“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14090 GENERAL MOTORS CORPORATION, DELCO AIR CONDITIONING DIVISION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February16, 1977?ORDER??????????? TheRespondent has filed a Motion to Vacate the Direction for Review in theabove-captioned case. It is clear that the Respondent does not seekmodification or reversal of the Judge?s decision and, therefore, in accordancewith 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. McLaughlinExecutive SecretaryDated: FEB 16, 1977\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14090 GENERAL MOTORS CORPORATION, DELCO AIR CONDITIONING DIVISION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: May 14, 1976APPEARANCES:For the Complainant William E. Curphey, III, Trial Attorney; William J. Kilberg, Solicitor of Labor; Herman Grant, RegionalSolicitor; W. F. Kloepfer, Associate RegionalSolicitor U. S. Department of Labor 881 Federal Office Building 1240 East NinthStreet Cleveland, Ohio 44199\u00a0For the Respondent Russell J. Thomas, Jr.,Attorney General Motors Corporation 3044 West Grand Boulevard Detroit, Michigan48202?DECISION AND ORDEROringer,Judge:??????????? Thisis a proceeding under section 10(c) of the Occupational Safety and Health Actof 1970 (29 U.S.C. 651, et seq., hereinafter referred to as ?the Act?) toreview a citation alleging a non-serious violation of the standard found at 29C.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 assessmentof penalty thereon issued, in the sum of $100.00, both of which documents weredated June 16, 1975. The citation and notification of proposed penalty wereissued after an inspection by a representative of the complainant on May 27,1975, of the respondent?s work premises located in Moraine City, Ohio. Therespondent thereafter filed, with a representative of the complainant, a timelynotice of contest contesting the citation and proposed penalty.??????????? Thecomplainant 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. \u00a0The standard allegedly violated reads as follows:29 C.F.R. 1904.4 Supplementary record.In addition to the log of occupationalinjuries and illnesses provided for under ? 1904.2, each employer shall haveavailable for inspection at each establishment within 6 working days afterreceiving information that a recordable case has occurred, a supplementaryrecord for each occupational injury or illness for that establishment. Therecord shall be completed in the detail prescribed in the instructionsaccompanying Occupational Safety and Health Administration Form OSHA No. 101.Workmen?s compensation, insurance, or other reports are acceptable alternativerecords if they contain the information required by Form OSHO No. 101. If noacceptable alternative record is maintained for other purposes, Form OSHA No.101 shall be used or the necessary information shall be otherwise maintained.???????????? Therespondent, at the trial, did not contest the appropriateness of the abatementdate nor the amount of the penalty. (See Note No. 1 on page 2 of respondent?sbrief.) The sole issue remaining for decision is whether or not the standardconcerned herein was violated.OPINION??????????? At thecompletion by the complainant of his case in chief, the respondent moved todismiss the citation on the grounds that the government did not prove a primafacie case. This tribunal reserved ruling on the respondent?s motion. Therespondent rested its case without presenting any proof on the grounds that theSecretary had not made out a case.??????????? Thistribunal, while it modified its ruling and reserved on the motion, expressed anopinion at the time that, based on recollection, the complainant had proven aPrima facie case. After thoroughly examining and studying the transcript, webelieve that our recollection was erroneous and that the evidence of recordindicates that the Secretary failed to prove a prima facie case.??????????? Inorder for the complainant to prove a prima facie case, it must establish thatthere was a recordable injury that the respondent had a duty to include in asupplementary 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 page461, 462; Secretary v. Wayne Taysom & Eli Taysom, d\/b\/a TaysomConstruction Company, Docket No. 1141, 15 OSAHRC 506 at pages 515, 516,517.??????????? Whilethe cited cases are not identical to the one in question, the principle insofaras the quantum of proof that the Secretary needs remains the same. In thiscase, this tribunal is firmly convinced that there were injuries over the yearsthat OSHA is in effect, in this plant. In the case at bar, the respondent keepsa supplementary form, marked Exhibit No. 1, that was exhibited to thecompliance officer. The record evidence revealed that the compliance officer?smain complaint with the form is that it does not indicate the name of thephysician who treated the injured employee and, in addition thereto, thedetails of what the employee was doing when injured. The compliance officeralso complained that the name of the company was not on the form. He furthercomplained, on page 22 of the transcript, that the respondent?s form was not asspecific as that of the Secretary. He related that item 13 of the Secretary?sform reads, ?How did the accident occur?? and requires the employer to describefully the events that resulted in the injury or occupational illness. Inaddition, he complains that No. 12 of the Secretary?s form, which reads, ?Whatwas 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.??????????? Themajor deficiency in the Secretary?s case is that the complainant?s complianceofficer never determined that there was any one case where a physician actuallytreated the employee and whose name was lacking in the employer?s form, nor didhe determine that anyone was hospitalized and the name of hospital missing inthe employer?s form. He further did not delineate one case where a fulldescription was necessary.??????????? TheSecretary may well, upon proper investigation and review of the employer?sform, and inspection and investigation of any one or several cases, find thatitems 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 failedto establish such proof, this tribunal, in a search for proof of whether or notthe facts existed, searchingly examined the compliance officer and was not ableto establish any cases where the items, in fact, were proven missing. After thewitness complained that one of the items in which the employer was deficientwas the item requiring the name of the physician, he was asked, as follows, onpage 24 of the transcript:?The Court: So, did you find out whetherany were treated by a physician whose names were not on the report??The Witness: No, sir. Just my personalexperience 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 injuriesand they just don?t require any big attention, except maybe cleaning and smalldressing. This is, according to the Act, this doesn?t require any logging in.?The Court: I see. In other words, if aninjury is logged in, you would say that a physician is usually called??The Witness: Not necessarily. If it?srecordable, if it says it?s a recordable injury, to be treated by a physicianand nurse.???The Court: Well, why don?t you find out?In the instances that, in those cases the physician?s name is not on thereport, 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 yournotes help you??The Witness: I don?t recall making noteson the particular???Certainly, there was no case prove that a physician?sname was necessary or missing. Insofar as specific details, there is no proofin the record that the employee?s medical record would not have the specificdetails written in. Boxes do show areas where the accident may have happenedand what part of the body was injured. There is no proof that somewhere in thearea reserved for notes that the missing items would not be written in. Theonly way the Secretary could prove that the employer?s supplementary recordsare deficient is if he follows a report of a given injury and finds itemsmissing 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, orother reports are acceptable alternative records if they contain theinformation required by Form OSHA No. 101. If no acceptable alternative recordis maintained for other purposes, Form OSHA No. 101 shall be used or thenecessary information shall be otherwise maintained.????????????? Inorder to prove that the alternative record maintained by the respondent isdeficient, the government should at least be able to present one case whereinit was in fact deficient. In this case, the recollection of the government?switness was hazy and deficient insofar as the items are concerned and could notprove 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, ifthe government reenters the respondent?s workplace, and examines the records,and finds that the supplementary record is deficient in any of the itemscontained in the OSHA Form No. 101, he could not prove his case. All thistribunal is finding in the instant cause is that the Secretary has failed toadduce sufficient proof to sustain a violation on the evidence of record. Asfar as the complaint found on page 13 of the transcript that the employer?sname is not on the record, we find that a specious objection. Certainly, aninspecting compliance officer should know the name of the plant he is visiting.??????????? Thistribunal agrees with the government that details as to where and how theaccident happened, the name of the physician, and the name of the hospital, arenecessary items. They aid the administration inadducing facts that are necessary to determine matters seriously concerned withthe health and welfare of the employees at the plant. The failure here is todemonstrate that, in any given specific case, such items were missing on thealternative form maintained by the respondent. The witness testified, on page13 of the transcript, that in comparing the form with the Form OSHA No. 101 hebelieved there was something like ?7, 8, possibly 10, items that were notexactly 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 provendeficient inasmuch as no one case was pursued to see whether these items werein fact missing.??????????? Therecord further indicates the poverty of proof contained therein, on page 22 ofthe transcript. The record reads as follows:?The Court: Let me ask you this. Did youlook, when you looked at their records, did you look through the book ofrecords? Did you look through these records??The Witness: No, I did not, sir, as Irecall.????????????? Fromthe evidence of record, this tribunal cannot determine whether or not thealternative supplementary record maintained by the respondent contains all ofthe criteria demanded by the Secretary?s Form OSHA No. 101, because sufficientevidence is not contained in the record about any one case where items weremissing. Accordingly, the complainant has failed to prove a prima facie case,and the allegation of violation must fall.??????????? Havingheard the testimony and observed the demeanor of the witness, and havingconsidered the same, together with the citation, notification of proposedpenalty, notice of contest, pleadings, representations, stipulations, andadmission of the parties, the preponderance of credible evidence of recordsupports the followingFINDINGS OF FACT??????????? 1.The respondent employs approximately 1908 employees, in and about the workplacecomplained of herein. The said employees are engaged in the receipt andhandling of asbestos, rubber, steel, and other goods which have been shippedfrom states outside the State of Ohio, into Ohio, and produces and shipscompressors and valves, to points outside the State of Ohio. (Complaint andAnswer)??????????? 2. Asa result of an inspection by a representative of the complainant, therespondent was issued a citation on June 16, 1975, alleging one non-seriousviolation of the Act and a notification of proposed penalty. (Complaint andAnswer)??????????? 3. Atimely notice of contest was filed by the respondent to the citation andnotification of proposed penalty (Notice of Contest).??????????? 4.The parties agreed that the abatement date and the amount of the penalty werenot in issue. (See Note 1 of page 2 of respondent?s brief.)??????????? 5.The complainant failed to sufficiently inspect the respondent?s records so asto determine whether or not any item found on the OSHA 101 was missing, in anygiven specific case, from the record proffered by the respondent to thecomplainant as an alternative supplementary record (Tr. pages 22, 24, 25, 26).??????????? 6. Atthe close of the complainant?s case, the respondent moved to dismiss on thegrounds that the complainant had not proved a prima facie case (Tr. page 26, etseq.).??????????? Basedon the aforementioned Findings of Fact and the entire record, the Judge makesthe followingCONCLUSIONS OF LAW??????????? 1. Atall times herein mentioned, this respondent was engaged in a business affectingcommerce, within the meaning of section 3 (5) of the Occupational Safety andHealth Act of 1970.??????????? 2.The complainant failed to sustain the burden of proof of violation of thatstandard found at 29 C.F.R. 1904.4.??????????? Inview of the foregoing, good cause appearing therefor, it is ORDERED that:??????????? 1.The motion of the respondent to dismiss the complainant?s citation and proposedpenalty 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 isherewith VACATED.??????????? 3.The penalty proposed in the sum of $100.00 is similarly VACATED.?SOORDERED.?David G. OringerJudge, OSAHRCDated: April 14, 1976”