Kaspar Wire Works v. Secretary of Labor

• Decision Date: 06 November 2001
• Docket Number: No. 00-1392,00-1392
• Parties: (D.C. Cir. 2001) Kaspar Wire Works, Inc., Petitioner v. Secretary of Labor, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1123

268 F.3d 1123 (D.C. Cir. 2001)

Kaspar Wire Works, Inc., Petitioner v. Secretary of Labor, Respondent

No. 00-1392

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2001

Decided November 6, 2001

[Copyrighted Material Omitted]

On Petition for Review of an Order of the Occupational Safety and Health Review Commission

Vic H. Henry argued the cause and filed the briefs for petitioner.

John Shortall, Attorney, U.S. Department of Labor, argued the cause for respondent. With him on the brief were Joseph M. Woodward, Associate Solicitor, and Bruce F. Justh, Counsel.

Before: Henderson, Randolph and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge:

Kaspar Wire Works, Inc. petitions for review of the decision of the Occupational Safety and Health Review Commission holding it responsible for hundreds of willful violations of the Occupational Health and Safety Act, 29 U.S.C. §§ 651-678 (1990), and imposing penalties for each violation. Kaspar Wire contends that the decision must be reversed for lack of substantial evidence to support the findings of willfulness, and because the per instance penalties are unlawful. We deny the petition.

I.

Kaspar Wire Works, Inc. is a manufacturer of custom wire products and newspaper racks located in Shiner, Texas. Between 1982 and 1989, the Occupational Safety and Health Administration ("OSHA") conducted inspections and issued no citations for injury and illness recordkeeping violations. However, following a six-month inspection by nine OSHA inspectors in 1990, the Secretary of Labor issued two citations against Kaspar Wire for over 400 alleged willful and serious violations of various standards under the Act, proposing aggregate penalties of $1,236,000. An Administrative Law Judge found that 382 violations were willful and assessed an aggregate penalty of $257,700.

The Occupational Safety and Health Commission affirmed the findings of willfulness and the assessment of per-instance penalties for most of the recordkeeping violations, resulting in an aggregate penalty of $224,050. The Commission relied on evidence that the same personnel had been responsible for recording serious injuries and illnesses at Kaspar Wire since 1970, that Kaspar Wire had properly reported such incidents in the past, as reflected in the results of OSHA inspections from 1982-89, and that OSHA's 1990 inspection revealed that Kaspar Wire failed to record 357 injuries on form OSHA No. 200, comprising 86.5% of the injuries and illnesses that occurred in its facility during 1988 and 1989. Included among the unreported injuries were secondand third-degree burns, a hand ligament injury resulting in 171 lost work days, at least eight finger amputations (including one employee who lost three fingers and lost eight weeks of work and another employee who lost two fingers and lost nine weeks of work), several broken bones, more than 30 eye injuries, and hundreds of lacerations--all of which were only recorded on Kaspar Wire's first-aid log. The Commission concluded that these were knowing and willful violations that reflected a "profound[ ] change[ ]" in Kaspar Wire's recordkeeping practices. One Commission member dissented on the ground that the evidence did not support a finding of willfulness, but only carelessness. The Commission reversed the Administrative Law Judge's finding of willfulness with respect to errors in Kaspar Wire's restricted work day recording, because it had never recorded such items and had never been cited by OSHA for such failures in the past.

II.

At the time of the citations in question, the Occupational Health and Safety Act ("the Act") provided that "Any employer who willfully or repeatedly violates the requirements of ... regulations prescribed pursuant to this chapter, may be assessed a civil penalty of not more than $10,000 for each violation." 29 U.S.C. 666(a) (1990).¹ The Act further provided:

Each employer shall make, keep and preserve, and make available to the Secretary [of Labor] or the Secretary of Health and Human Services, such records regarding his activities relating to this chapter as the Secretary [of Labor], in cooperation with the Secretary of Health and Human Services, 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.... Id. 657(c)(1). The OSHA recordkeeping regulations require an employer to:

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

29 C.F.R. 1904.2(a) (2000). The regulation further specifies that "[f]or this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensive to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200." Id. "Recordable" is defined in the regulations to mean:

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.

Id. 1904.12(c). The Commission views the recordkeeping requirements as "play[ing] a crucial role in providing the information necessary to make workplaces safer and healthier." General Motors Corp., Inland Div., 8 O.S.H. Cas. (BNA) 2036 (1980).

Kaspar Wire did not argue either to the Commission or to the court that its first aid log qualified as an "equivalent" to OSHA form No. 200. Rather, Kaspar Wire admitted in its brief and at oral argument that it did not comply with OSHA recordkeeping requirements. For three reasons it contends, however, that there is no basis for the Commission's finding that its violations were willful. First, its recordkeeping personnel were trained by OSHA staff in 1971, and over the years OSHA inspectors repeatedly reviewed its practices without ever citing Kaspar Wire for a recordkeeping violation until the 1990 inspection. Second, an OSHA inspector testified that it was reasonable for Kaspar Wire to assume that its recordkeeping practices were in compliance with OSHA regulations. Third, there is no record evidence that Kaspar Wire changed its recordkeeping practices at some point in the 1980s. Kaspar Wire concludes, therefore, that its reasonable reliance precludes a finding of willfulness.

Neither the Act nor the OSHA regulations define the meaning of the term "willful." This circuit has defined a "willful violation" in the OSHA context as "an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act's requirements." Conie Construction, Inc. v. Reich, 73 F.3d 382, 384 (D.C. Cir. 1995). The Commission relied on the Fifth Circuit's virtually identical definition of a "willful violation" as "one involving voluntary action, done with either an intentional disregard of, or plain indifference to, the requirements of the [OSHA] statute." Georgia Elec. Co. v. Marshall, 595 F.2d 309, 319 (5th Cir. 1979). Under either definition, actual malice is not required; it is sufficient that there be substantial evidence of voluntary and intentional disregard for or indifference to the law. See Conie, 73 F.3d at 384; Georgia Elec., 595 F.2d at 318-19. Consistent with our standard of review, see National Eng'g & Contracting Co. v. OSHRC, 45 F.3d 476, 481 (D.C. Cir. 1995), we conclude that there was substantial evidence to support the Commission's finding of willfulness.

Contrary to Kaspar Wire's position, the fact that the same recordkeeping personnel who had been trained by OSHA staff were still in charge in 1988 and 1989 actually supports the Commission's conclusion that Kaspar Wire knowingly and voluntarily chose to flout the recordkeeping requirements. That is, Kaspar Wire could have no doubt about what the regulations required. Kaspar Wire points to testimony by one OSHA inspector that inspections conducted between 1982 and 1989 indicated that Kaspar Wire was complying with OSHA's recordkeeping requirements, and that if Kaspar Wire's recordkeeping practices remained unchanged it could reasonably assume in March 1990 that its practices conformed to OSHA standards. Another inspector testified that in his view Kaspar Wire's recordkeeping practices had not changed over time. However, "the Commission is not bound by the representations or interpretations of OSHA Compliance Officers." L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 676 (D.C. Cir. 1982). Further, two other OSHA inspectors testified that based on the 1990 inspection, Kaspar Wire had clearly and intentionally violated the recordkeeping requirements of the statute, see 29 U.S.C. 657(c)(1), and that the Department of Labor's Bureau of Labor Statistics had independently confirmed that all of the injuries in question should have been recorded on OSHA form No. 200.

From this evidence, the Commission could reasonably infer, see United States Testing Co., Inc. v. NLRB, 160 F.3d 14, 19 (D.C. Cir. 1998), that sometime prior to 1988, Kaspar Wire's recordkeeping practices underwent a dramatic change that was not explainable by changes in the number of persons it employed. As the Commission found,...