Brock v. Dow Chemical U.S.A.
| Decision Date | 16 September 1986 |
| Docket Number | Nos. 85-2541,85-2545,s. 85-2541 |
| Citation | 801 F.2d 926 |
| Parties | , 12 O.S.H. Cas.(BNA) 2135, 1986-1987 O.S.H.D. ( 27,690 William E. BROCK, Secretary of Labor, Petitioner, v. DOW CHEMICAL U.S.A., an Operating Unit of the Dow Chemical Co., a Corp. and Occupational Safety & Health Review Commission, Respondents. DOW CHEMICAL U.S.A., Petitioner, v. SECRETARY OF LABOR, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Sandra Lord, Dept. of Labor, Washington, D.C., for petitioner.
Robert Moran, Washington, D.C., for respondents.
Before CUDAHY and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
The Secretary of Labor ("Secretary") conducted a health inspection of the employer's facility. Following the inspection, the Secretary cited the employer for willfully failing to record cases of employee injury or illness. An Administrative Law Judge ("ALJ") found the employer liable for some incidents, but not others. The Secretary petitioned this court for enforcement, with modifications, of the ALJ's order, and the employer cross-petitioned for review. The primary question we will decide is whether the employer had fair notice of the incidents it allegedly failed to record. For the reasons stated below, we will grant the employer's petition for review, and deny the Secretary's, and hold that, as a matter of law, the pleadings and documents given the employer in discovery were insufficient to constitute formal notice. We will remand to the Secretary for a determination whether discussions between the Secretary and the employer, prior to and following the issuance of the citation, gave the employer actual notice of the incidents at issue.
The Occupational Safety and Health Act of 1970 ("Act"), codified as amended at 29 U.S.C. Secs. 651-678, requires the Secretary to "compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses, whether or not involving loss of time from work, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job." 29 U.S.C. Sec. 673(a); see also id. Secs. 657(g)(1), 673(e). Section 657(c)(2) provides that the Secretary (in cooperation with the Secretary of Health and Human Services) "shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on" such injuries and illnesses. In addition, Sec. 657(c)(1) requires "[e]ach employer ... [to] make, keep and preserve, and make available to the Secretary ..., such records regarding his activities relating to this chapter as the Secretary ..., may prescribe by regulation as necessary or appropriate for the enforcement of this chapter or for developing information regarding the causes and prevention of occupational accidents and illnesses."
The Secretary delegated authority to the Assistant Secretary of Labor for Occupational Safety and Health ("Assistant Secretary") to carry out the Department of Labor's safety and health programs. The Secretary also delegated authority to the Commissioner of the Bureau of Labor Statistics ("Commissioner") to develop a program of occupational safety and health statistics. 29 C.F.R. Sec. 1904.20(a); Sec.'s Order 12-71, 36 Fed.Reg. 8754 (1971); Sec.'s Order 8-76, 41 Fed.Reg. 25,059 (1976); Sec.'s Order 9-83, 48 Fed.Reg. 35,736 (1983). In 1971, the Secretary issued regulations governing recordkeeping and the reporting of occupational injuries and illnesses under the Act. 29 C.F.R. Secs. 1904.1-1904.22. Amendments to these regulations were subsequently issued by the Assistant Secretary and the Commissioner.
29 C.F.R. Sec. 1904.2(a) requires employers to 29 C.F.R. Sec. 1904.12(c) defines "recordable occupational injuries or illnesses" as "any occupational injuries or illnesses which result in":
(1) Fatalities, regardless of the time between the injury and death, or the length of the illness; or
(2) Lost workday cases, other than fatalities, that result in lost workdays; or
(3) Nonfatal cases without lost workdays which result in transfer to another job or termination of employment, or require medical treatment (other than first aid) or involve: loss of consciousness or restriction of work or motion. This category also includes any diagnosed occupational illnesses which are reported to the employer but are not classified as fatalities or lost workday cases.
29 C.F.R. Sec. 1904.12(e) defines "first aid" as:
[A]ny one-time treatment, and any followup visit for the purpose of observation, of minor scratches, cuts, burns, splinters, and so forth, which do not ordinarily require medical care. Such one-time treatment, and followup visit for the purpose of observation, is considered first aid even though provided by a physician or registered professional personnel.
On January 31, 1984, pursuant to authority granted the Secretary under 29 U.S.C. Sec. 657(a) and (c), an OSHA compliance officer conducted an inspection of Dow Chemical's ("Dow") facility at Joliet, Illinois. The compliance officer requested that Dow produce copies of its Form 200 reports for the years 1981-1983. Upon examining these forms, the officer discovered that Dow had reported no occupational injuries or illnesses during that period. Dow then produced, at the officer's request, copies of its internal record keeping forms used for workmen's compensation claims. The compliance officer concluded that these documents indicated that a number of those injury incidents were "recordable" within the meaning of the Act. At a conference following the inspection, the officer discussed some, or perhaps all, of these incidents with Dow.
On March 26, 1984, the Secretary, pursuant to 29 U.S.C. Sec. 658(a), cited Dow for willfully failing, in violation of 29 C.F.R. Sec. 1904.2, to record injury and illness cases. The citation did not list the individual incidents that the Secretary contended should have been recorded. Dow contested the citation, whereupon the Secretary, pursuant to 29 U.S.C. Sec. 659(c), advised the Occupational Safety and Health Review Commission ("Commission") of the dispute. On May 9, 1984, Dow received a copy of the Secretary's complaint. Like the citation, the complaint also did not list any particular cases. A hearing was held before an ALJ on December 17 and 18, 1984. The ALJ, in his order and decision of June 5, 1985, found that, of the fifteen incidents presented by the Secretary at the hearing, four were recordable within the meaning of the Act and eleven were not. The ALJ also found that the evidence of record was insufficient to support the charge that Dow had acted willfully in not recording the four incidents. He ordered Dow to pay a penalty of $100.00. Both parties filed petitions for review with the Commission. The Commission adopted the ALJ's order as the final order of the Secretary on July 12, 1985. The Secretary's petition for enforcement, with modification, 1 and Dow's petition for review followed.
The citation issued by the Secretary against Dow read in relevant part:
The violations described in this citation are alleged to have occurred on or about the day the inspection was made unless otherwise indicated within the description given below.
29 CFR 1904.2(a): The log and summary of occupational injuries and illnesses (OSHA Form No. 200 or its equivalent) was not completed in the detail provided in the form and the instructions contained therein:
(a) OSHA recordable injury and illness cases were not entered onto the OSHA 200 as required.
Dow argues (1) that the citation did not satisfy the requirement of 29 U.S.C. Sec. 658(a) that "[e]ach citation ... shall describe with particularity the nature of the violation" (emphasis added) and (2) that neither the subsequent pleadings or discovery documents, nor discussions between Dow and the Secretary both before and after the issuance of the citation, afforded Dow "fair notice" of the specific incidents that the Secretary deemed recordable or the reasons why the Secretary thought they should have been recorded.
The Secretary contends that, because the disputed injury cases had been individually discussed with Dow during the opening and closing conferences following the Secretary's on-site inspection, and once again at a conference, held at Dow's request, subsequent to the issuance of the citation, Dow had actual notice of the disputed incidents. In addition, the Secretary argues that specific incidents were noted both on documents that the Secretary delivered to Dow in June of 1984 (in response to Dow's request for documents) and in interrogatories propounded by the Secretary on November 19, 1984 (but denied by the ALJ). Finally, the Secretary observed that particular cases were referred to in the subpoena duces tecum that the Secretary served on Dow on December 10, 1984, and in the Secretary's responses to Dow's request for admissions. These responses were served on Dow on December 14, 1984, the first day of the two-day hearing before the ALJ. The Secretary concludes that "Dow had ample notice of the particular injuries at issue in order to adequately prepare and present its defense." Reply Brief at 4.
It is, of course, well settled that administrative pleadings are to be liberally construed and amended. Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 585 (D.C.Cir.1985); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C.Cir.1973); NLRB v. International Union of Operating...
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