UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 14090
GENERAL MOTORS CORPORATION, DELCO AIR CONDITIONING DIVISION,
Respondent.

February 16, 1977

ORDER

The Respondent has filed a Motion to Vacate the Direction for Review in the above-captioned case. It is clear that the Respondent does not seek modification or reversal of the Judge’s decision and, therefore, in accordance with paragraph 1 of the Commission’s policy statement, 41 Fed. Reg. 53015 (1976), Respondent’s motion is GRANTED.

Commissioner Moran would deny the motion.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

Dated: FEB 16, 1977

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 14090
GENERAL MOTORS CORPORATION, DELCO AIR CONDITIONING DIVISION,
Respondent.

FINAL ORDER DATE: May 14, 1976

APPEARANCES:

For the Complainant William E. Curphey, III, Trial Attorney; William J. Kilberg, Solicitor of Labor; Herman Grant, Regional Solicitor; W. F. Kloepfer, Associate Regional Solicitor U. S. Department of Labor 881 Federal Office Building 1240 East Ninth Street Cleveland, Ohio 44199

For the Respondent Russell J. Thomas, Jr., Attorney General Motors Corporation 3044 West Grand Boulevard Detroit, Michigan 48202

DECISION AND ORDER

Oringer, Judge:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter referred to as ‘the Act’) to review a citation alleging a non-serious violation of the standard found at 29 C.F.R. 1904.4, issued by the Secretary of Labor, hereinafter referred to as ‘complainant,’ pursuant to section 9(a) of the Act, and a proposed assessment of penalty thereon issued, in the sum of $100.00, both of which documents were dated June 16, 1975. The citation and notification of proposed penalty were issued after an inspection by a representative of the complainant on May 27, 1975, of the respondent’s work premises located in Moraine City, Ohio. The respondent thereafter filed, with a representative of the complainant, a timely notice of contest contesting the citation and proposed penalty.

The complainant described the alleged violation as follows:

Standard Allegedly Violated	Description of Alleged Violation
29 C.F.R. 1904.4	Failure to maintain a supplementary record (OSHA No. 101) for each occupational injury or illness. E.g. employer was not maintaining a complete copy of the supplementary record (OSHA No. 101). Date by which alleged violation must be corrected immediate upon receipt of citation.

The standard allegedly violated reads as follows:

29 C.F.R. 1904.4 Supplementary record.

In addition to the log of occupational injuries and illnesses provided for under § 1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101. Workmen’s compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHO No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

The respondent, at the trial, did not contest the appropriateness of the abatement date nor the amount of the penalty. (See Note No. 1 on page 2 of respondent’s brief.) The sole issue remaining for decision is whether or not the standard concerned herein was violated.

OPINION

At the completion by the complainant of his case in chief, the respondent moved to dismiss the citation on the grounds that the government did not prove a prima facie case. This tribunal reserved ruling on the respondent’s motion. The respondent rested its case without presenting any proof on the grounds that the Secretary had not made out a case.

This tribunal, while it modified its ruling and reserved on the motion, expressed an opinion at the time that, based on recollection, the complainant had proven a Prima facie case. After thoroughly examining and studying the transcript, we believe that our recollection was erroneous and that the evidence of record indicates that the Secretary failed to prove a prima facie case.

In order for the complainant to prove a prima facie case, it must establish that there was a recordable injury that the respondent had a duty to include in a supplementary record (OSHA Form No. 101 or equivalent). Secretary v. J. E. Roupp & Company, Inc. & Denver Dry Wall Company, Docket Nos. 146 and 147, 7 OSAHRC 919 at page 936; Secretary v. Intermountain Block & Pipe Corp., Docket No. 298, 1 OSAHRC 455 at page 461, 462; Secretary v. Wayne Taysom & Eli Taysom, d/b/a Taysom Construction Company, Docket No. 1141, 15 OSAHRC 506 at pages 515, 516, 517.

While the cited cases are not identical to the one in question, the principle insofar as the quantum of proof that the Secretary needs remains the same. In this case, this tribunal is firmly convinced that there were injuries over the years that OSHA is in effect, in this plant. In the case at bar, the respondent keeps a supplementary form, marked Exhibit No. 1, that was exhibited to the compliance officer. The record evidence revealed that the compliance officer’s main complaint with the form is that it does not indicate the name of the physician who treated the injured employee and, in addition thereto, the details of what the employee was doing when injured. The compliance officer also complained that the name of the company was not on the form. He further complained, on page 22 of the transcript, that the respondent’s form was not as specific as that of the Secretary. He related that item 13 of the Secretary’s form reads, ‘How did the accident occur?’ and requires the employer to describe fully the events that resulted in the injury or occupational illness. In addition, he complains that No. 12 of the Secretary’s form, which reads, ‘What was the employee doing when injured?’ is also deficient on the employer’s form. He also complains that the name of the physician and/or hospital was missing, which are items 13 and 19 on the Secretary’s form.

The major deficiency in the Secretary’s case is that the complainant’s compliance officer never determined that there was any one case where a physician actually treated the employee and whose name was lacking in the employer’s form, nor did he determine that anyone was hospitalized and the name of hospital missing in the employer’s form. He further did not delineate one case where a full description was necessary.

The Secretary may well, upon proper investigation and review of the employer’s form, and inspection and investigation of any one or several cases, find that items are in fact missing that should be there; however, in the instant cause, this type of proof is wholly absent in the record. While the complainant failed to establish such proof, this tribunal, in a search for proof of whether or not the facts existed, searchingly examined the compliance officer and was not able to establish any cases where the items, in fact, were proven missing. After the witness complained that one of the items in which the employer was deficient was the item requiring the name of the physician, he was asked, as follows, on page 24 of the transcript:

‘The Court: So, did you find out whether any were treated by a physician whose names were not on the report?

The Witness: No, sir. Just my personal experience when I was with the Turner Construction Company, I was also the ‘first aider’ and it just happened that many times people—’

Transcript page 25:

‘The Court: I can’t hear you.

The Witness: People get slight injuries and they just don’t require any big attention, except maybe cleaning and small dressing. This is, according to the Act, this doesn’t require any logging in.

The Court: I see. In other words, if an injury is logged in, you would say that a physician is usually called?

The Witness: Not necessarily. If it’s recordable, if it says it’s a recordable injury, to be treated by a physician and nurse.’

‘The Court: Well, why don’t you find out? In the instances that, in those cases the physician’s name is not on the report, was the physician in fact utilized?

The Witness: Well, there’s so many there, it’s been so long, that I just can’t recall.

The Court: Did you make notes: Would your notes help you?

The Witness: I don’t recall making notes on the particular—’

Certainly, there was no case prove that a physician’s name was necessary or missing. Insofar as specific details, there is no proof in the record that the employee’s medical record would not have the specific details written in. Boxes do show areas where the accident may have happened and what part of the body was injured. There is no proof that somewhere in the area reserved for notes that the missing items would not be written in. The only way the Secretary could prove that the employer’s supplementary records are deficient is if he follows a report of a given injury and finds items missing and is able to clearly present such proof upon the trial of the issue. The standard at issue states, inter alia:

‘Workmen’s compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.’

In order to prove that the alternative record maintained by the respondent is deficient, the government should at least be able to present one case wherein it was in fact deficient. In this case, the recollection of the government’s witness was hazy and deficient insofar as the items are concerned and could not prove even one record of injury where the items he complained of were missing. There is no proof that such items were necessary. This is not to say that, if the government reenters the respondent’s workplace, and examines the records, and finds that the supplementary record is deficient in any of the items contained in the OSHA Form No. 101, he could not prove his case. All this tribunal is finding in the instant cause is that the Secretary has failed to adduce sufficient proof to sustain a violation on the evidence of record. As far as the complaint found on page 13 of the transcript that the employer’s name is not on the record, we find that a specious objection. Certainly, an inspecting compliance officer should know the name of the plant he is visiting.

This tribunal agrees with the government that details as to where and how the accident happened, the name of the physician, and the name of the hospital, are necessary items. They aid the administration in adducing facts that are necessary to determine matters seriously concerned with the health and welfare of the employees at the plant. The failure here is to demonstrate that, in any given specific case, such items were missing on the alternative form maintained by the respondent. The witness testified, on page 13 of the transcript, that in comparing the form with the Form OSHA No. 101 he believed there was something like ‘7, 8, possibly 10, items that were not exactly as such, and supposed to be with the 101.’ These were not delineated. There were three items that were fully complained of, however, were not proven deficient inasmuch as no one case was pursued to see whether these items were in fact missing.

The record further indicates the poverty of proof contained therein, on page 22 of the transcript. The record reads as follows:

‘The Court: Let me ask you this. Did you look, when you looked at their records, did you look through the book of records? Did you look through these records?

The Witness: No, I did not, sir, as I recall.’

From the evidence of record, this tribunal cannot determine whether or not the alternative supplementary record maintained by the respondent contains all of the criteria demanded by the Secretary’s Form OSHA No. 101, because sufficient evidence is not contained in the record about any one case where items were missing. Accordingly, the complainant has failed to prove a prima facie case, and the allegation of violation must fall.

Having heard the testimony and observed the demeanor of the witness, and having considered the same, together with the citation, notification of proposed penalty, notice of contest, pleadings, representations, stipulations, and admission of the parties, the preponderance of credible evidence of record supports the following

FINDINGS OF FACT

1. The respondent employs approximately 1908 employees, in and about the workplace complained of herein. The said employees are engaged in the receipt and handling of asbestos, rubber, steel, and other goods which have been shipped from states outside the State of Ohio, into Ohio, and produces and ships compressors and valves, to points outside the State of Ohio. (Complaint and Answer)

2. As a result of an inspection by a representative of the complainant, the respondent was issued a citation on June 16, 1975, alleging one non-serious violation of the Act and a notification of proposed penalty. (Complaint and Answer)

3. A timely notice of contest was filed by the respondent to the citation and notification of proposed penalty (Notice of Contest).

4. The parties agreed that the abatement date and the amount of the penalty were not in issue. (See Note 1 of page 2 of respondent’s brief.)

5. The complainant failed to sufficiently inspect the respondent’s records so as to determine whether or not any item found on the OSHA 101 was missing, in any given specific case, from the record proffered by the respondent to the complainant as an alternative supplementary record (Tr. pages 22, 24, 25, 26).

6. At the close of the complainant’s case, the respondent moved to dismiss on the grounds that the complainant had not proved a prima facie case (Tr. page 26, et seq.).

Based on the aforementioned Findings of Fact and the entire record, the Judge makes the following

CONCLUSIONS OF LAW

1. At all times herein mentioned, this respondent was engaged in a business affecting commerce, within the meaning of section 3 (5) of the Occupational Safety and Health Act of 1970.

2. The complainant failed to sustain the burden of proof of violation of that standard found at 29 C.F.R. 1904.4.

In view of the foregoing, good cause appearing therefor, it is ORDERED that:

1. The motion of the respondent to dismiss the complainant’s citation and proposed penalty on the grounds that it had not proven a prima facie case as GRANTED.

2. The citation alleging a violation of that standard found at 29 C.F.R. 1904.4 is herewith VACATED.

3. The penalty proposed in the sum of $100.00 is similarly VACATED.

SO ORDERED.

David G. Oringer

Judge, OSAHRC

Dated: April 14, 1976