Hercules, Inc. and Alliant Techsystems, Inc.

Plain-English summary

OSHA issued Hercules failure-to-abate notices after a settlement required correction of old injury logs and certifications. The underlying citation listed only broad injury categories and counts, while OSHA repeatedly declined to identify the employees and incidents that had to be added. The agency's own count of recordable cases later shifted from 121 to 93, then 63, and finally 54, leaving the required corrections uncertain. OSHA also changed its position several times on who was qualified to certify the historical summaries after relevant managers left and the company's procedures changed. The Commission held that the original notice and later enforcement positions did not give Hercules an implementable abatement obligation and that the existing safety director's certification did not establish continued noncompliance. Both failure-to-abate notices, including proposed penalties exceeding $3.1 million, were vacated; Commissioner Rogers dissented as to the 1988 certification issue.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.2(a); 29 C.F.R. § 1904.4; 29 C.F.R. § 1904.5(c)
• Outcome: Both recordkeeping and certification failure-to-abate notices were vacated.
• Key point: Failure-to-abate liability requires a clear original obligation and proof that the same condition remained; shifting, impracticable agency demands cannot support it.

Full text (OSHRC public release)

Hercules, Inc., and Alliant Techsystems, Inc., Docket No. 95-1483

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 95-1483

HERCULES, INC.,

and

ALLIANT TECHSYSTEMS, INC.

,  

Respondents.

UNITED STEEL WORKERS OF AMERICA,

Authorized Employee

Representative.

DECISION

Before: RAILTON, Chairman, STEPHENS and ROGERS, Commissioners.

BY THE COMMISSION:

Before the Commission for review are two notifications of failure-to-abate
(NFTA’s)

issued under section 17(d)

of the Occupational Safety and Health Act of
1970, 29 U.S.C. §§ 651-678 (“the Act”). The notifications allege that Hercules, which
manufactures explosives at its facility in Kenvil, N.J., failed to comply with earlier
citations requiring that it record occupational injuries and illnesses on the OSHA 200
logs

and that summaries of the logs be properly certified. Administrative Law Judge
Richard DeBenedetto vacated the recording notification and affirmed the certification
notification. For the reasons set forth below we affirm the judge’s decision to vacate the
recording notification but, contrary to the judge, we vacate the certification notification as
well.

Background

The underlying citations, which were issued in 1989, alleged violations of
three recordkeeping regulations: 29 C.F.R. §1904.2(a)

for Hercules’ failure to record 189
instances of occupational injuries on its OSHA 200 logs for 1987, 1988 and 1989;
§1904.4

for its failure to maintain a supplementary equivalent to the OSHA 101 form for
each of the injuries, and §1904.5(c)

for its failure to properly certify the annual summary
of injuries and illnesses. The parties settled these citations on November 5, 1991. As part
of that agreement, Hercules withdrew its notice of contest and agreed to abate the
violations by Dec. 5, 1991. The agreement did not specify an abatement method for these
violations. On Feb. 20, 1992, Hercules notified OSHA that the violations were abated.

The Secretary conducted a follow-up inspection in March 1993 and issued
two notifications of failure-to-abate in September 1993. The first notification alleged that
Hercules failed to add 121 injuries to its 1988 and 1989 OSHA 200 logs

and to supply
the OSHA 101 forms to OSHA for those injuries. The notification alleged that injuries
were not entered on the logs for 440 days. The Secretary proposed a penalty of $7,000 per
day for the recording violations, for a total of $3,080,000. The second notification alleged
that Hercules failed to have the annual summary of occupational injuries and illnesses for
1987 and 1988 certified by “the management official whose sole decision is ultimately
responsible for recording and reporting on the OSHA 200 log.” The Secretary proposed a
penalty of $60,000 for this certification violation, which the judge affirmed.

I. Burden of Proof

A failure-to-abate is shown when the Secretary establishes that (1) the
original citation has become a final order of the Commission, and (2) the condition or
hazard found upon re-inspection is the identical one for which respondent was originally
cited. Braswell Motor Freight Lines, Inc. , 5 BNA OSHC 1469, 1470, 1977-1978 CCH
OSHD ¶ 21,881, p. 26,390 (No. 9480, 1977). However, an employer must receive
adequate notice of the nature of the violations for which it is being cited. Section 9(a) of
the Act requires that a citation “describe with particularity the nature of the violation…”.
29 U.S.C. § 658(a) (emphasis added.) Alden Leeds, Inc. v. OSHRC , 298 F.3d 256, 261 (3d
Cir. 2002). The description of the violation charged need not be “elaborate or technical or
drafted in a particular form[,]” but it must “fairly characterize the violative condition so
that the citation is adequate both to inform the employer of what must be changed and to
allow the Commission, in a subsequent failure-to-correct action, to determine whether the
condition was changed.” Id., citing Marshall v. B.W. Harrison Lumber Co. , 569 F.2d
1303, 1308 (5th Cir. 1978).

On the record before us, with respect to the failure to record violation, we
find that the underlying citation failed to describe the violative conditions in a manner
adequate to inform Hercules what it was required to change to bring itself into
compliance. The record further demonstrates that, with respect to both the failure to
record and the failure to certify violations, after issuance of the underlying citations, the
Secretary’s evaluation of what was required of Hercules was both erratic and impossible
to implement. Accordingly, we vacate both notifications for failure-to-abate.

II. The Recording and Supplemental Record Items

The citation the Secretary issued to Hercules in 1989 alleged that the
company failed to record 189 instances of occupational illness and injuries on the OSHA
200 logs for 1987, 1988 and 1989. The citation did not identify the individuals whose
injuries were not recorded or the specific injuries or illnesses that were not recorded. The
citation listed only broad categories of injuries and the number of injuries within those
categories.

In response to the citation, Hercules made several attempts to have the
Secretary provide it with the information that would enable it to identify the unrecorded
instances and to correctly fill out the OSHA 200 logs. Hercules’ first attempt at obtaining
this information came at an informal conference held before it filed its notice of contest to
the 1989 citation. At this informal conference, Hercules representatives asked OSHA
Area Director Robert Kulick for the names of the employees who suffered the 189
unrecorded injuries. Kulick declined to provide the information and advised them to find
the information in Hercules’ own records. According to notes taken by one of Hercules’
attendees at that conference, Kulick stated that: “Giving you the specifics today will not
aid you in having a better safety record. We got all the data directly from you and we put
it all together so I don’t think you should have any problem doing the same thing.”

We note that the Secretary’s reticence at providing the requested identifying
information was contrary to her usual practice in recordkeeping cases of informing the
employer of what it was required to record in order to bring itself in compliance with the
recordkeeping regulations. See Kohler Co., 16 BNA OSHC 1769, 1993-95 CCH OSHD
¶ 30,457 (No. 88-237, 1994 (over one hundred instance-by-instance recordkeeping items
with individual penalties); Caterpillar, Inc., 15 BNA OSHC 2153, 1991-93 CCH OSHD
¶ 29,962 (No. 87-922, 1993)(same); General Dynamics Corp., 15 BNA OSHC 2122,
1991-93 CCH OSHD ¶ 29,952 (No. 87-1195, 1993) (over 174 instances specified in three
citation items.) Where the pleadings have been unspecific and insufficient, there has been
particularization through discovery. See Wyman-Gordon Co., 15 BNA OSHC 1433,
1991-93 CCH OSHD ¶ 29,550 (No. 84-785, 1991), vac’d on other grounds, 15 BNA
OSHC 1728 (1st Cir. 1992)(agreement between the parties at second prehearing
conference as to which specific documents were at issue in litigation involving access to
employee exposure and medical records).

Here, however, the parties dispute whether the Secretary was forthcoming
even in discovery. On November 6, 1990, during discovery in the earlier case, Hercules
filed an interrogatory asking the Secretary to produce the information that would allow it
to identify the 189 injuries that it was alleged not to have entered on the OSHA 200 log.
In her brief on review, the Secretary asserts that she responded to that discovery request,
by providing sixteen sub-files to Hercules, including the documents, known as “ledger
sheets,” containing the specific names associated with each injury. Hercules, however,
claims that this information was not found in any of the sub-files provided by the
Secretary.

Hercules fared no better after OSHA issued the NFTA’s before us, when it
asked for the information during an informal conference on September 21, 1993. The
Secretary initially agreed to turn over the information, but on the advice of counsel,
refused to provide it, indicating that she would do so at some future time. It was not until
November 1993, two months after issuing the NFTAs, that the Secretary finally provided
the names and Hercules added them to the logs.

The difficulties encountered by Hercules in its attempts to obtain the
information that would enable it to abate were compounded by the Secretary’s inability to
determine which incidents she believed should have been recorded. Compliance Officer
Jane Secor gave deposition testimony that “there has always been a dispute, even within
OSHA itself, as to what the right number of [unrecorded recordable injuries] is.” During
the reinspection, Secor reexamined the 121 instances of injuries and illnesses that
occurred between 1988 and 1989 that she had documented on her ledger sheets during the
original inspection, but determined that only 93 of them were recordable. When the
Secretary forwarded the ledger sheets to her recordkeeping expert, he had considerable
difficulty interpreting them and found that only 63 of the 93 injuries identified by Secor
were recordable. He later concluded that only 54 were recordable; 46 of the 63 injuries
that he had identified at first, plus eight others from among the 121 that Secor had
originally identified for 1988 and 1989. In a response to an interrogatory from Hercules
filed during this NFTA proceeding, the Secretary admitted that she could not
“conclusively demonstrate” the recordability of all 121 injuries that Compliance Officer
Secor originally identified for 1988 and 1989. Then, at the failure-to-abate hearing, the
Secretary’s attorney stated that the “bottom line” is that there were only 54 “recordable
events.”

In his decision, the judge noted that there were still outstanding questions
surrounding the recordability of 15 of these remaining 54 incidents. He concluded that
“[g]iven the limited nature and questionable accuracy of the available information about
the employee injuries and illnesses treated at the Kenvil plant during 1988 and 1989, it is
virtually impossible to piece together what may or may not legitimately be missing from
the OSHA records.”

On this record, it is clear that despite the protracted nature of these
proceedings, the Secretary was never able to provide Hercules with the minimum
information that would allow it to abate the recordkeeping citations. Despite a practice of
issuing recordkeeping citations containing detailed information about what was not
recorded, the Secretary did not provide Hercules with the identity of those who had
suffered occupational injuries or illnesses in either the citation or the complaint. The
Secretary also failed to provide the information when requested at the informal
conference for the original citation. Most telling, at the time the Secretary issued
this failure to abate notification and during her prosecution of this case she could not say
with any great level of certainty what it was that Hercules failed to record. The
recordkeeping notification is vacated.

III. The Certification Item  

In the original citation, the Secretary alleged that Hercules violated 29
C.F.R. §1904.5(c)

on the ground that the certification of log entries were “not made by
the Plant Manager who sole decision is ultimately responsible for the recording and
reporting on the OSHA 200 log.” Under the Secretary’s theory, John Klobus, the person
who certified the logs and summaries for 1987 and 1988 as true and correct, was not
eligible to certify them because in disputed instances he did not exercise final decision-making authority over what injuries and illnesses were entered in the OSHA 200 logs.
After the parties settled the matter, the summaries were recertified by Klobus’ successor,
Roger Dunbar. The Secretary alleges in this NFTA that Dunbar was ineligible to certify
the 1987 and 1988 logs and summaries.

During the two years in question, Hercules allowed its employees to receive
treatment for both work-related and non-work-related injuries and illnesses at its medical
center. To determine which of these injuries and illnesses were work-related and therefore
recordable on the OSHA 200 log, Hercules set up a committee comprised of the plant
manager, safety director Klobus, the injured employee’s supervisor, and the nurse who
supervised the plant’s medical department. In the event of a dispute as to what was
recordable on the OSHA 200, the plant manager made the final determination. The
summary of the logs for 1987 and 1988 were originally prepared and certified by safety
director Klobus.

As was the situation with the NFTA for failure to record, the record
demonstrates that the Secretary’s opinion of who was eligible to certify the summaries
underwent frequent and inconsistent change. Moreover, the Secretary’s determination
regarding who was eligible to certify often came after Hercules no longer employed those
the Secretary considered eligible and therefore were unavailable to certify the summaries.

The Secretary’s position taken when issuing the original citation was that
the plant manager must execute the certification because he exercised final decision-making authority in determining what injuries or illnesses were entered into the OSHA
200 log. In the NFTA, the Secretary adhered to this position but substituted “Management
Official” for “Plant Manager” as the individual “whose sole decision is ultimately
responsible for the recording and reporting on the OSHA 200 log.” Before the judge,
however, the Secretary modified her position and maintained that the summaries could be
certified by anyone in the corporation who has a good faith belief that the contents of the
logs are accurate and complete based on their examination of the logs.

Although
she took this position, the Secretary, for some unexplained reason, continued to maintain
that Klobus, despite his position as safety director, his place on the committee that created
the logs, and his responsibilities in preparing the summaries, was not competent to certify
the logs. Now, with this NFTA on review, and still modifying her position, the Secretary
represents that, after the settlement agreement was signed, “[I]f John Klobus had been
given the task of reexamining the logs and correcting them, then he would have been
delegated supervisory authority in fact and could have certified the Logs.”

We find the metamorphoses of the Secretary’s positions absurd both as a
practical and as a legal matter. First, by the time it settled the items with the Secretary in
November of 1991, Hercules’ management had undergone significant changes. Dick
Best, the plant manager who made the final determinations over the 1987 and 1988
records, left Hercules’ employ in August of 1989. He was succeeded by Will Martin.
Safety director Klobus retired in September of 1992 and was replaced by Roger Dunbar.
In 1989, Hercules changed its recording procedures and gave the safety director
supervisory authority over the logs instead of the plant manager.

After entering into the
settlement agreement the summaries were recertified by Klobus’ successor, Roger
Dunbar.

.

These personnel changes made the Secretary's initial theory in the 1993 NFTA
action --that only the plant manager who supervised the 1987 and 1988 logs could certify
them -- impossible as a practical matter because that person, Best, left the company in
1989.  His successor, Will Martin, did not supervise the preparation of the 1987 and 1988
logs, and had no personal knowledge that would enable him to attest that they were true
and complete. Indeed, after the settlement agreement, with Best gone, only safety director
Klobus was capable of certifying from actual knowledge that the summaries were
accurate. Yet, the Secretary continued to maintain that Klobus was not eligible to certify
the summaries.

The Secretary now contends that if Klobus, the person who was supposedly not
competent to certify the summaries in 1989, but whose supervisory authority over the
logs later that same year was subsequently acknowledged, had then gone back and
recertified the logs he had already certified in 1987 and 1988, Hercules would have been
in compliance. Unfortunately, the Secretary only expressed this view years after Klobus
retired. When Klobus still worked for Hercules and even after he left, the Secretary
insisted that he was not competent to certify the summaries.

Moreover, the Secretary is
essentially asking us to affirm the NFTA because Klobus failed to go back and perform
essentially a redundant act of certifying summaries that he had already certified as true
and complete.

As if the Secretary’s vacillation over who should certify the summaries did not
create enough problems, the search for a person competent to certify the summaries was
further complicated by her refusal or inability to tell Hercules what injuries and illnesses
should have been recorded on the OSHA 200’s. As we discuss, supra, after the Secretary
issued the 1989 citations, she had great difficulty deciding which injuries and illnesses
were recordable.  She only informed Hercules what injuries should have been recorded
after issuing both of the NFTA’s in this case. This indecision and the accompanying
delay in providing the information to Hercules left the OSHA 200’s effectively
incomplete until after the NFTA’s were issued. It would appear that no one, whatever his
or her title or responsibilities at Hercules, would have been able to certify the OSHA
200’s as “true and complete” until that information was supplied. 

We find that the Secretary's shifting theories of who was competent to certify taken
together with Hercules’ personnel changes and the Secretary’s delay in telling Hercules
what was recordable made it infeasible for any person to certify that the summaries were
true and complete. Moreover, after the parties entered into the settlement agreement, the
only person with sufficient knowledge to attest to the truth and completeness of the
summaries and logs was Klobus, the person who did certify them. Yet, the Secretary
refused to accept Klobus as an eligible person until after he left the employ of Hercules.
Under these circumstances, we can only characterize the Secretary’s decision to continue
prosecuting this matter as an irrational one. We therefore conclude that the Secretary did
not establish that Hercules failed to abate the certification requirement. 

IV . Responding to Partial Dissent  

Our dissenting colleague reads our decision as an unwarranted extension of the
York Metal Finishing Co. , 1 BNA OSHC 1655, 1973-74 CCH OSHD ¶17,633 (No. 245,
1974). In addition, it is claimed that we have improperly reallocated the burden of proof
in NFTA cases so that the Secretary must supposedly reprove the underlying violation.
With all due respect, we think that we have not ignored nor changed the import of settled
caselaw but instead have correctly applied it to a case that is rife with unusual facts

In York Metal , the Commission held that in a NFTA proceeding, an employer
could rebut the Secretary’s prima facie case by showing that the condition for which the
employer was originally cited was not in fact a violation notwithstanding the fact that the
employer had not contested the underlying citation. The dissent argues that we have
allowed Hercules to invoke York Metal to challenge that validity of the original citation
after the employer had conceded the merits of that citation by withdrawing its notice of
contest and entering into the October 21, 1991, settlement agreement, which became a
final Commission order on December 21, 1991.

However, we are willing to assume arguendo that the Secretary’s theory of the
violation was legally viable

at the time of the original inspection and that Hercules,
having settled the earlier case, is not in any position to re-litigate the validity of the
violation as originally alleged. Still, we find nothing in the reasoning of York Metal and
its progeny that forecloses the Commission from taking into account, even in cases such
as the instant one involving a settlement, whether “the condition or hazard found upon re-inspection is the identical one for which respondent was originally cited.”

It is certainly
appropriate in any NFTA proceeding to focus on the nature of conditions leading up to
and existing as of the time of the re-inspection, on which the NFTA is based. As
recapped briefly below, the facts of this case present a somewhat unique mix of changing
circumstances (both factually and legally) that also injected ambiguity into the meaning
of settlement agreement. The unusual circumstances, in our view, effectively foreclosed
Hercules from certifying retrospectively the 1988 summary in the manner demanded by
the original citation and therefore it should not be held liable in this NFTA proceeding.
With the record showing the Secretary was eventually willing to concede that Klobus,
who did the 1988 certification in issue, was a qualified supervisor under the then-existing
regulation, the conclusion must be drawn that there was no failure to abate.

The legal conundrum presented here stems from the confluence of the following
facts, one of which is generally characteristic of abating a recordkeeping (including
certification) violation and the remainder of which are peculiar to this case.

First, although it has been observed that a recordkeeping violation “does not differ
in substance from any other condition that must be abated,” Johnson Controls Inc. , 15
BNA OSHC 2132, 2136, 1991-93 CCH OSHD ¶ 29,953, p. 40,965 (No. 89-2614, 1993),
the abatement of a recordkeeping violation is somewhat different than abating a
physically hazardous condition such as an air contaminant violation (under §1910.1000),
for example. In remedying the latter, the focus is on correcting a present condition with
the abatement having a purely prospective effect. In contrast, the abatement of a
recordkeeping violation – or in this instance a certification violation – has not only a
prospective but also a retrospective dimension. Prospectively, the employer has to rectify
its certification procedures so that going forward the annual summaries are properly
certified by a qualified company official. Retrospectively, since at any point in time an
employer must maintain its OSHA-mandated records for the previous 5-year period, id .,
the employer also is faced with investigating historical data in order to ascertain what
corrections in existing records are warranted.

Second, the Secretary’s litigation theory of the original, certification violation was
person-specific – only the plant manager (or management official) whose sole decision
arbitrated what injuries where recorded in the OSHA 200 logs was qualified to certify the
annual summary of the logs. The effect of this interpretation of the certification
regulation was to affix personal accountability (backed by potential criminal and civil
sanctions

) upon the highest-ranking company official who had decisional input in the
determination of recordable injuries and illnesses. Its aim was to ensure greater accuracy
and completeness of the logs and summaries.

What was unusual about this person-specific interpretation of then-existing §1904.5(c) is that the Secretary treated it as
displacing those persons who might otherwise be eligible to certify under the plain words
of the regulations, which allowed certification by the employee “who supervises the
preparation of the annual summary of occupational injuries and illnesses.” At some point
during the course of litigation, as evidenced in her briefs in this NFTA proceeding, the
Secretary abandoned the person-specific approach and resorted to the plain language of
1904.5(c). She was willing to concede that it was appropriate for a company supervisor
below the rank of plant manager to exercise responsibility for the document preparation
of the log and summary and for certification of those documents.

Third, by the time the settlement was finally executed two years after the issuance
of the November 1989 citation, plant manager Best, who had been involved in deciding
the entries for the 1988 injury and illness logs, had long since been replaced. Similarly,
along with the change in plant manager, the recordkeeping procedure had been
substantially overhauled. Hercules no longer relied upon a committee headed by the plant
manager to decide which injuries and illnesses were recordable. Under the new
procedures, implemented after the onset of the OSHA inspections but before issuance of
the original citation, plant manager Martin exercised no screening responsibilities.

Fourth, despite this intervening change in company practice and personnel,
nowhere in the settlement agreement are these circumstances taken into account in
defining what performance was expected of Hercules to abate retrospectively the alleged
violation in the existing records. Unlike an unrelated violation involving conductive
shoes, over which the settlement agreement (in ¶2) spelled out specifically what would
satisfy the abatement obligation, the Secretary relies upon the following general language
(in ¶8a) to cite Hercules for its alleged failure to abate – “All remaining violations alleged
in the complaint will be abated by December 5, 1991 . . ..” We know, however, from the
record that parties engaged in extensive negotiations over the course of two years to settle
the wide array of alleged violations and, considering the record as a whole, it appears that
in the course of these negotiations the Secretary’s representatives became (or should have
reasonably become) aware of Hercules’ changes in both personnel and its recordkeeping
procedures. Had circumstances remained static between the issuance of the citation and
the execution of the settlement, it is arguable that in order to abate the certification
violation under the Secretary’s theory Hercules would have been obligated to direct that
the plant manager who had personally overseen the determination of what injuries and
illnesses were to be entered in the 1988 injury and illness logs – Dick Best – review those
records and discharge the certification responsibility. However, because the situation was
not static, it was no longer practicable, if not impossible, for Hercules to abate the
certification violation retrospectively in accordance with the original citation.

Nor can it
be said with sufficient confidence that the settlement agreement obligated Hercules to
perform something that in fact was impracticable as of execution of the agreement and
thereafter.

Although circumstances have rendered untenable a requirement that the plant
manager must certify the 1988 summary, this does not mean that the requirements of
§1904.5(c) were, or have been, completely ignored. The record does show that the 1988
summary in question was in fact certified by John Klobus, who as Director of Safety had
responsibility for preparation of the OSHA logs. Under normal circumstances, Klobus’
action would have sufficed to comply with the cited regulation, as confirmed by the fact
that in subsequent years during follow-up inspections OSHA made no objection to
certifications done by the safety director.

Finally, we fully agree with our colleague that the Commission should not
facilitate the ability of recalcitrant employers to undermine the sanctity, integrity, and
finality of its orders. Yet, if the remedial purposes of the Act are to be realized, the
Secretary in administering it has an equally important role in prosecuting cases in a
reasoned, consistent, and clearly enunciated manner. Cf. Alden Leeds, Inc. v. OSHRC ,
298 F.3d 256, 261 (3d Cir. 2002). This is so even where the complexity of a case
presents daunting challenges in prosecuting or settling it. On the record before us, a
convincing case, free of doubts and uncertainties, of a failure to abate the certification
violation was not made.

Accordingly, it is ordered that the notifications for failure to abate are vacated.

/s/_______

W. Scott Railton

Chairman

/s/_______

James M. Stephens  

Commissioner

Dated: January 21, 2005                                                                                  

Rogers, Commissioner, concurring in part and dissenting in part:

I agree with my colleagues that the Secretary’s inability to clearly set forth those
incidents that she expected Hercules to record warrants vacating that Notification for
Failure to Abate (NFTA). Under the circumstances, the citation neither “informed[ed] the
employer of what must be changed” nor would it “allow the Commission . . . to determine
whether the condition was changed.”

Alden Leeds, Inc. v. OSHRC , 298 F.3d 256, 261
(3rd Cir. 2002), citing Marshall v. B.W. Harrison Lumber Co. , 569 F.2d 1303, 1308 (5th
Cir. 1978). However, unlike the majority, I would agree with the judge that the Secretary
established that Hercules failed to abate the certification requirements of the
recordkeeping standard for the year 1988.

The original citation unambiguously stated that the annual summary of
occupational injuries and illnesses, which had been certified by John Klobus, should have
been certified by the “Plant Manager whose sole decision is ultimately responsible for the
recording and reporting on the OSHA 200 log.” As part of the settlement agreement for
the original citation, Hercules agreed to abate the violations. In the NFTA, the Secretary
clarified the abatement obligation by referring to “Management Official” instead of
“Plant Manager.” While this change made it easier for Hercules to abate, it did not
eliminate Hercules’ preexisting abatement obligation under the original citation and the
settlement agreement. Thus, unlike the NFTA for failure to record, Hercules’ abatement
obligations for the certification item were clear and unambiguous: have the annual
summary certified by the plant manager (or management official) whose sole decision is
ultimately responsible for recording and reporting. Yet, Hercules certified that it abated
the violation without having the 1988 annual summary recertified by anyone .

I fundamentally disagree with my colleagues’ assessment of this NFTA as
requiring the performance of “essentially a redundant act.” This characterization
downplays the crucial role that an accurate injury and illness recordkeeping system plays
in promoting safe workplaces. As the judge properly noted, Hercules’ recordkeeping
system had serious deficiencies, one of which was a lack of appropriate supervision over
the recordkeeping process. If Hercules had had a proper method of supervising, and
certifying, the creation of the logs and summaries, and had taken the effort to review the
logs and summaries in the context of the required recertification, it might well have
uncovered many of those deficiencies.

My colleagues make much of the fact that Will Martin, the new plant manager at
the time of the settlement agreement, had no personal knowledge relevant to the creation
of the logs and, therefore, was not an appropriate person to certify the annual summary.
However, such a conclusion is speculative. Furthermore, while the settlement agreement
may have required an individual to certify the annual summary who was not present at the
time of the creation of the logs, that does not excuse Hercules’ failure to abide by its
agreement. After all, “[c]orporations do not record knowledge in neural pathways; they
record it in file cabinets . . . .[f]ile cabinets do not ‘forget.’” U.S. v. Ladish Malting Co. ,
135 F.3d 484, 492 (7th Cir. 1998). Having thus agreed to abate the violation, Hercules
could have ensured that any new certifying official had the information necessary to take
the responsibility to reexamine and certify the logs and annual summary.

Moreover, Martin succeeded Dick Best several years before Hercules entered into
the settlement agreement and any problems Hercules had in having the annual summary
certified by Martin should have been made clear to the Secretary before Hercules agreed
to abate the violation as set forth in the citation and complaint. Further, if the agreed
abatement subsequently turned out to be an impossible undertaking, Hercules could at
least have raised the issue with the Secretary before it certified abatement. Instead, it (1)
chose to enter into a settlement agreement that plainly required abatement and then (2)
certified that it had actually abated. Yet, Hercules did not even make a good-faith attempt
to have the 1988 summary certified, whether by the plant manager or anyone else.

Rather, it chose to do nothing until after the Secretary issued this NFTA, at which time Hercules
had the summary recertified by safety supervisor Roger Dunbar.

The majority’s argument that “personnel changes” somehow excused Hercules
from an obligation it voluntarily assumed in its settlement agreement is unavailing.
Hercules cannot evade responsibility for its violative conduct by relying on the change of
personnel. See Caterpillar, Inc. , 17 BNA OSHC 1731, 1732, 1995-97 CCH OSHD ¶
31,134, p. 43,482-83 (No. 93-373, 1996), aff’d 122 F.3d 437 (7th Cir. 1997). Hercules
had a responsibility to make sure that its personnel had the “relevant and available
information it possessed” which they needed to comply with Hercules’ undertaking. See
id. , 1995-97 CCH OSHD at p. 43,483. Despite this responsibility, Hercules took no
action to comply with the settlement agreement with respect to the certification of the
1988 annual summary. See id. at 1733, 1995-97 CCH OSHD at p. 43,483.

Under these circumstances, then, the Secretary’s decision to prosecute can hardly
be characterized as “absurd” or “irrational.” Rather, Hercules’ failure to take any action
to live up to the clear mandate of its own settlement agreement with respect to the 1988
annual summary --- until after the issuance of the NFTA --- was simply irresponsible.

One other matter raised in the majority opinion requires some elaboration. The
majority opinion notes that I do “not explain why Klobus’ certifications of the . . . 1988
summaries were in any way deficient . . ..” The reason is simple – the fact that Klobus’
initial certifications were deficient was effectively resolved in the earlier proceeding.
When Hercules settled the underlying citation alleging that Klobus’ certifications were
deficient, it agreed to a standard non-admission clause, which specifically excepted future
OSHA proceedings:

Except for purposes of these proceedings, and any future proceedings
brought by the Secretary of Labor pursuant to and consistent with the
provisions of the Occupational Safety and Health Act of 1970, neither this
Settlement Agreement nor the respondent’s consent to the entry of a final
order pursuant to this agreement shall constitute an admission by the
respondent of any violations of the Act or the regulations or standards
promulgated thereunder. [emphasis added]

In the settlement, Hercules also withdrew its notice of contest. Thus, in the context of
this failure to abate proceeding, Hercules has admitted that the earlier certifications (by
Klobus) did not comply with the Act and were thus deficient. See Stone Container Corp. ,
14 BNA OSHC 1757, 1762, 1987-90 CCH OSHD ¶ 29,064, pp. 38,819-20 (No. 88-310,
1990) (approval of settlement agreement in which employer withdraws notice of contest
establishes existence of violation of cited standard). See also Ford Development Corp. ,
15 BNA OSHC 2003, 2008, 1991-93 CCH OSHD ¶ 29,900, p. 40,800 (No. 90-1505,
1992), aff’d , 16 F.3d 1219 (6th Cir. 1993)(unpublished)(plain language of settlement
agreement provides basis for repeat violation in later proceeding).

The Commission’s case law has allowed an employer to defend an NFTA by
arguing the absence of an underlying violation where the original citation was
uncontested . York Metal Finishing Co. , 1 BNA OSHC 1655, 1973-74 CCH OSHD
¶17,633 (No. 245, 1974).

However, the Commission has never extended this doctrine to
cases such as this, where the citation was contested but settled.

If the Commission is
indeed extending York by allowing settling employers to relitigate the underlying citation
in NFTA proceedings, and if it is contravening Commission precedent by placing the
burden on the Secretary to reprove the original citation ( see n. 5 supra ), it cannot do so
sub silentio , but owes a more thorough explanation.

See Brock v. Dun-Par Engd. Form
Co. , 843 F.2d 1135, 1137-38 (8th Cir. 1988)(“While the Commission may change its
position, it must give adequate reasons for doing so.”).

In addition, allowing Hercules to revisit the underlying violation in an NFTA
action - after voluntarily conceding a violation for future cases brought by the Secretary
under the Act - is inconsistent with the remedial purposes of the Act. The majority is
effectively giving Hercules - and any similarly situated employer - a second bite at the
apple. The majority is undermining the sanctity, integrity and finality of our final orders.
Recalcitrant employers will be less likely to comply with their abatement obligations
freely undertaken in their own settlement agreements. The result will be less settlement,
more litigation, and less abatement.

The real winners from the majority’s approach will
be lawyers and recalcitrant employers.

Finally, even assuming arguendo that relitigating the underlying citation here was
permissible under Commission and Court precedent, the Commission is nevertheless
faced with a factual finding by the judge in the case before us that Klobus was not an
appropriate person to certify the logs and summaries for 1988. The majority has
effectively reversed this finding by the judge, with an unpersuasive explanation. Under
the circumstances of this case, it is hardly fair for the majority to accuse the Secretary of
being “irrational.”

/s/____

Thomasina V. Rogers

Commissioner

Dated: January 21, 2005

SECRETARY OF LABOR,  

Complainant,

v.

OSHRC Docket No. 95-1486

HERCULES, INC.,

and

ALLIANT TECHSYSTEMS, INC.,

Respondents.

UNITED STEEL WORKERS OF AMERICA,

Authorized Employee:

Representative.

Appearances:

William Staton, Esq.                                                            Michael J. Connolly, Esq.

Office of the Solicitor                                                          Cross Wrock

U.S. Department of Labor                                                    Detroit, MI

For Complainant                                                                  For Respondent

Before: Administrative Law Judge Richard DeBenedetto

DECISION AND ORDER

This case concerns three failure-to-abate items that were included in and subsequently
severed from the case docketed as 93-2790. The three items in the instant case relate to the
charges of failing to abate the following violations: ventilating stored explosives pursuant to 29
C.F.R. § 1910.109(c)(3)(vi); provide for decontamination in emergency response plan under §
1910.120(q)(2)(vii), and certifying the annual summary of occupational injuries and illnesses
pursuant to § 1904.5(c). The parties entered into a stipulated settlement of the first two items
whereby the proposed penalties were reduced from a total of $67,500 to $33,750. The stipulated
settlement was filed on April 14, 1997.

The remaining item in issue charges Hercules, Inc. (Hercules)

with failure to abate the
recordkeeping requirement of certifying the annual summary of occupational injuries and
illnesses (the OSHA 200 log). The Secretary spells out the violation as follows:

Certification of log entries were not made by the Management
Official whose sole decision is ultimately responsible for the
recording and reporting on the OSHA 200 log for Occupational
Injuries and Illnesses for the years 1987 and 1988.

Complaint, ¶ IX, (5). The regulation covering the issue reads as follows:

Each employer, or the officer or employee of the employer who
supervises the preparation of the log and summary of occupational
injuries and illnesses , shall certify that the annual summary of
occupational injuries and illnesses is true and complete. The
certification shall be accomplished by affixing the signature of the
employer, or the officer or employee of the employer who
supervises the preparation of the annual summary of occupational
injuries and illnesses, at the bottom of the last page of the log and
summary or by appending a separate statement to the log and
summary certifying that the summary is true and complete.
(Emphasis added.)

29 C.F.R. § 1904.5(c).

The parties stipulated the admission of certain documents into evidence, including: the
OSHA 200 log for calendar year 1987 and the amended 1987 log. (Exhs. C-3, C-4); the 1988
log (Exh. C-5); compliance officer Secor’s notes of statements purportedly made by nurse
Paulette Canfield and John Klobus (both employed by Hercules) during interviews conducted in
August 1989 and June 1993 (Exhs. C-6, C-7, C-10, C-11); deposition of John Klobus which was
a part of the evidentiary record in the related Hercules recordkeeping case docketed as No. 93-2790 (Exh. C-12). While agreeing that the notes made by compliance officer Secor constituted a
“business record,” Hercules objected to the information contained therein on the ground of
hearsay (Tr. 12). Hercules’s posthearing brief at 4-5.

Whether one views the compliance officers’ notes as records of regularly conducted
activity under Fed. R. Evid. 803(6) or as public investigative reports under Fed. R. Evid. 803(8),
either of which is an exception to hearsay, the statements of employees Canfield and Klobus are
admissions under Fed. R. Evid. 801(d)(2)(D) and since admissions under the Federal Rules are
not hearsay, the double hearsay problem does not arise. Under Fed. R. Evid. 805, “[h]earsay
included within hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule...” As the Court of Appeals stated in
United States v. Lang, 589 F.2d 92, 99 n.2 (2d Cir. 1978):

Whether admissions are properly an exception to the hearsay rule

is a subject which has long intrigued scholars in the field. See

Morgan, Admissions as an Exception to the Hearsay Rule, 30

Yale L.J. 355 (1921); McCormick, supra, at § 262; 4 Weinstein’s

Evidence, supra, at 801(d)(2)[01]; IV Wigmore, supra, at § 1048.

....However, whatever logic supports Rule 805 would seemingly

apply to the vicarious admission sought to be introduced here.

Admissions rightly or wrongly are usually (although not in the

Federal Rules of Evidence) regarded as an exception to the hearsay

rule. McCormick, supra , at § 262.

In any event, the argument over the compliance officers’ notes is misguided; the scope if the
evidence in this case cannot be confined to those documents expressly stipulated into evidence
during the hearing on the log certification issue. The parties do not need reminding that the
companion case, docketed as 93-2790 and categorized as a “big case,” was fully tried on the
merits and a decision was rendered on Hercules’s alleged failure to maintain logs and summaries
of recordable injuries and illnesses in accordance with § 1904.2(a) and § 1904.4.

The present case was severed from that proceeding to facilitate the adjudicative process
by separating the protracted case from the less complex case at hand. The facts and
circumstances in proof which formed the basis for the recordkeeping decision in the 93-2790
case are so closely related to this case that they may appropriately be considered in reaching a
decision in this case. In fact, the stipulated evidence includes the deposition testimony of John
Klobus and Paulette Canfield as well as eight other persons whose discovery depositions were
joint exhibits in the 93-2790 case. Moreover, in its brief Hercules incorporates by reference its
posthearing brief in the 93-2790 case “to the extent that facts and arguments are relevant to the
certification [issue].” Hercules’s brief at 5.

The Secretary contends that Hercules’s annual summaries of injuries and illnesses for
1987 and 1988, which were originally cited in November 1989 for not being properly certified as
true and complete, continued unabated from December 23, 1991, to March 9, 1993. The
Secretary further alleges that the 1987 summary was not certified by anyone when presented to
the compliance officers during a 1989 OSHA inspection, and, even if the ‘87 summary had been
certified by Hercules’s safety supervisor John Klobus or his successor, Roger Dunbar, as
Hercules contends, the certification was not made by “the Management Official whose sole
decision is ultimately responsible for the recording and reporting on the OSHA 200 log.”
Citation and complaint; Secretary’s posthearing brief at 10-13.

The critical facts which were set forth in the 93-2790 Hercules decision are highlighted
here to better fathom the context of the certification issue.

Prior to the fall of 1989, the
recordability of an employee injury or illness for the purposes of the OSHA 200 log was
determined by a “committee” consisting of the plant manager, the safety supervisor/director, the
injured employee’s supervisor, and Paulette Canfield, the nurse who supervised the plant’s
medical department (Tr. 50-51, 59; Exhibit C-7 at 3168-69, Exhibit C-8 at 3166, Exhibit C-20 at
1236, Exhibit C-22 at 2, Exhibit J-3 at 16-17, 27, 31, 76-77, Exhibit J-10 at 23-24, 50, 63).
According to the safety supervisor, this group reviewed employee incidents on a daily basis, its
evaluations initially guided by two sources of information (Exhibit J-10 at 23-25, 50, 59). The
first was a daily log ( or diary) maintained by the two nurses who staffed the Kenvil medical
department documenting employee visits to the department and any treatments given (Tr. 39;
Exhibit J-3 at 18-19, Exhibit J-10 at 18). Because Hercules permitted the medical department
staff to treat employees suffering from non-occupational injuries, the nurses kept two logs, each
labeled accordingly, to differentiate between treatment given for occupational events and that
given for non-occupational events (Tr. 38-39, 42-43; Exhibit C-5, Exhibit C-7 at 3170, Exhibit J-2 at 140-41, Exhibit J-3 at 56, 59, 65-66, 79-80, 120, 122, 130).

The second source of information regarding employee injuries and illnesses maintained
by the medical department was the “same-day medical referral” form, a report that was
occasionally completed by an injured employee and the supervisor in order to document a
particular incident and indicate the steps taken to address it (Tr. 46-47; Exhibit C-6, Exhibit J-10
at 21). Beyond the information provided by these records, members of the recordkeeping
committee, with the exception of the supervising nurse, also conducted “investigations” into the
circumstances surrounding an employee injury and illness before deciding its OSHA
recordability (Exhibit J-3 at 42, 58-59, 71, 77, 80, 114, 117-18, 125-26, Exhibit J-10 at 23-24,
50, 59). The plant manager served as the final authority on recordability decisions and once a
decision was made, the supervising nurse was told whether or not to enter the incident in the
OSHA 200 log (Tr. 51; Exhibit C-7 at 3168-69, Exhibit C-8 at 3166, Exhibit C-22 at 3, Exhibit
J-3 at 26-27, 114, 124, Exhibit J-10 at 17).

Apparently in consequence of OSHA’s inspection and resulting 1989 citation, the Kenvil
plant’s recordkeeping policy was changed by its new plant manager (Exhibit J-1 at 14). Under
the new policy, the supervising nurse was required to record any questionable employee injury
or illness in the OSHA 200 log, with final authority for recordability decisions vested in the
safety department; this essentially eliminated the need to conduct an investigation into each
incident in order to determine recordability (Tr. 235-36; Exhibit J-1 at 42, 55-57, 84-87, 94,
Exhibit J-3 at 45-46, 114-16, 119-20, 124, 133, Exhibit J-6 at 74-75, Exhibit J-10 at 55-56, 61,
Exhibit C-18 at 889, Exhibit C-19 at 2-3). As a result, virtually every employee injury or illness
treated in the plant’s medical department was recorded on the corresponding OSHA 200 log
(Exhibit J-1 at 85-86, Exhibit J-3 at 115). This policy was in effect at the time of the 1993
OSHA reinspection (Tr. 221-22; Exhibit J-6 at 75-76).

Hercules argues that under 29 C.F.R. § 1904.6, it was not required to keep its OSHA 200
logs beyond December 31, 1992, five years following the end of the year to which they relate;

therefore, the 1987 logs became moot after 1992 and cannot form the basis of a 1993 failure-to
abate action. This argument has no merit. The Secretary correctly points out that there is no
legal ground to sustain the notion that the 5-year limitation for retention of records prohibits the
Secretary to bring an enforcement action against an employer who has failed to correct a
recordkeeping violation for which a citation has been issued and has become a final order,
where, as here, the records were available for review by the Secretary.

Hercules also contends that the certifications of the logs by its safety supervisor, John
Klobus, met the requirement of the regulation. Hercules claims, in substance, that it is
inconsistent for the Secretary to claim in this case that the safety supervisor was not the
appropriate management official for certifying the 1987 and 1988 logs when that same official
certified logs for the years 1989, 1990 and 1991 without disapproval by OSHA. Hercules’s brief
at 9.

The Secretary’s enforcement approach can be readily attributed to the two different
recordkeeping practices established by Hercules for recording the logs before and after the 1989
recordkeeping citations were issued by OSHA. As noted above, prior to the fall of 1989,
recordkeeping determinations were made by a committee with the plant manager having final
authority to decide whether an event was recordable. In late 1989, a new policy was established
which required the supervising nurse to record virtually every employee injury or illness treated
in the plant’s medical department despite the fact that a particular case may be open to question.
Although the responsibility for making the final decision was assigned to the safety department,
the need to conduct an investigation to help decide how a particular case should be recorded was
virtually eliminated. As discussed in the Hercules 93-2790 decision, the first procedure resulted
in underrecording injuries in its logs and the second practice led to overrecording.

In the 93-2790 decision, it was found that Hercules’s recordkeeping system, before the
fall of 1989, suffered from serious deficiencies in the essential descriptive information needed to
determine the recording of specific cases. One of the reasons for this problem was the lack of
appropriate supervision of its recordkeeping operation - a factual conclusion expressly reached
in this case by way of reasonable inference from the evidence..

In its brief, at 27, Hercules calls our attention to OSHA’s March 1994 Report to the
House Appropriations Committee which reflects OSHA’s proposal to make certain changes in its
recordkeeping requirements. Among the changes being considered was certification of the log:

CEO Certification of the Log. Another way to improve the
veracity of the OSHA records is to increase the level of corporate
accountability for their content by having a top corporate official
certify in writing that they are accurate and complete. Currently
the OSHA log can be certified by anyone in the corporation .
(Emphasis added.)

OSHA’s statement to the House Appropriations Committee that the current regulation allowed
“anyone in the corporation” to certify the OSHA log is strikingly at odds with the language of §
1910.5(c), which requires certification by “ each [individual] employer, or the officer [of the
corporation] or employee of the employer who supervises the preparation of the log and
summary of occupational injuries and illnesses.”

A corporate officer is distinguished from an agent or management personnel in general in
that the former occupies a position created by the corporate charter and is elected by directors or
stockholders, and the officer, together with his fellow officers, constitutes the corporation. It is
neither contended nor does the record suggest that certification of the logs in question was made
by an officer of the corporation.

According to the regulation, the only other person who may certify the logs is the person
“who supervises the preparation of the log and summary of occupational injuries and illnesses.”
The common meaning of “supervise” is to have charge and direction of, to direct course and
oversee details, to manage with authority. The evidence is clear that Hercules’s safety
supervisor did not in fact supervise the preparation of the logs and summaries, certainly not in
the manner contemplated by the recordkeeping regulations.

It is to be noted that the Secretary takes a less stringent approach in enforcing the
certification requirement under § 1904.5(c):

As a threshold matter, the Secretary does not
contend that the OSHA log must be certified by the
plant manager in all circumstances. Rather, the
Secretary submits that the log may be certified by
anyone in the corporation who has a good faith
belief that the contents of the log are accurate and
complete based on their examination of the log.

Secretary’s brief at 14.

The Secretary’s expansive interpretation of the regulation, which, up to a point, falls
within the ambit of prosecutory discretion, places emphasis on the personal knowledge of the
certifier that the logs are accurate and complete - an attribute that is implicit in the very use of
the term “certification.” To a certain extent, this emphasis is in accord with the proposed
revision of 29 C.F.R. Part 1904 dealing with certification:

§ 1904.6 Preparation, certification and posting of the year-end
summary.

(a)...

(b) A responsible company official (see the definition of
responsible company official for further information) shall sign the
summary of occupational injuries and illnesses to certify that he or
she has examined the OSHA Injury and Illness Log and Summary
and that the entries on the form and the year-end summary are true,
accurate and complete.

61 FR 4060 (Feb. 2, 1996). A “responsible company official” is defined as follows:

Responsible Company Official is the person accountable for
certifying the accuracy and completeness of the entries on the
OSHA Injury and Illness Log and Summary. This person must be
either an owner of the company, an officer of the corporation, the
highest ranking company official working at the establishment, or
the immediate supervisor of the highest ranking company official
working at the establishment.

Id. at 4059.

The Secretary contends that under the circumstances of this case, the only legitimate
person who could have certified the logs was the plant manager:

In the instant case, the only person who determined what
information would be entered in the log, and presumably the only
person who believed that such information was true and complete,
was respondent’s plant manager, Dick Best. Accordingly, in the
instant case, only Mr. Best could certify the 1987 and 1988 logs.

Secretary’s brief at 14-15. In a marginal note, the Secretary explains the point further:

OSHA Compliance Officer Jane Secor testified as to the agency’s
position regarding certification of the log where decisions are
made by a “committee” whose members are not in total agreement
as to what should be recorded. Ms. Secor testified that “if two
parties [on the committee] disagree with the one person as to what
is recordable and he says no, I am not -- I want it on the log and
the other two persons disagree[sic], then that person that disagreed
is the one who should certify that. What I am referring to exactly
is Dick Best” (Tr. 91, Docket No. 93-2790). Ms. Secor further
testified that the task of certifying the log may be delegated to any
competent person, “but they have to agree [with the contents of the
log]” (Tr. 92, Docket No. 93-2790).

Secretary’s brief at 15 n.12.

The Secretary’s argument is seriously flawed. That there was occasional disagreement
among the four-person committee members delegated to consider when and how to record injury
and illness cases does not invalidate the certification of the annual summary (under the
Secretary’s liberal interpretation of the regulation,) when the certification is made by a
committee member who did not have the prevailing vote such as the plant manager had in this
case. The disagreements could have been over matters that fall entirely within a range of
debatable options incident to the regulations, as well as the instructions and guidelines that
inform employers in making recordkeeping determinations. Moreover, whatever the
disagreements might have been among the committee members, there is no evidence to show
that those disagreements persisted and were not resolved by the time the annual summaries were
certified. This discussion addresses the Secretary’s position expressed in her brief, which is
based upon a remarkably broad and liberal reading of § 1904.5(c), previously ascribed herein as
being to a certain extent within her prosecutory discretion. The discretion to liberally construe a
regulation ends at the citation-issuance stage unless that interpretation is consistent with the
regulatory language and is otherwise reasonable. Martin v. OSHRC , 499 U.S. 144, 156, 111
S.Ct. 1171, 1179, 113 L.Ed. 2d 117(1991). Once a citation is contested by the employer, then
the Secretary’s enforcement powers become subject to the adjudicatory process and governed by
the regulatory language in issue.

As discussed above, since no officer of the corporation acted as the certifier, § 1904.5(c)
clearly calls for certification of the annual summary by the person “who supervises the
preparation of the log and summary of occupational injuries and illnesses.” Hercules
acknowledges this point and argues that its safety supervisor, John Klobus, was assigned “the
responsibility to prepare, maintain, and certify that the annual summary for each of the years
1987 and 1988 was true and complete,” and that Klobus “participated in the day-to-day
activities pertaining to reported injuries to make certain that the ‘system’ was functioning; and
additionally, that individual acted in his oversight capacity so that the ‘system’ proceeded in
analyzing reported injuries and initiating required paperwork associated with OSHA
recordability.” Hercules’s brief at 13-14. If this were in fact the case, one may reasonably ask:
Why the need for a four-person committee to make the recordkeeping determinations? And
even if the committee served a useful function over and above the supervisory role of John
Klobus in Hercules’s recordkeeping system, one would expect to see clear evidence
demonstrating Mr. Klobus playing a major part in the committee deliberations instead of being
simply a team member, as shown, for example, by Mr. Klobus’s own testimony when questioned
by Secretary’s counsel during discovery deposition:

Q :Now, who made the final decision as to what was
recordable on the OSHA 200 back in ‘89 [including 1987 and
1988]?

A :Well, ultimately I would say that the decision was the plant
manager’s, but it was all of our efforts in total safety as a team
effort, because, you know, safety was the responsibility of the
safety supervisor, or you would never have a safe plant, so it was a
team effort.

Hercules’s brief at 8 (Emphasis in original).

The evidentiary record does not support Hercules’s claim that its safety supervisor
supervised the preparation of the logs and summaries of injuries and illnesses for the years 1987
and 1988. The Secretary has sustained her burden of proving the failure-to-abate charges.
Hercules’s failure to correct the certification requirement cannot be viewed merely as technical
noncompliance having a negligible relationship to employee safety and health. It was observed
in the 93-2790 Hercules decision that its method of tracking employee injuries and illnesses for
OSHA’s recordkeeping requirements had serious deficiencies and needed to be corrected. One
of the obvious flaws was the lack of appropriate supervision of the recordkeeping process. An
effective mechanism to help ensure the accuracy of the requisite information is strict
enforcement of § 1904.5(c).

The Secretary proposes that Hercules be assessed a penalty of $60,000, in accordance
with the guidelines set forth in the OSHA Field Operations Manual. Under the guidelines, the
Secretary has applied the “unadjusted penalty of $1,000 for each year the [OSHA - 200] form
was not maintained”

(which would be applicable for an initial violation), and that amount is
increased thirtyfold where there is a failure to abate the violation. Secretary’s brief at 16-17.
Considering all relevant factors in this case, it is believed a $60,000 penalty proposed by the
Secretary is supported by section 17 of the OSH Act, 29 U.S.C. § 666.

Based upon the foregoing findings and conclusions, it is

ORDERED that those failure-to-abate items relating to 29 C.F.R. § § 1910.109(c)(3)(vi) and
.120(q)(2)(vii) are affirmed and penalties totaling $33,750 are assessed in accordance with the
settlement agreement. It is further

ORDERED that the charge of failing to abate the certification requirement for the 1987 and
1988 annual summaries of injuries and illnesses is affirmed and a penalty of $60,000 is assessed.

/s/

RICHARD DeBENEDETTO

Judge, OSHRC

Dated:   July 31, 1997

Boston, Massachusetts