting condition
of the affected employee. Injuries are caused by instantaneous events in the
work environment. Cases resulting from anything other than instantaneous
events are considered illnesses.. . .A single incident involving an instantaneous
exposure to chemicals is classified as in injury.

Had Lindsey’s rash resulted from a chemical exposure over time, it would certainly have been
classified as a recordable occupational illness.

Because Lindsey’s injury arose out of a single
incident, however, it must be classified as an injury. Injuries are only recordable when the
criteria set forth in §1904.12(c) are met, i.e. , when the injury requires medical treatment other
than first aid, or involves a loss of consciousness, or restriction of work or motion. Because the
Secretary has not alleged, or shown, that Lindsey’s March 12, 1999 injury involved any of the
criteria set forth in §1904.12(c), this item must be vacated.

Citation 2, item 26. On the morning of April 7, 1999 William Williams reported to
Jindal’s on site dispensary complaining that he had suffered a contusion to his left knee when
he fell down some stairs while carrying a ladder. The nurse had Williams elevate his leg and
apply an ice pack for 15 minutes (Exh. C-215; C-225, JUSS 2720). Later in the day Williams
returned to the dispensary, complaining of lower back pain; the on site nurse applied a heat
pack (Exh. C-215, C-225). On April 8 Williams asked to be referred to a doctor, and was sent
to OccuCare Industrial Medicine Clinic, where he was examined. Williams was diagnosed
with thoracic strain; his X-rays were negative; no treatment was prescribed. Williams was
released for work, with instructions not to perform any excessive lifting (Exh. C-27).

The Secretary maintains that the two injuries were recordable, because they arose out of
the same incident, and involved the “[a]pplication of hot or cold compress(es) during second or
subsequent visit to medical personnel.” Jindal maintains that William Williams was treated
with “first aid,” and that any restrictions on activity resulting from his injury did not prevent
him from performing his normal job duties. Jindal argues that the injury, therefore, was not
recordable. This judge agrees.

William Williams suffered two injuries on April 7, 1999. A contusion to his left knee
was treated with a single cold compress. During a subsequent visit, Williams complained of a
separate injury to his back, which was treated with a single hot compress. Williams was
referred to the OccuCare clinic for tests, but received no treatment. Because Williams’ bruised
knee and strained back muscle are separate injuries, and because Williams received only one
treatment for each injury, this judge cannot find the injuries were recordable. Citation 2, item
26 is vacated.

Citation 2, items 27 through 30 . are not contested. Those items list two recordable
injuries suffered by Jindal employees on April 21, and one injury on both April 23, April 27,
1999. None of those injuries were recorded on Jindal’s OSHA 200 log.

Citation 2, item 31. On April 27, 1999, Alice Carter, formerly Alice Godfrey, was
bitten by a brown recluse spider

while walking through the “slab yard” at Jindal’s facility (Tr.
484). Ms. Carter testified that she notified her foremen, and went to the on site clinic before
being referred to a doctor at the OccuCare clinic (Tr. 482; Exh. C-33). Carter was provided
with a prescription salve (Ceftin) and antibiotics, which she was to use until gone (Tr. 482;
Exh. C-33). Ms. Carter testified that she “was using” the salve, but had an allergic reaction to
it (Tr. 482). She returned to the clinic on May 3, 1999 (Tr. 483; Exh. C-33). The doctor
prescribed a different medicine, which proved effective (Tr. 482-483). In his May 3, 1999
notes, Dr. Arora states that Carter missed work Saturday and Sunday due to the allergic
reaction (Exh. C-33). However, Carter testified at the hearing that she did not miss any work
either because of the spider bite, or her allergic reaction to Ceftin (Tr. 483).

Jindal maintains that Carter, was treated with “first aid”only, and that the injury,
therefore, was not recordable. Jindal further maintains that Carter’s injury did not result in any
lost work days.

This judge finds no reason to discount Alice Carter’s testimony that she did not lose any
work days due to her injury. Dr. Arora’s notes are not necessarily contradictory, as Saturday
and Sunday are not regular work days. Nor does this judge have any reason to question Ms.
Carter’s testimony that she “was using” the Ceftin salve, testimony from which this judge
infers Carter was prescribed multiple doses. A work related injury requiring multiple doses of
a prescription medication is recordable; see , the Blue Book, Exh. 403, p. 43. Jindal had
constructive knowledge of the violation, as discussed at item 16. The Secretary has made out
the cited violation.

Citation 2, item 32. An April 29, 1999 accident report from OccuCare indicates that,
on that date, William Arthur had a dressing applied to a contusion/abrasion (Exh. C-34).
Arthur was released for return to work with instructions to avoid “excessive” weight bearing on
his right foot (Exh. C-34). Arthur testified that his normal job activities, repairing row lines,
require him to bear excessive weight on both feet (Tr. 485-86). However, Arthur could not
recall this injury at all (Tr. 485).

Jindal maintains that the injury sustained by William Arthur did not prevent him from
performing his normal job duties. Jindal maintains that the injury, therefore, was not
recordable.

The work restriction notation in Arthur’s accident report in insufficient to show that
Arthur was actually unable to perform his normal job duties over a normal work shift as a
result of the cited injury . The Secretary failed to carry her burden in this instance, and this item
must be vacated.

Citation 2, item 33. Jindal does not contest citation 2, item 33, which alleges that a
recordable injury that occurred to J-99-20 on May 13, 1999 was not recorded on the OSHA 200
log. That item will be affirmed.

Citation 2, item 34 . Nurses notes dated May 18, 1999 and an accident report from
OccuCare dated May 19,1999 indicate that on May 14, of that year, Roger Blunt was cutting
steel with a torch when hot slag fell on his boot. The slag burned through his boot, Blunt was
diagnosed with first and second degree burns on the instep of his left foot (Exh. C-36, C-222).
Jindal’s nurse cleaned and dressed the burn with 1% Silvadene creme on May 18, and 19,1999
(Exh. C-222). The Physician’s Desk Reference states that Silvadene 1% is a prescription anti-microbial ointment, silver sulfadiazine.

Because Blunt was treated with a prescription medication on his initial and on a
subsequent visit to Jindal’s clinic, the injury should have been recorded in accordance with the
instructions provided in the Blue Book.

Jindal had constructive knowledge of the violation, as discussed at item 16. Citation 2,
item 34 will be affirmed.

Citation 2, items 35 through 38. Jindal does not contest these items which alleges
violations regarding recordable injury that occurred May 18, June 27, July 13, July 15, 1999
was not recorded on the OSHA 200 log. Those items will be affirmed.

Citation 2, item 39. On July 23, 1999, Maria Garcia reported to Jindal’s dispensary
complaining of pain in her right foot (Exh. C-227). The on-site nurse directed Garcia to wrap
and elevate the foot over the weekend, and take 800 mg. of Advil every six hours. Garcia was
to return on July 26, 1999 if she had seen no improvement (Exh. C-227). On July 26 Garcia
returned, complaining of pain and swelling in the arch of the foot. Craig Wetherington was
notified and Garcia was referred to OccuCare (Exh. C-227). The OccuCare accident report
states that Garcia fell off a steel plate, spraining her ankle (Exh. C-41). Doctor’s notes
accompanying the report indicate that Garcia was given 12 samples of Relafen 500, advised to
take the medication as directed, to use ankle support, apply heat, and take Tylenol for pain
(Exh. C-41). Relafen (Nabumetone), is a prescription non-steroidal anti-inflammatory
(NSAID).

Because Garcia was provided with multiple doses of Relafen, a prescription drug,
during her third visit to a health care provider concerning the same injury, that injury should
have been recorded in accordance with the instructions provided in the Blue Book. Jindal had
constructive knowledge of the violation, as discussed at item 16. Citation 2, item 39 will be
affirmed.

Citation 2, item 40. Jindal admits the recordability of the injury cited at citation 2, item

40. The injury cited occurred on August 17, 1999, and that item will be affirmed.

Citation 2, item 42. On August 17, 1999, Rich Moody was bitten by an “asp,” a
caterpillar-like insect; Moody developed an allergic reaction to the bite (Tr. 451-52). Moody
reported to the OccuCare Clinic and received two injections, 50 mg. Benadryl and 60 mg.
Kenalog.

Jindal maintains that the injured employee in this case, Rich Moody, was treated with
“first aid,” and that his injury, therefore, was not recordable. This judge disagrees. Moody
received two, i.e. multiple, doses of prescription medication. In its brief Jindal states that
Benadryl is “arguably and over-the-counter medication.” However, in this case, Moody
received not an oral over-the-counter form of Benadryl, but injectable Benadryl, which is
indicated for the immediate amelioration of allergic reactions or anaphylaxis as an adjunct to
epinephrine. The injection was administered by a health care professional, in conjunction with
a second prescription drug, Kenalog. The injury was recordable. Jindal had constructive
knowledge of the violation, as discussed at item 16, and item 42 is affirmed.

Citation 2, item 43. On the morning of August 19, 1999, James Sherman was stepping
off the “roll grinder” when his right calf muscle began to cramp (Tr. 429). Sherman reported to
the dispensary, where the nurse on duty iced down his leg for 20 minutes before referring him
to OccuCare (Exh. C-229). At OccuCare, Dr. McShane tentatively diagnosed Sherman with a
vessel rupture or muscle tear based on the results of a venous doppler test (Exh. C-434).
Sherman believed he received an anti-inflammatory, and medication for pain (Tr. 429).
McShane’s notes confirm that Sherman received samples of Celebrex and was given Tylenol
for pain. Sherman was advised to ice the leg, rest and to return to work the following morning.

Jindal maintains that the Secretary failed to prove that James Sherman suffered a work
related injury, or that he received treatment in excess of first aid.

Injuries arising on the employer’s premises are presumed to be work related, unless the
employer shows that the injury is actually a symptom or result of an earlier non-work related
event (Exh. C-403, pp. 32-34). Because Jindal introduced no evidence tending to rebut the
presumption, Mr. Sherman’s injury is deemed work-related. Sherman received medical
treatment, in that he was provided samples (plural) of Celebrex (celecoxib), a prescription non-steroidal anti-inflammatory drug. Sherman’s injury was recordable; Jindal had constructive
knowledge of the violation, as discussed at item 16, and its failure to record the injury was a
violation of the Act.

Citation 2, item 44. Respondent admits it knew or should have known that the injury
cited at citation 2, item 44 should have been recorded. That injury took place on August 27,
1999. Citation 2 item 44 will be affirmed.

Citation 2, item 45. On August 30, 1999, Eddie Dietz was injured when a truck he was
a passenger in struck some slabs in Jindal’s sled yard (Tr. 435). Dietz testified that he struck
the windshield and cut his right forearm (Tr. 433). Dietz was taken to the dispensary, where he
was referred by the on-site nurse to OccuCare (Tr. 433; Exh. C-438). Dietz testified that he
was given samples of muscle relaxants and antibiotics at the clinic, which he took twice a day
for two to three days (Tr. 434). In earlier statements Dietz testified that he was given muscle
relaxants for two days, or, pain pills and a packet of four muscle relaxers (Exh. R-29). Dr.
McShane’s notes from the OccuCare accident report indicate that rather than writing a
prescription for Celebrex, Dietz was given samples of the medication.

While Dietz appeared to mistakenly believe that Celebrex, an anti-inflammatory, was a
muscle relaxant, he was sure that he took more than one dose of the medication he was
provided at the clinic. This judge finds that the cited injury was recordable. Jindal had
constructive knowledge of the violation, as discussed at item 16. Item 45 will be affirmed.

Citation 2, item 46. Jindal admits citation 2, item 46, which alleges that a recordable
injury that occurred at Jindal’s facility on September 30, 1999. That injury was not recorded on
the OSHA 200 log in violation of the Act. Item 46 is affirmed.

Citation 2, item 47. At the hearing Arthur testified that he had gotten metal in his eyes
on approximately three different occasions (Tr. 490). Arthur did not recall the dates of each
incident, but remembered that on one of these occasions, he was sent to the clinic, where a
doctor used a magnetic needle to remove the metal from his eye (Tr. 488). Arthur also recalled
being given an eye patch at that time (Tr. 488). Arthur stated that he was going home after
visiting the clinic, and so did not miss any work, or worry about the eye patch (Tr. 488).

The documentary evidence establishes that on the afternoon of October 4, 1999, William
Arthur reported to the San Augustine Industrial Clinic complaining of foreign bodies in his eye
(Exh. C-46; C-232). At the clinic, two foreign bodies were removed from his right eye using
an “alger brush.” Arthur was given an eye patch medicated with Blephamide cream and
released for work. The restriction, “monocular vision” was noted on his accident report (Exh.
C-46). The doctor’s notes further reveal that Arthur returned the following day for a follow-up
exam. At the follow up, Arthur told the doctor that he removed the patch the preceding night.
He complained of a dark discharge from his right eye and of sensitivity to light. A sample of
Ciloxan was provided to him (Exh. C-46).

Ciloxan (Ciprofloxacin HCl) Ophthalmic is a synthetic, sterile, multiple dose,
antimicrobial for topical ophthalmic use. The recommended dosage regimen is: One or two
drops instilled into the affected eye at regular intervals while awake for five to 14 days. As
Ciloxan is not a single dose medication, Arthur’s treatment cannot be classified as first aid, and
his injury was recordable. Jindal had constructive knowledge of the violation, as discussed at
item 16. Item 47 is affirmed.

Citation 2, items 48 through 61 and 63 through 66. These items are not contested.
The violations allege that Jindal knew, or should have known that 18 injuries occurring at their
facility on October 5, and 27, November 1, 4, 17, 19, and December 2, 4, 6, 13, 15, 28, 1999,
and on January 3, 13, 29, February 15, and April 11, 2000 should have been recorded on the
OSHA 200 log. Those items will be affirmed.

Citation 2, item 67. On April 13, 2000, William Arthur reported to the on-site
dispensary to have his eye checked. Jindal’s nurse referred him to Saint Augustine Clinic,
where he was diagnosed with a corneal abrasion, given a medicated eye patch, and released for
work with a restriction for monocular vision (Exh. C–69).

At the hearing, Arthur could recall being given an eye patch following an eye injury (Tr.
491). Arthur stated that he could not have done his job with monocular vision, because his
depth perception would be impaired; however, Arthur stated that he did not miss any time at
work because he was injured right before he was to have four or five days off, so that he did
not have to take any time off (Tr. 488, 491).

Jindal contests willful citation 2, item 67, maintains that the injuries sustained by
William Arthur did not prevent him from performing his normal job duties. This judge agrees.
The Blue Book states that a lost time injury, involving either missed or restriction of work,
occurs only if the employee would have worked during the period affected by the injury. If the
employee was not scheduled to work during that period, the injury need not be counted as a lost
or restricted work time case. Because Arthur testified that he was not scheduled, and therefore
did not miss any work due to his injury, that injury was not recordable. Item 67 is vacated.

Citation 2, item 68. Jindal does not contest item 68. It admits that it knew, or should
have known that the April 18, 2000 injury alleged there in should have been recorded.

Citation 2, item 69. Roy Bohman testified that on April 27, 2000 he hit his head on a
metal plate, sustaining a cut above his ear (Tr. 447, 450). Bohman testified that he was
diagnosed with a mild concussion, and given a prescription (Tr. 447). Bohman stated that he
had the prescription filled at the hospital, and took the medication for four days (Tr. 447-48).
In its brief, Jindal maintains that the notes in Bohman’s medical “presumably the physician’s
handwritten notes,” which it provided in response to discovery are illegible (Jindal’s Post
Hearing Brief, p. 43). However, the notes clearly state that a small laceration to Bohman’s left
ear was infected; 500 mg. Rocephin, and 500 mg. of Cipro, both of which are prescription
broad-spectrum antibiotics, were prescribed. Five days of Cipro were prescribed (Exh. C-71).

The notes corroborate Bohman’s testimony that he received medical treatment in the
form of multiple doses of prescription medication. The injury should have been recorded.
Jindal had constructive knowledge of the violation, as discussed at item 16. Item 69 is
affirmed.

Citation 2, item 70. The Secretary introduced injury reports indicating that on
November 25, 1998 Brandon Aldridge slipped and cut his left arm while picking up a piece of
metal (Exh. C-289). The record does not reveal whether Aldridge returned to work after his
injury; however, on November 30, 1998, Aldridge visited the Baycoast Occupational Medicine
Clinic complaining of back pain suffered as a result of the incident (Exh. C-72). The results of
Aldridge’s back exam were within normal limits (Exh. C-72). Dr. Carl C. Davis recommended
daily physical therapy for three days and placed Aldridge on modified duty; Aldridge was not
to engage in repetitive lifting of weight over 25 pounds (Exh. C-72). Complainant submitted a
November 30, 1998 “transitional duty job offer” from Labor Ready, Aldridge’s employer. The
job offer states that Aldridge has been released by his medical provider for light duty and offers
him an office position for 10 hours a week, at $5.15/hour (Exh. C-289).

Jindal contests citation this item, maintaining that the injuries sustained by Aldridge did
not prevent him from performing his normal job duties. Prior to Aldridge’s injury he was
employed by Jindal as a helper in their sheers department (Exh C-289); after his injury his
physician released him for work, with a restriction against the repetitive lifting of 25 pounds.
Aldridge did not testify at the hearing, and nothing in the evidence indicates whether
Aldridge’s job as a helper involved the repetitive lifting of 25 pounds. This judge cannot infer
from the physician’s report that Aldridge was unable to perform all or any part of his normal
assignments. Although Labor Ready offered Aldridge a transfer to light duty, nothing in the
evidence indicates whether Aldridge needed or accepted that offer. This judge notes that on
the same day the offer of transitional employment was made, a Labor Ready representative
completed an accident investigation report in which the investigator quoted Aldridge as
promising to “start paying attention to the job (Exh. C-289). This judge declines to infer from
Labor Ready’s offer of transitional employment that Aldridge was unable to, or even that he
did not resume his normal duties at Jindal on December 1, 1998.

The Secretary has failed to carry her burden of proof on this item, and it will be vacated.

Citation 2, items 71 through 77. Jindal admits that it knew, or should have known that
the injuries cited at citation 2, items 71 through 77 should have been recorded. The cited
injuries, which occurred on March 2, June 3, June 17, June 29, August 12, November 10 and
December 3, 1998 were not recorded on the OSHA 200 log as required under the Act, and
items 71 through 77 are affirmed.

Citation 2, item 78. Complainant introduced an accident report stating that on April 21,
1998, Theresa Holub strained her right shoulder lifting 50-60 pounds of steel (Exh. C-81).
Holub’s medical records indicate that on April 24, 1998, she was diagnosed with shoulder
strain and given a prescription for Dolobid (Exh. C-82). The Physician’s Desk Reference states
that Dolobid is a non-steroidal anti-inflammatory drug used to treat mild to moderate pain and
relieve the inflammation, swelling, stiffness, and joint pain. The starting dose is 1,000
milligrams, followed by 500 milligrams every 8 to 12 hours, depending on the individual. Dr.
John D. Dang released Holub with instructions that she was not repetitively lift 20 pounds
(Exh. C-82). Kathy Cowart, the risk manager from Holub’s employer, Meador Staffing
Service, testified that Holub was placed on light duty for six days (Tr. 410).

This judge finds it more likely than not that the prescription Holub received was for
more than one dose. Moreover, the record indicates that she was placed on light duty for six
days and did not return to her assigned duties at Jindal as a result. Her injury was recordable.
Jindal had constructive knowledge of the violation, as discussed at item 16, and item 78 is
affirmed.

Citation 2, item 79. Jindal does not contest item 79. That item alleges that Jindal failed
to record a work related injury that occurred on June 8, 1998, though it knew, or should have
known that the injury was recordable. Item 79 is affirmed.

Citation 2, item 80. Christopher Soraiz testified that while he worked at Jindal, he
dropped a tool onto his right hand, causing it to swell (Tr. 470, 473). Soraiz reported the injury
on April 22, 1998 (Exh. C-85). Dr. Louis F. Puig examined Soraiz on April 23, 1998 (Exh. C-86). Puig released Soraiz for restricted work, advising him not to lift over 20 pounds, push or
pull over 30 pounds, or repetitively grasp with his right hand (Exh. C-86). Soraiz testified that
his job included painting shelves and rearranging tools (Tr. 471). Soraiz testified that his job
normally included lifting weights of over 20 pounds and pushing and/or pulling items weighing
30 pounds (Tr. 472). Soraiz is right handed, and could not paint while unable to grasp with his
right hand (Tr. 472-73). Soraiz was released from restricted duty on April 28, 1998 (Exh. C-86).

According to Soraiz, the injury to his hand prevented him from performing portions of
his normally assigned duties during the time his motion was restricted. Jindal maintains that
Soraiz is not a credible witness and argues that his injury did not prevent him from performing
his normal job duties.

This judge finds no reason to discredit Mr. Soraiz’s testimony. Such testimony
establishes that his injury was recordable due to the restriction of motion which resulted
therefrom. Jindal had constructive knowledge of the violation, as discussed at item 16. Item
80 is affirmed.

Citation 2, items 81 through 86. Jindal admits these violations. Items 81 through 86
allege that Jindal failed to record work related injuries which occurred at its plant on February
11, March 14 April 14, May 15, and June 7, 1998 and on September 15, 1999. Because Jindal
admits that it knew, or should have known that the cited injuries were recordable, items 81
through 86 are affirmed.

Citation 2, item 87. On July 30, 1999, Shaun Bishop, a precision flame cutter, suffered
a burn to his left eye (Tr. 492-93; Exh. C-258). Bishop visited the Baycoast Occupational
Medicine Clinic, where he received a prescription for Cortisporin ophthalmic solution, and
released for return for limited duty. Bishop was not to perform any duties requiring depth
perception, and was to wear dark glasses for three days (Tr. 493-94; Exh. C-100). Bishop
testified that he told the physician that there was no way he could do his assigned job with the
use of only one eye. Bishop stated that he was told to take three days off work and, if the
problem resolved itself, the doctor would release him for work (Tr. 494). On August 5, Bishop
returned to Baycoast, and was released from care (Exh. C-100). Bishop testified that he
returned to Jindal, but that his depth of field perception was not the same, and that he could no
longer cut steel plate within the precise parameters required by the quality control department
(Tr. 494). Bishop testified that he was eventually transferred out of the department (Tr. 494-95).

Jindal contests citation this item, maintaining that the injuries sustained by Bishop did
not prevent him from performing his normal job duties, citing a physician’s report, which
found that the burn to Bishop’s eye was completely resolved, and that the eye appeared
completely normal. Mr. Bishop worked as a precision steel cutter at Jindal for only one month
prior to the time of the accident (Exh. C-258), and the record is silent on Bishop’s prior training
and/or experience. On the existing record, this judge is unable to determine whether Bishops
inability to perform as a precision cutter resulted from the cited injury.

The record does establish, however, that the injury to his eye forced Bishop to take off
three days that he would otherwise have worked. As the injury resulted in lost work days, its
should have been recorded ( See, Blue Book, Exh. C-403, pp. 48-49). Jindal had constructive
knowledge of the violation, as discussed at item 16. Item 87 is affirmed.

Citation 2, items 89 through 94. Jindal does not contest these items, which refer to
work related injuries sustained at the Jindal plant on January 14, February 9, June 11, August 5,
September 1, and October 22, 1999. Though Jindal knew, or should have known, that the cited
injuries were recordable, they were not recorded in the OSHA 200 log. Items 88 through 94
are affirmed.

Citation 2, item 95. Accident reports indicate that on July 25, 1999, Bernal
Hendrickson suffered a laceration to his right knee when it was struck by a metal plate (Exh. C-115, C-265). Medical records indicate that Hendrickson visited the Baycoast Clinic on August
11, 1999, at which time the cut was found to be infected. The treating physician prescribed
Keflex, identified by the Physician’s Desk Reference as a cephalosporin antibiotics prescribed
for bacterial infections (Exh. C-116). A Labor Ready accident report states that Hendrickson
was to take the medication for one week (Exh. C-265).

Because Hendrickson was prescribed multiple doses of a prescription medication,

this
injury was recordable. Jindal had constructive knowledge of the violation, as discussed at item

16. Item 95 is affirmed.

Citation 2, item 96. Complainant introduced accident reports indicating that on August
24, 1999, Bernal Hendrickson was injured when hot metal slag splashed into his right eye. The
documents state that Hendrickson’s eye was flushed, but that on August 25, 1999, he visited
the Baycoast Clinic, where he was diagnosed with a corneal abrasion and released for modified
duty (Exh. C-118, C-266). The medical release states that Hendrickson was restricted from
activities requiring depth perception and/or driving of company vehicles (Exh. C-118, p. 1). As
a result of the medical restrictions, Hendrickson’s employer, Labor Ready offered him
transitional, light duty, office work . Hendrickson refused the offer. (Exh. C-117, p. 2). A
Baycoast illness activity and instruction sheet states that Hendrickson was released for work,
without restrictions, on August 26, 1999 (Exh. C-118, p. 2). A workers compensation injury
report indicates that Hendrickson returned to work on August 26,1999 (Exh. C-117, p. 1).

Jindal contests citation 2, item 96. Jindal maintains that the injury suffered by Bernal
Hendrickson did not prevent him from performing his normal job duties. At the time of his
injury Hendrickson’s was employed in Jindal’s “flumes”department (Exh C-266, p. 1). The
record does not reveal whether Hendrickson returned to work after the incident on August 24.
After seeing his physician on August 25, the physician released him for work, with a restriction
against work requiring depth perception, or driving of company vehicles. Hendrickson did not
testify at the hearing, and nothing in the evidence indicates whether his assigned duties in the
flumes department required driving or depth perception. This judge cannot infer from the
physician’s report that Aldridge was unable to perform all or any part of his normal
assignments. Although Labor Ready offered Aldridge a transfer to light duty on August 26,
Hendrickson turned the offer down, apparently returning to work at Jindal following his
physician’s removal of any work restrictions.

The Secretary has failed to carry her burden of proof on this item, and it will be vacated.

Citation 2, items 97 through 103. Jindal does not contest these items, which cite Jindal
for failing to record injuries that occurred on January 11, February 23, June 25, August 2,
August 23, September 17, and December 8, 1999. Because Jindal admits it knew, or should
have known the cited items were recordable, items 97 through 103 are affirmed.

Citation 2, item 104. On October 19, 1999, Tempie Mize suffered a contusion to her
left wrist after dropping a pressure hose on it (Exh. C-274). Ms. Mize sought medical attention
at the Baycoast Clinic, where she was advised to limit the use of her left hand for four days
(Exh. C-134, p. 4). On October 22 Mize returned to Baycoast, where she told medical staff that
she had returned to work, and resumed her normal activities, despite their advice to modify her
activities (Exh. C-134, p. 2). On that occasion, Mize received instructions to wear a brace or
splint on the wrist until 10/25 (Exh. C-134, p. 1). As a result of her physician’s
recommendations, Mize’s employer, Labor Ready offered her a transitional, light duty position.
Mize declined the offer (Exh. C-133, p. 2). Workers’ compensation documents show no break
in Mize’s employment (Exh. C-133, p. 1; C-274, p. 3).

Jindal contests citation 2, item 104. Jindal maintains that the injury suffered by Tempie
Mize did not prevent her from performing her normal job duties. At the time of her injury
Mize’s was employed as a laborer, cleaning Jindal’s basement (Exh C-274, p. 1). After seeing
her physician on October 19, the physician released her for work, with instructions to modify
her activity to minimize the use of her left wrist. Mize did not testify at the hearing and
nothing in the evidence indicates whether her assigned duties required repetitive, or excessive
use of her left wrist. Mize did tell medical personnel that she continued to perform her normal
activities after sustaining the injury. Although Labor Ready offered Mize a transfer to light
duty on October 22, Mize turned the offer down, apparently returning to work at Jindal. This
judge cannot infer from Labor Ready’s offer of light duty that Mize was unable to perform all
or any part of her normal assignments while wearing a brace.

However, Complainant has introduced a February 6, 1998 Compliance Letter, in which
the Secretary interpreted medical treatment to include the use of casts, splints and/or orthopedic
devices designed to immobilize a body part (Exh. C-405, p. 15). Ms. Mize’s injury is
recordable because she was ordered by her physician to wear a brace on her left wrist.

Jindal had constructive knowledge of the violation, as discussed at item 16. Item 104 is
affirmed.

Citation 2, items 105 through 109. Jindal does not contest these items. Recordable
injuries cited therein occurred on February 26, April 14, April 28, September 21, and October
11, 1999. Jindal admits it knew, or should have known that the cited injuries were recordable,
and these five violations are affirmed.

Citation 2, item 110. On May 6, 1999, Ocie Woods, millwright helper, was injured
when a piece of metal lodged in his left eye (Tr. 423; Exh. C-280). Woods sought medical
attention at the Baycoast Clinic, where his eye was flushed with saline solution. Dr. Carl Davis
prescribed 2 drops of Cortisporin ophthalmic solution for four days (Exh. C-144). The
Physician’s Desk Reference states that Cortisporin is a combination of the steroid,
hydrocortisone, and two antibiotics. It is a prescription drug used to relieve inflammatory
conditions such as irritation, swelling, redness, and general eye discomfort, and to treat
superficial bacterial infections of the eye.

Jindal maintains that the injured employee in this case, Ocie Woods, was treated with
“first aid,” based on his testimony at the hearing, at which time Mr. Woods testified that he
believed Dr. Davis gave him Neosporin, a non-prescription antibiotic (Tr. 423). The medical
records clearly that indicate Cortisporin was prescribed. That Mr. Woods recalls a similar
sounding and acting medication is not fatal to the Secretary’s case. Jindal had constructive
knowledge of the violation, as discussed at item 16. Item 110 is affirmed.

Citation 2, items 111 through 113. Jindal admits it knew or should have known that
the cited injuries, occurring on January 28, 1999 and July 27, and October 21, 1999 should
have been recorded on the OSHA 200 log. These three items will be affirmed.

Citation 2, item 114. On June 24, 1999, Greg Golden, a general laborer at Jindal,
dropped a block on his left big toe (Ex. C-281). Golden sought treatment at the Baycoast clinic
on the following day, where the treating physician instructed Golden to wear a “wooden shoe”
for four days (Exh. C-150, p. 1). On June 28, Golden was released for a “trial of regular
activity” (Exh. C-150, p.2).

Jindal maintains that the injury sustained by Greg Golden did not prevent him from
performing his normal job duties. There is, in fact, no evidence establishing what Greg
Golden’s normal job duties consisted of. Complainant argues, however, that in a February 6,
1998 Compliance Letter, the Secretary interpreted medical treatment to include the use of casts,
splints and/or orthopedic devices designed to immobilize a body part (Exh. C-405, p. 15).
Complainant maintains that Mr. Golden’s injury was recordable on that basis alone. There is
no evidence in this record indicating that the purpose of a wooden shoe is to immobilize, rather
than to merely protect a damaged toe. In the absence of such evidence there is no basis to
support this item. Item 114 is vacated.

Citation 2, items 115 through 122. Jindal admits the recordability of these items,
which cite injuries sustained at its facility on January 25, January 28, February 9, March 9,
March 14, March 18, April 12, and April 22, 2000. Because those items were not recorded on
the OSHA 200 log.

Willfulness

The Commission has defined a willful violation as one “committed with intentional,
knowing or voluntary disregard for the requirements of the Act or with plain indifference to
employee safety.” Valdak Corp. , 17 BNA OSHC 1135, 1136, 1993-95 CCH OSHD ¶30,759, p.
42,740 (No. 93-239, 1995), aff'd, 73 F.3d 1466 (8th Cir. 1996). A series of disparate violations
may be found willful based on evidence that such violations are part of a deliberate pattern,
practice, or course of conduct. See, Kaspar Wire Works, Inc. (Kaspar), 18 BNA OSHC 2178,
2000 BNA OSHC ¶32,134 (No. 90-2775, 2000), appeal filed , No. 00-1392 (D.C. Cir. Sept. 26,
2000). The Secretary need not show that the employer had an evil or malicious motive to show
willfulness. “The state of mind required for a willful violation need be only knowing,
voluntary, or intentional.” Id. at 2183-84.

Temporary Laborers/through October 1999. . Jindal admits its was its deliberate
practice not to record injuries sustained by temporary laborers. It argues that its practice was a
good faith misinterpretation of the OSHA guidelines referring to temporary workers, and so
cannot, as a matter of law, be found willful. The Blue Book states, in relevant part:

If [a temporary laborer is] subject to the supervision of the using firm, the
temporary help supply service contractor is acting merely as a personnel
department for the using firm, and the using firm must keep the records for the
personnel supplied by the service. If the temporary workers remain subject
primarily to the supervision of the supply service, the records must be kept by the
service. In short, the records should usually be kept by the firm responsible for
the day-to-day direction of the employee’s activities.

Gary Jones testified that, prior to advising Craig Wetherington not to record injuries to
temporary laborers, he reviewed Chapter IV of OSHA’s Blue Book. He determined Jindal was
not responsible for recording any injuries suffered by temporary laborers, because they were
employees of the staffing agencies that provided them (Tr. 561-62, 588-90). Jones claimed to
believe that, at one time, Labor Ready provided supervision for their own employees. His
description of the relationship with Labor Ready was: “We asked for a welder. They sent us a
welder. We said: ‘Here’s where you will be working, here’s the welding machine.’ And they
began to work. . ..” (Tr. 595). Phil Billeaudeau, the branch manager of Labor Ready, the
primary personnel agency that supplied temporary labor for both Saw Pipes and Jindal, testified
that laborers supplied by Labor Ready worked under Jindal foremen; it was Jindal’s
responsibility to supervise the workers Labor Ready provided (Tr. 233). Jones also testified
that he based his advice on his belief that Labor Ready was recording the injuries of its own
employees (Tr. 590).

Jindal argues that its decision not to record injuries sustained by temporary laborers is
not willful as a matter of law, relying on Froedtert Memorial Lutheran Hospital, Inc.
(Froedtert) , 1999 WL 503823 (O.S.H.R.C.), in which the judge found that, though deliberately
declining to record injuries suffered by temporary employees, the Respondent’s occupational
health coordinator lacked the requisite “heightened awareness” of the illegality of her actions
necessary to support a finding of willfulness.

As a threshold matter this judge notes that Froedtert is an unreviewed judge’s opinion
without precedential value. If Froedtert has any legal effect, it is of providing notice to
employers that while a temporary laborer performing duties in furtherance of the using
employer’s regular business under the supervision of the hiring employer, work related injuries
and/or illnesses suffered by such temporary laborer must be recorded by the employer on whose
premises the injury occurred. See; Corbesco, Inc. v. Dole , 926 F.2d 422 (5th Cir. 1991) . This
judge notes that in an earlier case, Southern Scrap Materials Co., Inc. (SSM), 1997 WL 735352
(O.S.H.R.C.), also cited by Jindal, the judge reached a conclusion nearly identical to that in
Froedtert . In SSM Judge Welch held that the plain wording of the standard focuses on the
injuries and illnesses for the establishment, and that the purpose of the OSHA 200 log is to
identify the types of injuries and the equipment used at the time the injuries occurred. SSM,
like Froedtert, held that the hiring employer was responsible for recording any illnesses or
injuries to workers working at its facility, while performing the hiring employer’s work. Id.

In any event, Jindal’s reliance on Froedtert is misplaced. Though it is true that a finding
of willfulness is not justified where the employer had a good faith opinion that the violative
conditions conformed to the requirements of the cited standard, the Commission has held that
the test of good faith for these purposes is an objective one. The employer’s belief concerning
a factual matter, or as here, concerning the interpretation of a standard, must have been
reasonable under the circumstances. Calang Corp. , 14 BNA OSHC 1789, 1987-90 CCH OSHD
¶29,080 (No. 85-319, 1990). It is abundantly clear that Labor Ready, and the other temporary
labor contractor with whom Jindal dealt, acted merely as conduit to provide labor for Jindal.
Jindal was the firm responsible for the day-to-day direction of the employees’ activities.
According to the plain language of the Blue Book, Jindal was the firm responsible for keeping
the required OSHA injury and illness records. That Labor Ready recorded injuries sustained
by the temporary workers it provided does not affect Jindal’s duty under the standard. For
Jones, who is an attorney, and who worked in the employee relations and compliance
department at Brown & Root before joining Saw Pipes (Tr. 555, 585), to have interpreted the
Blue Book in any other way is not only unreasonable, but incredible. The record establishes
that Craig Wetherington, who was knowledgeable in safety and health matters, and who was
hired to act as Jindal’s safety manager, was aware from his hire date that Jindal had a duty to
record such injuries. He conveyed this information to Jones, who insisted Wetherington under
report injuries or risk losing his job.

Finally, Wetherington, who was ultimately responsible for filling out the OSHA 200
logs through November 1999, admitted that he deliberately, and knowingly, i.e. willfully, failed
to record injuries involving temporary laborers, in contravention of OSHA injury reporting
requirements.

Employee Laborers/through October, 1999 . Craig Wetherington also admitted that he
deliberately under-reported employee injuries on the OSHA 200 logs for 1998, and 1999. He
claimed to be complying with Jindal’s reporting policy, a policy that he believed, and I find to
have been formulated by Gary Jones. He believed that his mandate was to record on the OSHA
200 logs only cases for which a claim had been filed with Workers’ Compensation. Jindal
maintains that Gary Jones never devised such a policy. In support of its contention, Jindal
points to the absence of a 1:1 relationship between its Worker’s Compensation claims and
employee injuries reported on the OSHA 200 (Jindal’s Post Hearing Brief, p. 5-11). Jindal
notes that more than half the injuries on the 200 log were reported to OSHA, but not to
Workers’ Compensation.

This judge does not find Jindal’s argument persuasive. Such mathematic inconsistency
does not rebut Wetherington and White’s testimony that Jindal intentionally under reported
injury and illness information to OSHA. The Secretary need not prove that the deliberate
under reporting actually followed a particular, discernable pattern. See, Kaspar, supra.

Supervisory Misconduct. The employer is responsible for the willful nature of its
supervisors’ intentional misconduct to the same extent that the employer is responsible for its
supervisors’ knowledge of violative conditions. Tampa Shipyards, Inc., 15 BNA OSHC 1533,
1991-93 CCH OSHD ¶29,617 (Nos. 86-360, 86-469, 1992). Once the Secretary has made a
prima facie showing of willfulness based on the actions of the employer’s managerial
personnel, the onus is on the employer to rebut that showing by establishing that the failure to
the manager to follow proper procedures was unpreventable. In particular, the employer must
establish that it had relevant work rules that it adequately communicated and effectively
enforced. See; Consolidated Freightways Corp. , 15 BNA OSHC 1317, 1991-93 CCH OSHD
¶29,500 (No. 86-531, 1991). This Jindal has completely failed to do.

In its brief, Jindal points to the testimony of vice president Joe Hayes, and plant
manager Doug Gates, in which each state that they would have disciplined the safety managers,
had they realized that injuries were not being properly recorded (Tr. 618-19, 271, respectively).
However, at the hearing, both Gates and Hayes testified that, though the safety manager
ostensibly reported to them, they had no way of knowing whether the records were being
properly maintained because they had no expertise in safety and health matters (Tr. 254, 271,
339, 616). According to Hayes, the safety manager had complete control of Jindal’s safety
effort; it was solely the safety manager’s responsibility to keep Jindal in compliance with
OSHA regulations (Tr. 616). T hat duty was never clearly communicated to Wetherington or
McIntosh, however . Wetherington testified that he was never provided with a formal job
description; he was only told that he would be dealing with basic safety operations (Tr. 50).
McIntosh discerned his job duties mainly from review of Wetherington’s files, and specifically
denied being assigned responsibility for OSHA compliance (Tr. 316-17, 364) . Neither Gates
nor Hayes ever monitored either safety manager’s performance, or took any affirmative steps to
discover whether the safety manager was competently discharging his duties (Tr. 263, 623-24).
As conditions stood, Jindal’s upper management was completely insulated from any knowledge
about the management, or, in this case, the mismanagement of the safety department, unless it
was reported to them by the safety manager himself.

And that is exactly what transpired here. The record establishes that Wetherington put
both Gates and Hayes on notice that he was recording injuries improperly based on instructions
from Gary Jones. Wetherington and White complained to Gates that Wetherington had been
instructed to improperly report injuries. Wetherington complained to Hayes about an injury to
a temporary employee that he believed should have been reported. Rather than looking into the
matter, both Gates and Hayes referred Wetherington back to Jones, the originator of the
improper policy. Though Jindal maintains that Jones was a Saw Pipes employee who had no
role whatsoever in Jindal’s managerial hierarchy , Wetherington, White, Gates and McIntosh
unanimously testified that Jones was the final authority in matters relating to Jindal’s injury
reporting, and acted accordingly. Neither Jones, nor anyone in Jindal’s upper management
made any attempt to change the lines of authority.

It is clear from the record that Jindal failed to instruct or monitor its safety manager in
any way. Its management completely abrogated its obligation to ensure compliance with
OSHA regulations, referring all its safety manager’s questions to Gary Jones, an employee of a
sister company. Because the failure of Jindal’s safety manager to follow proper procedures
was not unpreventable, his willful conduct is imputed to Jindal.

Willful items 1 through 6, 8 through 16, 18 through 24, 27 through 31, 33 through 40,
and 42 through 46, involving injuries sustained by Jindal employees during Craig
Wetherington’s tenure, are affirmed.

Items 71 through 87, 89 through 92, 94 and 95, 97 and 98, 100 through 103, 105, 107
through 112 and 114, all of which involve injuries incurred by temporary laborers during
Wetherington’s tenure, are affirmed as willful violations of the Act.

Items 93, 104, 106 and 113 concern injuries sustained by temporary laborers during
October 1999. At that time Jindal had no safety manager. Lisa White testified that she covered
the safety manager’s position until David McIntosh was hired in November (Tr. 168). White
stated that she investigated only one injury during that period (Tr. 168-69). White knew that
the injury was recordable under OSHA criteria; however, she did not record the injury because
Jindal’s policy was not to report injuries sustained by temporary laborers (Tr. 137-40; Exh. C-170). The failure to record is cited at item 93, and was properly classified as willful, for the
reasons discussed above.

Items 104, 106 and 113 also involve recordable injuries to temporary laborers that
occurred during October 1999. The evidence establishes that it was the accepted practice at
Jindal not to conduct follow up on injuries involving temporary workers, because such injuries
were never recorded. Because Jindal’s established practice was the direct cause of these
violations, this judge finds that they were properly classified as willful.

November 1999 through May 2000. Though he was hired as Jindal’s safety manager,
David McIntosh denied any responsibility for completing OSHA 200 logs. McIntosh did
complete them, because he knew the logs were required by law, and because he knew no one
else was maintaining them. McIntosh admitted he realized Jindal was under-reporting injuries,
but denied that he ever made a conscious decision not to record an otherwise recordable injury.

McIntosh specifically denied deliberately failing to record an injury merely because the
injury was suffered by a temporary employee (Tr. 373). Some injuries involving temporary
workers do appear on the 2000 OSHA 200 logs beginning in January (Exh. R-3, R-9). After
learning that Labor Ready’s Phil Billeaudeau told Lisa White in mid to late 1999 that it was
Jindal’s responsibility to record any injuries incurred on Jindal’s property, (Tr. 222, 228),
McIntosh told management, i n a February 2, 2000 Turn Report, that his research confirmed
Jindal’s responsibility for recording injuries and illnesses sustained by temporary laborers
working at the Jindal plant (Tr. 335; Exh. C-385).

This judge finds McIntosh’s testimony that he had no responsibility for the OSHA 200
logs to be disingenuous. McIntosh knew that OSHA required the logs be kept; his predecessor
kept the logs in previous years; he was aware that no one else was responsible for the logs. It is
clear that, despite any clear instructions on the issue, McIntosh knew the OSHA 200 logs fell
within his responsibilities as safety manager. The evidence demonstrates that he first began
keeping the log on December 23, 1999, basing his entries on information compiled by Craig
Wetherington. In his turn reports, McIntosh stated his intent to recreate injury and illness
information for the period after Wetherington’s departure, and to fill in the gaps in the logs at a
later date . This he failed to do. Only two injuries were recorded between December 23, 1999
and the following February when the OSHA log seems to have again come to McIntosh’s
attention. Ten of the 13 injuries recorded for the first half of 2000 were recorded between
March 1, and April 21, 2000 (Exh. R-2; C-400). Because of McIntosh’s negligent recording
practices, approximately half of the injuries occurring on his watch were never reported.
McIntosh blames his sporadic reporting on time constraints, and on the failure of supervisory
personnel to report injuries to him in a timely manner. McIntosh insists that he never decided
not to record an injury sustained by a Jindal employee, and never complied with Jindal’s
unwritten practice of reducing injury and illness numbers by excluding temporary laborers
from the log.

This record paints a picture of a safety manager who was inattentive to the point of
being negligent, resulting in the gross under reporting of injuries on the OSHA 200. Because
Jindal never monitored McIntosh’s performance in any way, it could not expect to discover or
to prevent OSHA violations which resulted from his negligence. Jindal is, therefore,
responsible for McIntosh’s failure to comply with the Act. However, to establish willfulness
under Commission precedent, the Secretary must prove, by a preponderance of the evidence,
that McIntosh and/or Jindal were more than negligent. She must show that McIntosh, and
through him, Jindal, had a “heightened awareness” of the illegality of his actions, and that his
actions were knowing, voluntary or intentional. This they failed to do.

In Kaspar, supra , the Commission was able to infer an intent to under-record where
only 1 in 8 injuries were recorded for the cited period, resulting in a 4.3% injury rate. The
Commission did not base its decision solely on the sheer number of unrecorded cases, however.
Rather a comparison of prior years’ recording and injury rates convinced the Commission that
Kaspar deliberately “chose” to change their recording practices. Id. at 2182-84. Because logs
kept by the same record-keepers showed injury rates of up to 40% in earlier years, the
Commission found it incredible that the consistent under-recording for which Kaspar was cited
resulted from mere negligence or carelessness. The Commission could reach no other
conclusion than that Kaspar’s record-keepers knowingly ceased recording injuries during the
relevant period. Id.

In this case, McIntosh maintains he never chose not to record a given injury; Jindal
maintains that the Secretary failed to introduce any evidence establishing that his failure to
comply with OSHA regulations was anything more than carelessness. McIntosh was hired by a
start up company which never had an effective reporting program in place. McIntosh had been
Jindal’s safety manager for only seven months when the OSHA investigation began. OSHA
had not previously inspected Jindal’s injury and illness logs, or otherwise placed McIntosh, or
Jindal on notice of specific recording requirements. Because his predecessor had actively
engaged in a practice of under-recording OSHA injury rates, McIntosh inherited a recording
system based on deception. McIntosh’s belated start at bringing Jindal into compliance with
OSHA record keeping requirements in December, 1999, and his abandonment of the logs until
the following March, when a spate of entries were made, including injuries sustained by
temporary workers, do not suggest an intent not to report. Rather it suggests inattentiveness,
negligence, and a lack of urgency in establishing a system under which all injuries and illnesses
could be accurately tracked and correctly recorded.

The Secretary has shown that McIntosh knew his predecessor under-reported injuries on
OSHA logs. The Secretary has established that Lisa White told McIntosh that Jindal’s
unwritten policy was to report to OSHA only injuries which were incurred by Jindal
employees, and which were also turned over to Workers’ Compensation. The Secretary did not
show, by a preponderance of the evidence, that McIntosh followed the unwritten policy, or ever
deliberately refrained from recording an injury he knew was recordable. McIntosh recorded
47% of recordable injuries for the first half of 2000, up from Wetherington’s 16% for the
preceding year. McIntosh’s included injuries not submitted to Workers’ Compensation, as well
as injuries sustained by temporary laborers on the OSHA log. These facts, coupled with his
denial of wrongdoing, all militate against finding that his under-reporting was intentional, or
resulted from his adherence to the unwritten policy.

The Secretary did not carry her burden in establishing that the remaining failures to
record were willful. In her complaint, the Secretary alleges, in the alternative, that the record
keeping violations are “serious.” The Commission, however, has generally classified
recordkeeping violations as other-than- serious. See, Kaspar, supra; Caterpillar, 15 BNA
OSHC at 2176-78, 1991-93 CCH OSHD at pp. 42,010-12, fn. 16. Even though recordkeeping
inaccuracies “may affect employees by misleading them about the nature of their working
conditions and by withholding information from organizations, other governmental agencies
and individuals performing research in the safety and health field. . ..” Johnson Controls, 16
BNA OSHC 1048; 1993 CCH OSHD ¶30,018 (No. 90-2179, 1993), there is rarely evidence
that such violations give rise to a "substantial probability" of death or serious physical harm as
is required under §17 of the Act. Because Complainant failed to introduce any evidence that
the cited recordkeeping violations bore a direct relationship to employee safety at Jindal’s work
site, items 47 through 66 and 63 through 66, all of which occurred after McIntosh became
Jindal’s safety director will be affirmed as other-than-serious violations.

Penalties

The Secretary proposed a penalty of $1,062,000 for Jindal’s record keeping violations.
While the Secretary has often exercised her authority to group related violations and propose a
single penalty for a number of related violations, she chose not to do so here. Rather the
violations were individually assessed to increase the total penalty. The $1,062,000 proposed
penalty is inappropriate regardless of how it was derived.

In determining the penalty amount, the single most important factor is the gravity of the
violation. It is clear that the gravity of this group of violations is based on Respondent’s
deliberate decision to under-report certain types of injuries, which resulted in a high percentage
of unreported injuries (Tr. 537).

Because of their importance in monitoring workplace safety
and measuring the effectiveness of safety programs, recordkeeping violations play an important
part in ensuring the safety of the American workforce. However, in proposing a total
recordkeeping penalty of over $1,000,000 the Secretary overstates the gravity of these
violations. Even under the Secretary’s theory of the case, Respondent reported major injuries
to Workers’ Compensation as well as to OSHA while only the more marginal, or less serious
injuries went unreported. A review of the unreported injuries tends to support this. Moreover,
the Secretary did not prove that Jindal’s under-reporting actually immunized them from
inspection. See, Secretary’s Post Hearing Brief, p. 40-42, Exh. C-407). At best, had the
injuries been properly reported, Jindal would have been placed on a “supplemental” list of
employers who might have been targeted for inspection in 2000 had the local OSHA area
office found time. Id. OSHA’s CO admitted that the area office did not perform many
programmed inspections, and mainly responded to complaints, injuries and fatalities, and that
Houston area office might also schedule a programmed inspection for a business in a hazardous
industry, such as Jindal’s (Tr. 532-34).

Based on a review of the violations, I cannot find that the deliberate nature of the
violations, or the number of violations justifies a penalty in excess of $1,000,000.00. While it
is clear that the Secretary may propose cites multiple penalties for separate violations of the
recordkeeping standard, Commission review of the proposed penalty is de novo, and the judge
has discretion to assess a single penalty if deemed appropriate. See, Pepperidge Farm, Inc. , 17,
BNA OSHC 1993, 1997 CCH OSHD ¶31,301; citing, Miniature Nut and Screw Corp. 17 BNA
OSHC 1557, 1996 CCH OSHD ¶30,986 (No. 93-2535, 1996) . Taking into account the Jindal’s
size, over 250 employees, the very low gravity of the violations, and the absence of any
evidence of prior OSHA inspections (Tr. 525-526), this judge finds that a penalty of $70,000 is
appropriate. To effectuate the penalty, all willful items are grouped under one willful violation
and assessed the maximum penalty of $70,000.

With respect to the record keeping items that were found to be other-than-serious rather
than willful, the gravity was overstated for the reasons noted above. All non-willful record
keeping items will be grouped, and a single penalty of $7,000, the maximum allowed, will be
assessed.

Spoliation

Prior to the hearing Complainant moved for a finding that Respondent had spoliated
evidence and requested that a negative inference be drawn. In effect, Complainant alleges
Respondent intentionally destroyed documents requested during discovery; Complainant asked
that record keeping violations she believe would have been established by the missing
documents be affirmed. The motion was denied with leave to raise the matter and present
evidence at the hearing.

The case relied upon by Complainant, Caparotta v. Entergy Corp. 168 F3d 754, 756 (5 th
Cir. 1999), requires a finding of bad conduct by the opposing party before an adverse inference
can be drawn. Complainant has failed to establish that such documents were purposefully
withheld, as opposed to inadvertently misplaced, as Jindal suggests. Having failed to establish
bad conduct the motion is denied.

ORDER

1. Willful citation 2, items 1 through 6, alleging violations of 1904.2(a), are
   AFFIRMED.

2. Willful citation 2, item 7 is WITHDRAWN.

3. Willful citation 2, items 8 through 16 are AFFIRMED.

4. Willful citation 2, item 17, is VACATED.

5. Willful citation 2, items 18 through 24 are AFFIRMED.

6. Willful citation 2, items 25 and 26 are VACATED.

7. Willful citation 2, items 27 through 31 are AFFIRMED.

8. Willful citation 2, item 32, is VACATED.

9. Willful citation 2, items 33 through 40 are AFFIRMED.

10. Willful citation 2, item 41 is WITHDRAWN.

11. Willful citation 2, items 42 through 46 are AFFIRMED.

12. Citation 2, items 47 through 61 are AFFIRMED as “other than serious” violations of
    the Act.

13. Willful citation 2, item 62 is WITHDRAWN.

14. Citation 2, items 63 through 66, are AFFIRMED as “other than serious” violations of
    the Act. .

15. Willful citation 2, item 67, is VACATED.

16. Willful citation 2, items 68 and 69, are AFFIRMED.

17. Willful citation 2, item 70, is VACATED.

18. Willful citation 2, items 71 through 87, are AFFIRMED.

19. Willful citation 2, item 88 is WITHDRAWN.

20. Willful citation 2, items 89 through 95, are AFFIRMED.

21. Willful citation 2, item 96, is VACATED.

22. Willful citation 2, items 97 and 98 are AFFIRMED.

23. Citation 2, item 99 is AFFIRMED as an “other than serious” violation.

24. Willful citation 2, items 100 through 113, are AFFIRMED.

25. Willful citation 2, item 114, is VACATED.

26. Citation 2, items 115 through 118, are AFFIRMED as “other than serious” violations.

27. A single penalty of $70,000.00 is ASSESSED for all items affirmed as willful.

28. A single penalty of $7,000.00 is ASSESSED for all items affirmed as other-than-serious.

29. The partial Settlement agreement disposing of willful citation 2, items 123, 124, 125,
    and 126, having been posted, and not objected to, is hereby approved, and
    incorporated into this order.

/s/

James H. Barkley

Judge, OSHRC

Dated: January 11, 2002