C.P. Buckner Steel Erection, Inc.

Plain-English summary

Buckner's safety and risk manager certified the company's OSHA annual injury and illness summaries for three years. The judge found he was not a qualifying company executive and affirmed three other-than-serious items without penalties. The Commission agreed that he was not the highest-ranking official at the headquarters establishment, and it rejected Buckner's vagueness challenge to that phrase. But the shareholders had unanimously approved his appointment as safety officer, intended him to hold corporate-officer authority on safety matters, and could create additional officers under their agreement. Because the Secretary did not prove he was not an officer of the corporation, all three items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.32(b)(4)
• Outcome: Three other-than-serious annual-summary certification items were vacated.
• Key point: The Secretary must prove that the person certifying an OSHA annual summary falls outside every applicable company-executive category supported by the record.

Full text (OSHRC public release)

C.P. BUCKNER STEEL ERECTION, INC., Docket No. 10-1021

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 10-1021

C.P. BUCKNER STEEL ERECTION, INC.,

Respondent.

ON BRIEFS:

Louise McGauley Betts, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph M.
Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith,
Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Frank L. Kollman, Esq.; Kollman & Saucier, P.A., Timonium, MD

For the Respondent

DECISION

Before: ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

This case involves an other-than-serious recordkeeping citation issued to C.P.
Buckner Steel Erection, Inc. (“Buckner”) under the Occupational Safety and Health Act
of 1970 (“Act”), 29 U.S.C. §§ 651-678. The Secretary alleged in three citation items that
Buckner failed to have a “company executive” certify its annual summaries of workplace
injuries and illnesses entered on its OSHA 300 Logs for 2007, 2008, and 2009, in
violation of 29 C.F.R. § 1904.32(b)(4).

She proposed a penalty of $800 for each alleged
violation. The case, assigned to Simplified Proceedings, was submitted to Judge Sharon
D. Calhoun for decision on a stipulated record and briefs from the parties. The judge
affirmed all three citation items as other-than-serious, but assessed no penalty. For the
following reasons, we reverse the judge and vacate the citation in its entirety.

DISCUSSION

The Secretary’s sole allegation in this case is that Buckner’s Safety and Risk
Manager (“safety manager”) did not qualify as a “company executive” under
§ 1904.32(b)(4) when he certified Buckner’s annual summaries for the years in question.
The judge agreed, rejecting Buckner’s contention that its safety manager fell within two
of the categories of “company executive” listed under the cited regulation: (1) “[t]he
highest ranking company official working at the establishment”; and (2) “[a]n officer of
the corporation.” 29 C.F.R. § 1904.32(b)(4)(ii), (iii). Buckner also contended that the
phrase “highest ranking company official” is unenforceably vague, but the judge found
that the company had waived this affirmative defense.

On review, Buckner argues that each of the judge’s rulings on these issues was
erroneous. As a procedural matter, we conclude that the judge erred in determining that
Buckner had waived its vagueness defense, though we reject this defense on the merits.
Additionally, based on our review of the stipulated record, we conclude the judge
properly found that the safety manager was not “[t]he highest ranking company official
working at the establishment” for purposes of § 1904.32(b)(4)(iii), but she erred in
finding the Secretary established that the safety manager was not “[a]n officer of the
corporation” for purposes of § 1904.32(b)(4)(ii).

I.           Highest ranking company official working at the establishment

Vagueness

Buckner argues that the phrase “highest ranking company official” in
§ 1904.32(b)(4)(iii) is unenforceably vague because the meaning of the words “highest
ranking” may vary depending on the nature of the organization at issue. As an example,
Buckner notes that in a “paramilitary” organization, such as a police force or fire
department, a defined ranking system is in place, whereas a corporation may have no
meaningful ranking system. With respect to its own operations, Buckner asserts that its
safety manager’s word is “supreme on safety” matters, but its president “may be able to
fire” the safety manager. Buckner seems to suggest that under these circumstances, it
would be impossible to determine who qualifies as the highest ranking company official
for purposes of compliance with § 1904.32(b)(4)(iii).

Raising the issue of waiver sua sponte , the judge concluded that Buckner had
waived its vagueness argument by failing to include this affirmative defense in its notice
of contest. We disagree. Ordinarily in a Commission proceeding, the parties are
required to file pleadings and a respondent must include in its answer “all affirmative
defenses being asserted.” Commission Rule 34(a), (b), 29 C.F.R. § 2200.34(a), (b). But
in a case assigned to Simplified Proceedings, as this one was, the parties generally are not
required to file pleadings; instead, “[e]arly discussions among the parties and the
Administrative Law Judge are required to narrow and define the disputes between the
parties.”

Commission Rule 201(b)(1), 29 C.F.R. 2200.201(b)(1); see Commission Rule
207, 29 C.F.R. § 2200.207 (providing that in Simplified Proceedings, judge must hold
pre-hearing conference at which “the parties will discuss . . . any . . . pertinent matter”
including “defenses,” and that, “[e]xcept under extraordinary circumstances, any
affirmative defenses not raised at the pre-hearing conference may not be raised later”).
The Secretary does not dispute that Buckner mentioned the vagueness issue during their
pre-hearing conference with the judge. And about nine days after the conference,
Buckner explicitly raised the defense in its brief to the judge, but the Secretary never
filed an objection with the judge even though, following the parties’ simultaneous
submission of briefs, she had more than one month to do so before the judge issued a
decision. Under these circumstances, the requirements of applicable Commission
procedural rules were met. Accordingly, we find that the judge erred in requiring
Buckner to raise its vagueness challenge in its notice of contest and treating its failure to
do so as a waiver of the affirmative defense.

Reaching the merits of Buckner’s defense, we conclude that the phrase “highest
ranking company official,” as applied in this case, is not unenforceably vague. “To
determine whether a [regulation] is unenforceably vague, the Commission first examines
the language of the [regulation] at issue, which is ‘viewed in context, not in isolation.’ ”
Dayton Tire, Bridgestone/Firestone (“ Dayton ”), 23 BNA OSHC 1247, 1251, 2010 CCH
OSHD ¶ 33,098, p. 54,815 (No. 94-1374, 2010) (citation omitted), rev’d in part on other
grounds , No. 10-1362 (D.C. Cir. Mar. 6, 2012). If the Commission concludes that the
language is vague, then it considers whether “a reasonable person, examining the
generalized [regulation] in the light of a particular set of circumstances, can determine
what is required.” Id. (citation and internal quotation marks omitted).

We agree with the Secretary that the phrase “highest ranking company official”
plainly means the official with the “greatest overall authority.” As appropriate to the
context in which the words are being used here, the adjective “high” means “great, or
greater than normal,” and the superlative of that word therefore means “greatest”; the
adjective “ranking” means “having a specified position in a scale of achievement or
status”; and the noun “official” means “a person . . . having official duties, esp. as a
representative of an organization.” New Oxford American Dictionary 796, 1181,
1402 (2d Ed. 2005); see Dayton , 23 BNA OSHC at 1251, 2010 CCH OSHD at p. 54,815
(stating that language of standard is “ ‘viewed in context, not in isolation’ ” (citation
omitted)). The “highest ranking company official” would thus be “a person” who has
“official duties,” particularly as a representative of the company, whose “specified
position” in the company is of the “greatest” degree “in a scale of achievement or status.”

In any company, including Buckner, the president would likely occupy such a
position. But regardless, the company owner or top level management would know how
the company is organized and should be able to determine which person has the greatest
overall authority and is, therefore, the highest ranking company official. Cf. J.A. Jones
Constr. Co. , 15 BNA OSHC 2201, 2207, 1991-93 CCH OSHD ¶ 29,964, p. 41,026 (No.
87-2059, 1993) (consolidated) (stating that even though “frequent” is nonspecific term,
“a reasonable person familiar with the size of the worksite and the magnitude of the
ongoing construction activity would understand how often inspections would have to be
conducted to keep track of safety hazards at the site”). We therefore reject Buckner’s
argument that the phrase “highest ranking company official” is unenforceably vague.

Compliance

In the alternative, Buckner argues that the stipulated record shows its safety
manager was the “highest ranking company official working at the establishment” for
purposes of § 1904.32(b)(4)(iii). The judge rejected this argument, concluding that
Buckner’s president rather than its safety manager was the highest ranking company
official working at corporate headquarters, the establishment at issue.

Based on our review of the stipulated record, we agree with the judge that
Buckner’s president was a higher ranking company official than its safety manager. The
parties stipulated that the president, also one of three shareholders of the company that
owns Buckner, was “the highest ranking company official” at Buckner’s corporate
headquarters with respect to all matters but safety. Although the parties also stipulated
that the safety manager “outrank[ed]” the president with respect to safety matters, we
find that the president’s position in the company and his status as shareholder in a closely
held corporation shows that he possessed more authority in the company, and at the
establishment at issue, than the safety manager. Indeed, the parties stipulated that the
president hired the safety manager and, as a shareholder, the president could certainly
take steps to fire him or even eliminate his position. Under these facts, we conclude that
Buckner’s safety manager was not the “highest ranking company official working at the
establishment” for purposes of § 1904.32(b)(4)(iii).

II.         Officer of the corporation

Buckner, a North Carolina corporation, argues that its safety manager was an
“officer of the corporation” under § 1904.32(b)(4)(ii), because the corporate
shareholders’ agreement allowed the three shareholders to create officers “at will,” and
the stipulated record shows that the company’s president and shareholders believed they
were creating the position of “corporate safety officer” when the safety manager was
hired. The Secretary maintains, however, that under North Carolina law, the safety
manager was not an officer of the corporation when he certified Buckner’s annual
summaries of its OSHA 300 Logs, because the stipulated record shows that the
shareholders had taken no “affirmative action” to make him one. The judge agreed with
the Secretary, noting that (1) Buckner’s corporate documents listed only the positions of
president, vice-president, and secretary as corporate officers; and (2) the parties
stipulated that “Respondent’s shareholders had not specifically voted or agreed to make
[the safety manager] a corporate Officer of Respondent prior to [OSHA’s] investigation.”

Based on our review of the stipulated record and the Secretary’s arguments, we
conclude that she has failed to demonstrate that Buckner’s safety manager was not an
officer of the corporation under § 1904.32(b)(4)(ii). See Kerns Bros. Tree Serv ., 18 BNA
OSHC 2064, 2067, 2000 CCH OSHD ¶ 32,053, p. 48,003 (No. 96-1719, 2000) (noting
that Secretary bears burden of proof to establish all elements of alleged violation). As
the judge pointed out, the parties stipulated that the shareholders neither “specifically
voted [n]or agreed” to make the safety manager a “corporate Officer of Respondent.”
But the parties also stipulated that Buckner’s president “hired the [safety manager] and
the unanimous shareholders of the Corporation approved his appointment as safety
officer of the Corporation .” (Emphasis added.) Additionally, the parties stipulated that
the shareholders “informally directed” the safety manager to act as Buckner’s “safety
officer,” and that the company president—one of the three shareholders—believed that
the safety manager possessed “the powers and authority of a corporate officer under
North Carolina law.” Indeed, the parties stipulated that the “shareholders intended for
[the safety manager] to have the full powers of the President and the Shareholders of the
Corporation with respect to safety, including signing any reports or forms required by
governmental organizations, such as OSHA.”

These stipulations, considered together with the shareholders’ agreement, rebut
the Secretary’s claim that Buckner’s safety manager was not an officer of the
corporation. Under the shareholders’ agreement, “ [t]he unanimous shareholders may
create additional corporate officers at will. ” (Emphasis added.) This provision of the
agreement mirrors the parties’ stipulation that “ the unanimous shareholders . . . approved
[the safety manager’s] appointment as safety officer of the Corporation ,” which
undermines the Secretary’s claim that the shareholders had taken no action. (Emphasis
added.) And we find no basis in the record to conclude that under North Carolina law the
shareholders were specifically required to do anything more.

In these circumstances, we
conclude that the Secretary has failed to establish that Buckner’s safety manager was not
an officer of the corporation under § 1904.32(b)(4)(ii) at the time he certified the annual
summaries for 2007, 2008, and 2009.

ORDER

We vacate Citation 1, Items 1, 2, and 3.

SO ORDERED.

/s/  

Thomasina V. Rogers

Chairman

/s/  

Cynthia L. Attwood

Dated:   April 25, 2012                                                 Commissioner

Secretary of Labor,

Complainant

v.

OSHRC Docket No. 10-1021

C. P. Buckner Steel Erection, Inc.,

Respondent.

DECISION AND ORDER

C. P. Buckner Steel Erection, Inc. (Buckner Steel), a North Carolina corporation
with headquarters located in Graham, North Carolina, engages in steel erection and other
activities throughout the Eastern United States (Stip. ¶4). Buckner Steel was conducting
temporary construction work at a construction site at Eglin Air Force Base in Florida
when, on April 21, 2010, Occupational Safety and Health Administration (OSHA)
Compliance Officer Henry Miller conducted an inspection of the construction site (Stip.
¶5). As a result of Miller’s inspection, on April 30, 2010, the Secretary issued a citation
to Buckner Steel alleging three other-than-serious violations of the Occupational Safety
and Health Act of 1970 (Act). Buckner Steel denies that it violated any of the cited
standards. Respondent contested the citation and all proposed penalties, and this case
was designated for the Commission’s Simplified Proceedings.

By agreement of the parties, and with the approval of the Administrative Law
Judge, the parties submitted this case for a decision on the record pursuant to
Commission Rule 61, 29 C.F.R. § 2200.61.

The Secretary and Buckner Steel entered
into stipulations of fact on July 13,

2010, and August 2, 2010. The Secretary and Buckner Steel stipulated that all evidence
necessary to decide the case and which would have been presented at a hearing are
presented in the Stipulations and Exhibits thereto (Add. Stip. ¶1).

For the reasons that follow, items 1, 2 and 3 are affirmed as other-than-serious
violations with no penalties assessed for each item.

Jurisdiction

The parties stipulated that jurisdiction of this action is conferred upon the
Occupational Safety and Health Review Commission pursuant to Section 10(c) of the
Act. The parties also stipulated that at all times relevant to this action, Respondent was
an employer engaged in a business affecting interstate commerce within the meaning of
Section 3(5) of the Act, 29 U.S.C. § 652(5). (Stip. ¶¶ 1 and 2 ).

Stipulation of Facts

The following sets out the Stipulation of Facts submitted by the parties:

Stipulations

The parties agree that the following are not in dispute:

1.           Respondent is an employer engaged in a business affecting commerce
within the meaning of § 3(5) of the Act.

2.           The Occupational Safety and Health Review Commission has jurisdiction
over this matter.

3.           The only element of the Secretary’s prima facie case at issue that she must
prove is whether the standard was violated. Classification and penalty are
also at issue and the Respondent has the right to argue that any potential
exposure and/or hazard are ‘De Minimis’ or otherwise minimal. Further,
the Respondent has the right to argue with respect to the Secretary’s prima
facie case that the citation was critically defective for the reasons stated in
Stipulation 6.

4.           The Respondent is a North Carolina corporation with its headquarters
located in Graham, N.C. Respondent, among other things, performs steel
erection throughout the Eastern United States.

5.           The citation arose out of an inspection of a construction site at Eglin Air
Force Base in Florida where Respondent was conducting temporary
construction work that was to last less than one year. Mr. Pocock and the
other managers located at Respondent’s Graham, N.C., facility supervised
the work being performed at the Florida location. The only citation issued
to Respondent following a complete inspection of the construction site
was the citation involved in this matter. The OSHA 300 forms at issue
were for Respondent’s entire operation at all construction and work sites
throughout the company.

6.           The citation was not signed by the Area Director. The citation contains
the handwritten notation ‘Jeff Romeo FOR’ the Area Director.

7.          Exhibit A is a true and accurate copy of the Surrender and Cancellation of
Certificated Shares, Restatement of Corporate Records, and Corporate
Resolutions of C. P. Buckner Steel Erection, Inc.; Share Exchange for
Issuance of Shares of CPB, Inc.; and Shareholders Agreement of CPB,
Inc., and Corporate Resolutions of CPB, Inc., and is Respondent’s only
relevant organic corporate document under North Carolina corporation
law prescribing, among other things, the selection of officers of
Respondent.

8.           Exhibit B is a true and accurate copy of the Personal Professional Profile
of George R. ‘Chip’ Pocock, Respondent’s Safety and Risk Manager, the
individual who signed the OSHA 300 forms on behalf of Respondent that
are the subject of this action. The document contains the qualifications
and experience of Mr. Pocock. Mr. Pocock has held the position of Safety
and Risk Manager at all times material to this proceeding, and he has held
the same duties, authority, and responsibilities during that time.

9.           Doug Williams is President of Respondent and has been at all times
material to this proceeding. Doug Williams’ office is located at
Respondent’s Graham, N.C., location.

10.         Although Respondent’s shareholders had not specifically voted or agreed
to make Mr. Pocock a corporate Officer of Respondent prior to the
investigation, Doug Williams hired Mr. Pocock and the unanimous
shareholders of the Corporation approved his appointment as safety
officer of the Corporation, giving him the title Safety and Risk Manager.
Williams and the other shareholders have designated Mr. Pocock as the
highest ranking officer in the Corporation in matters of safety. In that
respect, Mr. Pocock has the authority to make any decision relating to
safety (or to override any other person’s decision relating to safety),
without restriction. He is the highest ranking officer of the Respondent
with respect to safety matters, and while Buckner does not have a ranking’
system like a military or paramilitary organization, he ‘outranks’ even
Doug Williams with respect to matters of safety. The shareholders have
informally directed Mr. Pocock to act as the corporation’s safety officer
and representative in all matters relating to safety, and Respondent’s
shareholders intended for him to have the full powers of the President and
the Shareholders of the Corporation with respect to safety, including
signing any reports or forms required by governmental organizations, such
as OSHA. As far as the shareholders are concerned, Mr. Pocock can and
does lawfully sign such forms for the Corporation and its other officers
and shareholders.

11.        As for all matters other than safety, Doug Williams is the highest ranking
company official for the location in Graham, N.C.

12.         When Mr. Pocock is on a construction site where Respondent is doing
work, he is the highest ranking official of Respondent, meaning that he
has supervisory authority over every employee of Respondent at that
construction site. Mr. Pocock had supervisory authority over every
employee of Respondent at Eglin Air Force Base. As Respondent’s
corporate safety officer, Mr. Pocock visits Respondent’s jobsites,
including Eglin Air Force Base, but also has an office in Graham, N.C.

13.         Prior to the issuance of the citation in this matter, Respondent (through
Doug Williams and the other shareholders) did not take formal steps (such
as creating minutes or other official documents) to create the corporate
position of Safety Officer or to appoint Mr. Pocock as an officer of
Respondent.

14.         Doug Williams would testify that it is his understanding that the
shareholders intended Mr. Pocock to have all the powers and authority of
a corporate officer under North Carolina law. He would further testify
that Respondent never thought that there would come a time when it
would have to contend and prove that it had created a corporate officer’s
position with respect to Mr. Pocock, thinking instead that Respondent
would never claim that Mr. Pocock did not have plenary corporate officer
authority as to all matters relating to safety.

15.         Respondent’s shareholders believe - based on legal advice - - that
Respondent has other lesser corporate officers whose appointments are
similarly not memorialized in minutes or other official corporate
documents. With respect to safety, the shareholders agreed that Mr.
Pocock outranks all officers of Respondent.

16.         Following the issuance of the citation, the shareholders of Respondent
designated Mr. Pocock ‘Corporate Safety Officer,’ and ratified all his
actions since his hire, but did not memorialize those actions in a written
document. Mr. Pocock’s duties have not changed.

Additional Stipulations

In addition to the Stipulations the parties previously filed, they further agree that:  

1.           All evidence necessary to decide this case, and which would have been
presented had a hearing been held, is presented in this document and the
parties joint document entitled ‘Stipulations,’ including exhibits thereto,
which the parties agree are true and accurate and all admissible as
evidence in this case.

2.           The Federal Occupational Safety and Health Administration did not
conduct an investigation of Respondent prior to the current investigation
upon which this case is based and during which it requested and received
the OSHA 300 logs for 2007, 2008 and 2009.

3.           Other than the evidence that state inspections occurred, there is no
evidence that Complainant actually knew of the alleged violative
conditions cited in this case. Further, there is no evidence that the state
plan agencies shared OSHA 300 logs for 2007 and 2008 with the Federal
Occupational Safety and Health Administration.

Background

Buckner Steel was performing temporary construction work of less than one
year’s duration at Eglin Air Force Base at the time of OSHA’s inspection. The work
activity was supervised by Buckner Steel’s managers located at its Graham, North
Carolina facility (Stip. ¶5). During OSHA’s inspection of Buckner Steel, Compliance
Officer Miller reviewed Buckner Steel’s OSHA 300 forms for the years 2007, 2008 and
2009 for all Buckner Steel construction and work sites (Stip. ¶¶ 5, 8). The OSHA 300
forms for these years were signed by George R. “Chip” Pocock, Safety and Risk
Manager for Buckner Steel (Stip. ¶8). Pursuant to the recordkeeping standards,
Compliance Officer Miller determined that Mr. Pocock, as Safety and Risk Manager, was
not the appropriate company executive to certify the OSHA 300 forms.

As a result of Miller’s inspection, the Secretary issued the citation that gave rise
to the instant case. The Citation

The Secretary alleges that Buckner Steel violated OSHA’s recordkeeping standard
regarding the certification of OSHA Logs. To prove a violation of an OSHA standard, the
Secretary must show by a preponderance of the evidence that (1) the cited standard
applies, (2) there was noncompliance with its terms, (3) employees had access to the
violative conditions, and (4) the cited employer had actual or constructive knowledge of
those conditions. Southwestern Bell Telephone Co., 19 BNA OSHC 1097, 1098 (No. 98-1748, 2000).

The parties stipulated that the cited standards apply to the cited conditions, that
employees had access to the violative conditions, and that Buckner Steel had actual or
constructive knowledge of the violative conditions. (Stipulations). Left for decision is
whether there was noncompliance with the terms of the cited standard.

Items 1, 2 and 3: Alleged Other-Than-Serious Violations of § 1904.32(b)(4) Whether there was noncompliance with the terms of the cited standard .

The Secretary charges Buckner Steel with violating §1904.32(b)(4) of the
standard, which provides:

Who is considered a company executive? The company executive who
certifies the log must be one of the following persons:

(i)          An owner of the company (only if the company is a sole proprietorship or
partnership);

(ii)         An officer of the corporation;

(iii)        The highest ranking company official working at the establishment; or

(iv)        The immediate supervisor of the highest ranking company official
working at the establishment.

The citation alleges that the company executive who certified the “OSHA 300
Log was not one of the persons listed in items (i) through (iv) of the standard,” in that the
OSHA 300A Annual Summaries for 2007, 2008 and 2009 “[were] signed by the Safety
and Risk Manager.” Buckner Steel contends there was no violation of the standard
because the Safety and Risk Manager Pocock is a company executive who can certify the
OSHA300A annual summary log pursuant to 29 C.F.R. § 1904.32(b)(4) (Respondent’s
Brief, p. 1).  

The record before the undersigned shows that at the time of the inspection,
Buckner Steel had three corporate officers: President, Doug Williams; Vice President,
Eddie Williams; and Secretary, Carol B. “Pat” Williams. (Exh. “A,” Stipulations).

The
record also shows that the highest ranking official at Buckner Steel’s establishment was
Doug Williams. (Stip. 9). There is no evidence that Mr. Williams had an immediate
supervisor at the establishment. Further, the parties stipulated that “Respondent’s
shareholders had not specifically voted or agreed to make Mr. Pocock a corporate Officer
of Respondent prior to the investigation.” (Stip. ¶10).

Respondent asserts that the fact that Mr. Pocock had not officially been made an
officer is of no consequence because in actuality he is the “highest ranking officer” in
charge of safety for the company, and that where safety is concerned, he surpasses Doug
Williams, President of the Respondent. (Stip. ¶¶ 10 , 11). The standard does not
mandate certification by the highest ranking officer in charge of safety; rather,
certification by the highest ranking official is required.

Respondent’s argument is contrary to the purpose of the standard which is to
assure accountability and accuracy of the OSHA Logs and Summaries by placing the
responsibility for certification at the highest corporate level. Under the revised
recordkeeping and reporting regulations, the Secretary imposed explicit obligations on
high-level company executives to certify the annual log and summary. The preamble in
the final rulemaking notice explained: “OSHA concludes that the company executive
certification process will ensure greater completeness and accuracy of the Summary by
raising accountability for OSHA recordkeeping to a higher managerial level . . . OSHA
believes that senior management accountability is essential if the Log and Annual
Summary are to be accurate and complete.” Id. at 6,043. Final Rule for Occupational
Injury and Illness Recording and Reporting Requirements , 66 Fed. Reg. 5,916 (January.
19, 2001) (codified at § 1904.32(b)(3), (4)). Safety and Risk Manager Pocock at the time
of the inspection was not a corporate officer, was not the highest ranking company
official at the establishment and was not the immediate supervisor of the highest ranking
official at the establishment at the time he certified the annual summaries for 2007, 2008
and 2009. Accordingly, the Secretary has established that Buckner Steel failed to have
an appropriate person certify the 300A Annual Summary as provided for by the standard .    

Whether the citation should be vacated .

Buckner Steel contends that the citation should be vacated or partially vacated
for several reasons arguing (1) that the statute of limitations applies to items 1 and 2 of
the citation; (2) that the citation was not properly issued by the Area Director; and (3)
that the Secretary never identified Graham, North Carolina, as the establishment for
purposes of the regulation in either the citation or the complaint.

Items 1 and 2 of the citation are not time barred. Section 9(c) of the Act prohibits
the issuance of a citation “after the expiration of six months following the occurrence of
any violation.” The Commission has rejected the argument that the date of violation
from which the six-month period begins to run is the date on which the violative
condition first came into existence. See Kaspar Electroplating Corp ., 16 BNA OSHC
1517 (No. 90-2866, 1993) (for purposes of § 9(c), the key date is the date of discovery of
violation). The parties stipulated that OSHA had not conducted an investigation of
Buckner Steel prior to the current investigation and that there is no evidence that OSHA
knew of the alleged violative conditions cited here prior to the current investigation.
(Add. Stip. ¶¶ 2, 3 and 4). Accordingly, OSHA could not have discovered the violations
relating to the 2007 and 2008 logs prior to the date of the instant investigation.
Respondent’s argument is rejected.

Respondent’s assertions that the citation was not properly issued and that the
establishment was never identified are disingenuous and place the company’s good faith
in question. Jeff Romeo signed the citation on behalf of the Area Director. There is no
evidence to suggest that Mr. Romeo did not have the authority to sign on behalf of the
Area Director to issue the citation. As to the establishment, there is no requirement that
the identity of the establishment be identified on the citation. Moreover, the parties
stipulated that the work at the inspection site was to last for less than one year and was
being supervised by the managers at the Graham, North Carolina, facility. (Stip. ¶ 5).
This meets of the definition of an establishment as set forth in the standards at § 1904.46.

Whether the standard is vague.

Buckner Steel also contends that the term “highest ranking company official” in
regulation 29 C.F.R. §1904.32 is vague and ambiguous (Buckner Steel’s brief, p. 3).
Vagueness is an affirmative defense that must be raised in the notice of contest or answer
or it will be deemed waived. Puterbaugh Enter., Inc ., 2 BNA OSHC 1030, (No. 1097,
1974). No answer was required to be filed in this case because it was designated under
Simplified Proceedings. Buckner Steel, however, made no allegations regarding
vagueness in its notice of contest, therefore the defense is waived.

Classification

Buckner Steel asserts that if a violation of 29 C.F.R. § 1904.32(b)(4) is found, it
should be classified as a de minimis violation rather than an other-than-serious violation.
The parties have submitted no evidence regarding the classification of the violation . The
Commission has the authority to reclassify a violation as de minimis . El Paso Crane and
Rigging Co., 16 BNA OSHC 1419, 1427 (No. 90-1106, 1993). A de minimis violation
carries no penalty and requires no abatement. Erie Coke Corp ., 15 BNA OSHC 1561,
1571 (No. 91-3606, 1992). Since no abatement would be required with a de minimis
classification, this would be tantamount to giving Buckner Steel the option of not
complying with the standard. See Secretary of Labor v. Cornell & CO. 15 BNA OSHC
1726, 1728 (OSHRC Docket No. 91-990, 1992).

A de minimis violation involves technical non-compliance with a standard and the
non-compliance bears such a negligible relationship to employee safety as to render
inappropriate the assessment of a penalty or the entry of an abatement order. Keco
Industries, Inc., 11 BNA OSHC 1832, 1834 (No. 81-1976, 1984). Also see Otis Elevator
Co ., 17 BNA OSHC 1166, 1168 (No. 90-2046, 1995). Not all instances of
noncompliance with OSHA’s recordkeeping regulations can be classified as de minimis,
however. See General Motors Corp., Electro-Motive Div ., 14 BNA OSHC 2064, 2072 &
n.20 (No. 84-816, 1991) (denial of employee access to medical and exposure records,
inasmuch as use of such records in worker’s compensation proceedings promotes
occupational safety and health); General Motors Corp. Inland Div. , 8 BNA OSHC 2036,
2040-41 (No. 76-5033, 1980) (failure to record on OSHA Form No. 100 three instances
of respiratory illness, inasmuch as such records “play a crucial role in providing the
information necessary to make workplaces safer and healthier”).

The Secretary argues that the purpose of the standard cited here is to raise the
employer’s awareness of safety and to have the highest level executives of an employer
attest to the integrity of its recordkeeping process. The Secretary also points out that this
corporate accountability improves safety awareness, thereby demonstrating a link
between recordkeeping and employee safety (Complainant’s Brief pp. 4, 8 and 10). This
helps achieve the objectives of the Act. Certification of the annual summary entails an
examination of the information therein for accuracy. This process of examination
provides a direct and tangible relationship to employee safety and health. There is no
evidence before the undersigned that this examination occurred here regardless of the
presence of a signature. Therefore, the undersigned finds that Buckner Steel committed
an other-than-serious violation of 29 C.F.R. § 1904.32(b)(4).

Penalty Determination

The Secretary states in her brief that “the CSHO found the severity of the
violation minimal and the probability lessor. Respondent benefitted from a 20% penalty
reduction for its small size” (Complainant’s Brief, p. 11). Respondent contends that
there should be no penalty (Respondent’s Brief, p. 10). However, neither party submitted
any evidence as to the reasonableness of the penalty. The Commission is the final arbiter
of penalties in all contested cases. Secretary v. OSHRC and Interstate Glass Co. , 487
F.2d 438 (8th Cir. 1973). The Commission must determine a reasonable and appropriate
penalty in light of § 17(j) of the Act and may arrive at a different formulation than the
Secretary in assessing the statutory factors. Section 17(j) of the Act requires the
Commission to give “due consideration” to four criteria when assessing penalties: (1) the
size of the employer's business, (2) the gravity of the violation, (3) the good faith of the
employer, and (4) the employer's prior history of violations. 29 U.S.C. § 666(j) . Gravity
is the primary consideration and is determined by the number of employees exposed, the
duration of the exposure, the precautions taken against injury, and the likelihood of an
actual injury. J.A. Jones Construction Co. , 15 BNA OSHC 2201 (No. 87-2059, 1993).

The Commission has held that recordkeeping violations are generally of low
gravity because such violations touch in only the most tangential way the factors that go
to gravity. Caterpillar, Inc. , 15 BNA OSHC 2153, 2178 (No. 87-922, 1993). Here, the
evidence establishes that Buckner Steel, in an effort to comply with the standard,
improperly allowed its Safety and Risk Manager to certify the annual summaries for at
least three years, only tangentially affecting the gravity factors. Therefore, the gravity of
the violations contained in items 1, 2 and 3 are found to be low. As to the other penalty
assessment factors, Buckner Steel’s cooperation during the inspection was not disputed,
and it was conscientious in effecting corrections after the inspection. These good faith
factors weigh against a large penalty. The parties submitted no evidence as to the size of
Buckner Steel, however, the Secretary states in her brief that a 20% reduction for size
was given. The undersigned takes official notice that OSHA’s Field Operations Manual
provides a 20% reduction for employers with 101 to 250 employees. This size factor
weighs in favor of a low penalty. As to history, Buckner Steel’s lack of a citation history
with OSHA prior to the current investigation also weighs in favor of a low penalty.
Considering these facts and the statutory elements, no penalty assessment for each item is
appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED that:

1.           Citation 1, Item 1, alleging a violation of § 1904.32(b)(4), is affirmed, and
a penalty of $0 is assessed;

2.           Citation 1, Item 2, alleging a violation of § 1904.32(b)(4), is affirmed, and
a penalty of $0 is assessed;

3.           Citation 1, Item 3, alleging a violation of § 1904.32(b)(4), is affirmed, and
a penalty of $0 is assessed.

/s/ Sharon D. Calhoun

SHARON D. CALHOUN

Judge

Date:   August 24, 2010

Atlanta, Georgia