“SECRETARY OF LABOR,\t Complainant\t v.\tOSHRC Docket No. 00-2231JINDAL UNITED STEEL CORP, and it?s successors,\t Respondent.\t APPEARANCES:Gary K. Stearman, Attorney; Michael P. Doyle, Counsel for AppellateLitigation; Joseph M. Woodward, Associate Solicitor for OccupationalSafety and Health; Gregory F. Jacob, Deputy Solicitor of Labor; HowardM. Radzely, Solicitor of Labor; U.S. Department of Labor, Washington, DCFor the Complainant Thomas H. Wilson, Esq. and Sean M. Becker, Esq.; Vinson &Elkins, LLP., Houston, Texas For the Respondent REMAND ORDERBefore: THOMPSON, Chairman; ROGERS, Commissioner.BY THE COMMISSION: This case is before the Commission on remand from the UnitedStates Court of Appeals for the Fifth Circuit. \/Chao v. OccupationalSafety & Health Review Comm?n\/, 480 F.3d 320 (5th Cir. 2007). The courtreviewed the decision of Administrative Law Judge James H. Barkley,which became a final order of the Commission when the two then-sittingcommissioners reached an impasse regarding the case?s disposition and,therefore, agreed to vacate the Commission?s direction for review.\/Jindal United Steel Corp.\/, 21 BNA OSHC 1298 (No. 00-2231, 2005). Onappeal, the court vacated the judge?s penalty assessment, finding thathe erroneously grouped separate willful violations and assessed a singlegrouped penalty below the statutory range mandated by section 17(a) ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ? 666(a).By mandate dated May 9, 2007, the court ordered the judge?s decisionvacated and remanded ?for further proceedings in accordance with theopinion of th[e] court.? Accordingly, we hereby remand this case to thejudge for further proceedings consistent with the court?s opinion. SO ORDERED. \/s\/ HoraceA. Thompson III Chairman \/s\/ ThomasinaV. Rogers Commissioner Dated:August 16, 2007 ———————————————————————— SECRETARY OF LABORComplainant\t v.\tOSHRC Docket No. 00-2231Jindal United Steel Corp., and it?s sucessors\t Respondent\t DECISIONBefore: RAILTON, Chairman; and ROGERS, Commissioner. The Occupational Safety and Health Administration(?OSHA?)inspected Jindal United Steel Corporation?s (?Jindal?) manufacturingfacility in Baytown, Texas from May 10, 2000 until October 19, 2000. TheSecretary cited Jindal for numerous alleged willful and seriousviolations of various standards under the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-687 (?OSH Act? or ?Act?). The partiesresolved, by settlement agreement and joint stipulation, all of thecitations except certain items pertaining to Jindal?s alleged failure toproperly record occupational illnesses and injuries in violation of 29C.F.R. ? 1904.2(a).^Footnote The Secretary citedthe recordkeeping violations as willful on a per-instance basis, andproposed a penalty of $9,000 for each of the violations. AdministrativeLaw Judge James H. Barkley affirmed 110 separate recordkeepingviolations, but grouped them for penalty purposes, assessing a singlepenalty of $70,000 for the eighty-two items he affirmed as willful, and$7,000 for the twenty-eight items he affirmed as other-than-serious. On review, Jindal contests only the characterization of theeighty-two citations that the judge affirmed as willful, and argues forlower penalties. The Secretary argues that all of the violations werewillful and challenges the judge?s penalty grouping. The two Commissionmembers would affirm the judge?s characterization of the eighty-twowillful violations, but are divided as to the characterization of theremaining twenty-eight violations and the appropriate penalty assessmentfor the willful violations.Official action of the Commission requires the affirmative vote of twomembers on all dispositive issues. OSH Act, ? 12(f), 29 U.S.C. ? 661(e).In view of the absence of such agreement here and to resolve thisimpasse, the Commission members agree to vacate the direction forreview, thereby allowing the judge?s Decision and Order to become thefinal appealable order of the Commission with the precedential value ofan unreviewed judge?s decision.^Footnote \/See e.g.\/, \/TheTimken Co.\/, 20 BNA OSHC 2034 (No. 97-1457, 2004), and cases therecited. \/See also\/ sections 10(c), 11(a) and (b), and 12(j) of the Act,29 U.S.C. ?? 659(c), 660(a) and (b), and 661(i). Accordingly, thedirection for review is hereby vacated. The separate views of the twoCommission members follow. SO ORDERED. \/s\/ W.Scott Railton Chairman \/s\/ ThomasinaV. Rogers Commissioner Dated: September 28, 2005 I. The characterization of Jindal?s recordkeeping violationsJindal commenced operation in 1997 at a former USX steel facility whereit operates the plate mill portion of a steel manufacturing business.Jindal shares the business with Saw Pipes USA, Inc., a related companylocated at the same facility that manufactures steel pipe.^Footnote The two companiesshare some common ownership and some managerial personnel. On review,Jindal does not dispute that it failed to properly record 74% of therecordable illnesses and injuries on its OSHA 200 log in 1998, 84% in1999, and 53% for the first half of 2000. Having thoroughly reviewed therecord in this case, Chairman Railton and Commissioner Rogers agree thatthe judge?s factual findings are fully supported by the testimony andevidence. In addition, they would agree with the judge, for the reasonshe articulated, that the recordkeeping errors attributable to employeesCraig Wetherington and Lisa White were willful.As the Commission stated in \/Kaspar Wire Works, Inc.\/, ?[t]he hallmarkof a willful violation is the employer?s state of mind at the time ofthe violation ? an ?intentional, knowing, or voluntary disregard for therequirements of the Act or . . . plain indifference to employeesafety.?? 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000) (citation omitted),\/aff?d\/, 268 F.3d 1123 (D.C. Cir. 2001). ?[T]he Secretary must show thatthe employer acted voluntarily, with either intentional disregard of orplain indifference to OSHA requirements.? \/Georgia Elec. Co. v.Marshall\/, 595 F.2d 309, 317-319 (5th Cir. 1979). \/Accord AJP Constr.Inc. v. Secretary\/, 357 F.3d 70, 74 (D.C. Cir. 2004). Here, the evidenceshows that Jindal managerial personnel intentionally implementedrecordkeeping practices that they knew were incorrect. Gary Jones, humanresources and labor relations director for Saw Pipes who hired andsupervised Jindal recordkeeper Craig Wetherington, was the architect ofJindal?s recordkeeping program. Despite Wetherington?s repeatedprotests, Jones instructed Wetherington to record on the OSHA 200 onlythose injuries reported to workers? compensation, which excludedinjuries for which Jindal absorbed the cost of an employee?s lost worktime and medical treatment. He also instructed that Jindal would notrecord on its OSHA log the injuries and illnesses of the temporarylaborers who worked at the plant. Wetherington advised Jones that theserecordkeeping practices were not consistent with his prior experience orwith OSHA published recordkeeping guidelines, and that following themwould leave ?the company wide open for problems with OSHA and otherpeople.? According to Wetherington, Jones rejected his concerns and toldhim that if he could not comply with Jones? instructions ?there?s thedoor.?^Footnote Wetherington complained about Jones? recordkeeping practices to Jindalhuman resources manager Lisa White and plant manager Doug Gates, but tono avail. Gates told Wetherington that Jones ?is the one that?s runningthe program. It?s his way.? Similarly, White stated that Jones ?had thefinal word on that. We have to go by what he says, period.? Wetheringtontestified that when he told Gates that by following Jones? instructionshe was failing to comply with OSHA recordkeeping requirements, Gatesrecommended that he protect himself by writing a memorandum to thateffect. White corroborated Wetherington, testifying that Wetherington?had approached both myself and Doug Gates with his concerns. Hisconcerns were that he was being directed to do this by his supervisor;however, he knew that this was a violation of the recordkeepingrequirements, but he needed his job and he was fearful that if he didnot do as instructed, he might lose his job. So it was Doug Gates and myrecommendation to go ahead and just note that to the file so that hewould have a cover for himself should anything ever arise.?White also echoed Wetherington?s concerns, testifying that she was?afraid that subsequently if OSHA were to come in and do a recordkeepingaudit or any kind of another audit on us, that we would be exposed togreat citations from that.? Nonetheless, when White briefly assumedresponsibility for completing Jindal?s OSHA logs followingWetherington?s resignation, she chose to continue the establishedrecordkeeping practices, admitting that she knowingly failed to properlyrecord injuries at that time. In these circumstances, Chairman Railtonand Commissioner Rogers fully agree with the judge?s conclusion thatJindal intentionally disregarded its recordkeeping responsibilities inwillful violation of the Act for the errors attributable to employeesCraig Wetherington and Lisa White. \/AJP Constr. Inc. v. Secretary\/, 357F.3d at 74 (affirming willful violation where employer knew ofstandards? requirements and had notice of deficiencies in compliance).David McIntosh succeeded Craig Wetherington as Jindal safety manager, aposition he held from November 8, 1999 until June 26, 2000. AlthoughJindal never expressly assigned to McIntosh the responsibility formaintaining the OSHA 200 logs, McIntosh voluntarily relieved Lisa Whiteof the task when he became concerned about the approaching Februaryposting deadline. During McIntosh?s tenure, there were twenty-eightrecordkeeping errors on Jindal?s OSHA 200 log.For the following reasons, Chairman Railton agrees with the judge thatthese violations were not willful. McIntosh noticed that Jindal had beenerroneously neglecting to report the occupational injuries not submittedfor workers? compensation. He testified, however, that he did not followJones? ?unwritten? policies, nor did he consciously fail to record areportable injury. While McIntosh did fail to record some of theinjuries that occurred in the first half of 2000, there was a markedimprovement over the 84% error rate of the previous year. McIntoshattributed his errors to lack of adequate time and information, and theSecretary has provided no basis from which to conclude that they werepurposeful. Based on this evidence, Chairman Railton would find thatMcIntosh?s decision to reject the prior recordkeeping policies andtransform Jindal?s program showed that his errors were merely negligent.\/See American Wrecking Corp. v. Secretary\/, 351 F.3d 1254, 1264 (D.C.Cir. 2003) (finding ?mere negligence? insufficient to establishwillfulness).Chairman Railton would also reject the Secretary?s contention thatJindal management?s ?failure to inquire whether Wetherington and White?sconcerns were justified after McIntosh became safety manager . . .demonstrated plain indifference.? In his view, although insufficient tobring Jindal fully into compliance, McIntosh?s efforts transformedJindal?s recordkeeping practices, negating Jones? abject disregard forOSHA?s recordkeeping requirements that Gates and White never endorsed.\/Compare\/ \/Caterpillar, Inc\/., 17 BNA OSHC 1731, 1732 (No. 93-373,1996), \/aff?d\/, 122 F.3d 437, 440-41 (7th Cir. 1997) (affirming willfulviolation despite change in personnel where violation recurred inotherwise unchanged circumstances). Accordingly, Chairman Railton wouldaffirm the judge?s characterization of these twenty-eight recordkeepingviolations as other-than-serious.On the other hand, Commissioner Rogers would affirm the additionaltwenty-eight recordkeeping violations as willful. Jindal explicitlyhired David McIntosh to replace Craig Wetherington as safety manager.McIntosh took up residence in Wetherington?s former office anddetermined his job duties from a review of Wetherington?s files. Thosefiles enabled McIntosh to determine ?what Craig had done out there,? andincluded accident reports and incomplete OSHA logs. Based on McIntosh?sown description of his orientation to the safety manager position atJindal, management never instructed him in any of the particularrequirements of his job. Rather, he was left to divine the job?sdimensions based on what his predecessor had done. In thesecircumstances, McIntosh?s denial of responsibility for the OSHA 200?s,because ?it was never designated as [his],? is contradictory anddisingenuous. Moreover, despite McIntosh?s claim that he did not followJones? unwritten policies and never consciously failed to record areportable event, McIntosh admitted that there were injuries reported tohim that he believed should have been recorded on the OSHA 200s, that hedid not record. In view of McIntosh?s demonstrated knowledge ofrecordkeeping requirements, which was sufficient to inform his rejectionof Jones? erroneous guidelines, Commissioner Rogers would find that hisknowing failure to properly record injuries and illnesses demonstratesconscious disregard for the requirements of the Act.Commissioner Rogers also disagrees that McIntosh?s recordkeepingefforts, designed to ?just [] try to keep us covered in case somethinglike this [OSHA inspection] did happen,? transformed Jindal?sintentional disregard for OSHA recordkeeping into mere negligence.Jindal managers White and Gates permitted Jones to direct Jindalpersonnel to incorrectly record injuries and illnesses. After McIntoshreplaced Wetherington, these same managers did nothing to dismantle theviolative recordkeeping practices and policies that prevailed at theplant, nor did they convey to McIntosh precisely what was expected ofhim. Jindal cannot escape willfulness merely by allowing violativepractices of which it was aware to continue, notwithstanding the changeof recordkeepers. McIntosh?s modest efforts cannot cure Jindal?s failureto inform its new safety manager of the ?pervasive and continuingnature? of the recordkeeping problem and instruct him in the correctprocedures. \/See\/ \/Caterpillar, Inc\/., 17 BNA OSHC at 1732-33 (affirmingwillful violation where corporation failed to convey to new supervisors?relevant and available information it possessed and which, under theAct, it was responsible for disseminating to those entrusted with thehealth and safety of its employees?). Accordingly, Commissioner Rogerswould affirm all 110 of Jindal?s recordkeeping violations as willful.II. PenaltiesThe judge affirmed 110 separate violations for Jindal?s 110recordkeeping errors, which the Secretary had cited on a per-instancebasis and which the parties do not contest on review. With respect tothe penalties, however, the judge rejected the Secretary?s proposal of$9,000 for each willful violation and, instead, assessed a singlegrouped penalty of $70,000. On review, the Secretary challenges thepropriety of the judge?s grouping of the willful violations and penaltyassessment. Chairman Railton?s ViewsThe Secretary?s citation and penalty policy invoked here is guided by astrategy of compliance inducement through enhanced penalties in casesdeemed ?egregious\/willful.? Pursuant to this policy, in cases involvingwillful violations that meet other specified criteria, the Secretaryconsiders departing from her usual practice of issuing a single citationand single proposed penalty for all alleged violations of the samestandard or regulation. Where applied, the Secretary, instead, alleges aseparate violation and proposes a separate penalty for each instance ofnoncompliance. \/See\/ OSHA Instruction CPL 2.80, \/Handling of Cases to beProposed for Violation-by-Violation of Penalties,\/ 1 BNA OSHR Ref. File21:9649, 9650 (October 1, 1990). The Secretary may issue per-instance citations where supported by thelanguage of the standard and where the record establishes the factssufficient to support each alleged violation. \/Chao v. OSHRC (Eric K.Ho)\/, 401 F.3d 355 (5th Cir. 2005) (concluding that standard ?can beinterpreted to allow for citation on a per-employee basis? but notingabsence of ?employee-specific unique circumstances that could meritcitation based on each failure to train an individual employee?).Recordkeeping citations based on separate and distinct recording errorsmeet those criteria. \/E.g., Caterpillar, Inc., \/15 BNA OSHC 2153,2170-71 (No. 87-922, 1993).Where the cited provision is found susceptible to per-instance citation,the Commission has generally also assessed individual penalties.However, as we recently stated in \/Eric K. Ho\/, ?[t]he Commission hastaken several steps on the road to assessing individual penalties forper-instance violations[,]? and the law in this area is ?stilldeveloping.? 20 BNA OSHC 1361, 1370 (No. 98-1645, 2003) (consolidated),\/aff?d, \/401 F.3d 355 (5th Cir. 2005). In Chairman Railton?s view, thiscase compels the Commission to further define the basis upon which itwill determine the ?appropriate? penalty assessment in cases cited underthe egregious\/willful policy. \/See \/OSH Act, section 17(j).In this regard, Chairman Railton notes that the Secretary?s decision toinvoke the egregious policy to propose separate penalties is made beforean evidentiary record is compiled. In contrast, the Commission?sdecision to assess penalties is based upon the evidence adduced in therecord as a whole following an evidentiary hearing. \/See Hern Iron WorksInc.\/, 16 BNA OSHC 1619, 1623 (No. 88-1962, 1994) (?evaluation of . . .penalty factors are issues of fact, the resolution of which is theexclusive province of the Commission?). As the reviewing body within theadministrative process, the Commission is best able to determine whetherthe grounds upon which the penalties were proposed warrant applicationof the egregious policy at the penalty assessment stage. \/See, e.g.,Butz et al v. Glover Livestock Comm?n\/, 411 U.S. 182 (1973).Accordingly, the Commission must evaluate whether the record evidence issufficient to satisfy the egregious\/willful criteria in determiningwhether to assess separate penalties for per-instance citations. Todate, the Commission has never addressed the obvious gap between theSecretary?s policy and evidentiary insufficiency. Such a reasoned stepmust be taken to ensure that the evaluation of penalty factors (issuesof fact) remain the exclusive province of the Commission.Under the Secretary?s seven-factor test, per-instance penalties may beproposed when the cited violations are willful \/and\/ egregious, in thatthey are particularly high gravity or the employer showed significantbad faith. The first factor plus one of the other six are required tosupport a recommendation for per-instance citations and penalties. Thecriteria are (1) the elements of a willful characterization; (2) aworker fatality, other catastrophe, or high number ofinjuries\/illnesses; (3) persistently high injury\/illness rates; (4)extensive history of prior violations; (5) intentional disregard ofsafety and health responsibilities; (6) clear bad faith; and (7) such alarge number of violations so as to significantly undermine any safetyand health program. Of course, these elements are already subsumedwithin the four statutorily prescribed factors upon which the Commissiondetermines the appropriate penalty under section 17(j).Chairman Railton would find that the evidence here is insufficient tojustify per- instance penalties under the Secretary?s test. The judgefound that the evidence established that the violations were willful,and that Jindal intentionally disregarded its recordkeepingresponsibilities. As the essential basis of the willfulcharacterization, however, the ?intentional disregard? factor here isthoroughly redundant and, as such, cannot satisfy the ?plus one?requirement of the Secretary?s seven-factor test. In the absence of anyother indicia of bad faith, and because the violations are ofparticularly \/low\/ gravity, application of the violation-by-violationpenalty policy is not merited.With respect to the $5,000 minimum willful penalty contained in theOmnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, ? 3101(1990), Chairman Railton would note that the amendments are not thestraitjacket that the Secretary would aver, either for the Commission orfor the Secretary herself. Although the Secretary contends that it wouldbe ?clear error? to assess a penalty that is less than the ?statutoryminimum? for each willful violation, Congress intended some flexibilityin applying the new penalty structure. As the House Conference Reportstates, ?[t]he conferees d[id] not intend to deprive [OSHA] of theflexibility to settle cases involving willful violations, \/whereappropriate\/, for amounts which are less than the mandatory minimums.?h.r. conf. rep. no. 101-964, \/reprinted in\/ 1990 \/U.S.C.C.A.N.\/ 2374,2393-94 (emphasis added).The ?appropriateness? benchmark identified in the committee report isidentical to that which the Commission also must satisfy in exercisingits penalty-setting authority pursuant to section 17(j). A total penaltyhere consisting of $5,000 for each of the eighty-two violations affirmedas willful would amount to $410,000. That is an extraordinary andunprecedented sum for even the largest and most egregious ofrecordkeeping cases. These circumstances raise the question whether,under the Secretary?s approach, there would be any limit to the totalpenalty for cases involving large numbers of willful recordkeepingerrors. The Commission has long cautioned against such a result,emphasizing that:The key question for penalty purposes is not how many errors oromissions there [are], but what penalty is appropriate. Thus, althoughthe Secretary may cite separate omissions to record injuries as separateviolations, he may not exact a total penalty that is inappropriate inlight of the four factors listed in section 17(j) of the Act: thegravity of the violations, the employer?s good faith, its size, and itshistory of violations. \/Caterpillar, \/15 BNA OSHC at 2173.In his application of the 17(j) factors here, the judge properlyconsidered Jindal?s size of 250 employees, the lack of prior OSHAinspections, and ?deliberate nature of the violations.? Followingwell-settled precedent, he focused on the gravity of the violations asthe most significant consideration in assessing the penalty. \/Chao v.OSHRC (Erik K. Ho)\/, 401 F.3d at 376, and cases there cited. Gravitygenerally includes a number of factors, including the number ofemployees exposed to the hazard, the duration of their exposure, theprecautions taken to prevent injury, and the degree of probability thatan injury would occur. \/E.g\/. \/Kus-Tum Builders, Inc.\/, 10 BNA OSHC1128, 1132 (No. 76-2644, 1981). The Commission has long held, however,that recordkeeping violations are of low gravity. \/See Caterpillar\/, 15BNA OSHC at 2178; \/Pepperidge Farm, Inc\/., 17 BNA OSHC 1993, 2001 (No.89-0265, 1997); \/Kaspar\/, 18 BNA OSHC at 2185. Based on the record evidence, Chairman Railton agrees that in additionto the low gravity of recordkeeping violations in general, the injuriesand illnesses that went unrecorded here were relatively minor. As thejudge stated, ?[e]ven under the Secretary?s theory of the case,Respondent reported major injuries to Workers? Compensation as well asto OSHA while only the more marginal, or less serious injuries wentunreported.? Accordingly, based on all of the section 17(j) factors,Chairman Railton would affirm the judge?s penalty assessment of a singlegrouped penalty of $70,000 for Jindal?s eighty-two willful recordkeepingviolations.Commissioner Rogers? ViewsIt is undisputed that the judge correctly affirmed separate violationsfor each of Jindal?s separately cited recordkeeping errors, and hisrulings to that effect are not on review. \/Eric K. Ho\/, 20 BNA OSHC at1370; \/Kaspar Wire Works, Inc.,\/ 18 BNA OSHC at 2185; \/Caterpillar,Inc., \/15 BNA OSHC at 2173. Both commissioners also agree that therecord evidence and applicable law support the judge?s characterizationof the eighty-two recordkeeping violations he affirmed as willful.Commissioner Rogers believes, however, that the assessment of a single$70,000 penalty for the eighty-two affirmed willful violations isprecluded by the OSH Act?s penalty provisions. Rather, once having foundeighty-two separate willful violations, the Commission \/must\/ assess apenalty of at least $5,000 for each such violation.As originally passed, the OSH Act provided that an employer ?may beassessed? a maximum $10,000 penalty for ?each [willful] violation.? 29U.S.C. ? 666(a). Unlike the provision pertaining to serious violations,which prescribed that a penalty of up to $1,000 ?\/shall\/ be assessed[,]?there was no minimum penalty required for a willful violation. 29 U.S.C.? 666(b) (emphasis added). In 1990, Congress revised the OSH Act?spenalty provisions by increasing the penalty amounts for all violationsseven-fold, and establishing a minimum penalty for willful violations asfollows.Any employer who willfully or repeatedly violates the requirements ofsection 654 of this title, any standard, rule or order promulgatedpursuant to section 655 of this title, or regulations prescribedpursuant to this chapter, may be assessed a civil penalty of not morethan $70,000 for each violation, \/but not less than $5,000 for eachwillful violation.\/ Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, ? 3101(1990), 29 U.S.C. ? 666(a) (emphasis added). Accordingly, this casepresents, for the first time, the question whether the Commission maynow assess an aggregate penalty for multiple affirmed violations thatamounts to less than $5,000 for ?each [willful] violation.?The fundamental principle of statutory construction is that statutorylanguage is to be construed according to its plain meaning. \/Caminettiv. United States\/, 242 U.S. 470, 485 (1917). When the language is plain,? ?the sole function of the courts . . . is to enforce it according toits terms? ? unless the result would be ?absurd.? \/Hartford Underwritersv. Union Planters\/, 530 U.S. 1, 6 (2000) (citations omitted). Thus, thefirst step in statutory construction is the wording of the statuteitself which, if unambiguous, obviates reliance on legislative historyor other external sources. \/E.g., Consumer Product Safety Commission v.GTE\/, 447 U.S. 102, 108 (1980) (?starting point for interpreting astatute is the language of the statute itself . . . [which,] absent aclearly expressed legislative intention to the contrary, . . . mustordinarily be regarded as conclusive?); \/Arcadian Corp.\/, 17 BNA OHSC1345, 1347 (No. 93-3270, 1995) (??[i]n a statutory construction case,the beginning point must be the language of the statute, and when astatute speaks with clarity to an issue[,] judicial inquiry into thestatute?s meaning, in all but the most extraordinary circumstances, isfinished?? (citations omitted)), \/aff?d\/ 110 F.3d 1192 (5th Cir. 1997).Commissioner Rogers would find that the words ?not less than $5,000 foreach willful violation? mean just that. \/See\/ \/Connecticut Nat. Bank v.Germain\/, 503 U.S. 249, 254 (1992) (explaining that Congress ?says in astatute what it means and means in a statute what it says?). In herview, these words are unambiguous and can \/only\/ be read to require thatat least $5,000 must be assessed for \/each\/ affirmed willful violation.\/See Kaspar Wire Works Inc. v. Secretary\/, 268 F.3d 1123, 1130 (D.C.Cir. 2001) (finding that ?plain language of the Act could hardly beclearer? that per-instance penalties are ?consistent with the generalprinciple that each violation of a statutory duty exposes the violatorto a separate statutory penalty?).The legislative history emphatically supports this interpretation,clarifying that ?[i]n order to ensure that the most egregious violatorsare in fact fined at an effective level, the conferees . . . adopted amandatory minimum penalty of $5,000 for a willful violation of the OSHAct . . . [a]s a penalty floor that is not intended to become a penaltyceiling.? H.R.Rep. No. 101-881, \/reprinted in\/ 1990 \/U.S.C.C.A.N\/. 2050,2393-94. The seven-fold increase in all penalties exceeded thethree-fold increase that would have been sufficient to keep pace withinflation, as the larger increase was deemed necessary to effectuate the?stated purpose? of the OSH Act. \/Id.\/ at 2393. \/See U.S. ex rel.Chandler v. Cook County\/, 277 F.3d 969, 978 (7th Cir. 2002) (findingthat ?[i]t could not be more clear that Congress, in adopting [FalseClaims Act penalty enhancement], addressed the situation with carefulprecision as to what sort of damage scheme was necessary to achieve thegoals of the statute?).Congress also specifically contemplated the effect of the penaltyincrease in the context of willful recordkeeping violations, noting that?the mandatory minimum penalty adopted by the conferees targets the mostextreme violators[,]? which includes employers who ?knowingly andintentionally violate the recordkeeping and reportingrequirements . . . .? H.R.Rep. No. 101-881, \/reprinted in\/ 1990\/U.S.C.C.A.N\/. at 2393-94. The potential for significant penaltyenhancement of willful per-instance recordkeeping violations would havebeen apparent, as the Secretary?s per-instance recordkeeping citationsin \/Caterpillar,\/ \/Kohler, Inc.,\/ 16 BNA OSHC 1769 (No. 88-237, 1994);\/Hern Iron Works, Inc.\/, 16 BNA OSHC 1206 (No. 89-433, 1993);\/Pepperidge Farm\/; and \/Kaspar Wire Works\/ all predated passage of theOmnibus.^Footnote \/See also\/ 136 Cong. Rec. S15776 (daily ed. Oct. 18, 1990) (statement ofSen. Hatch) (acknowledging that ?OSHA, under its egregious policy,penalized several businesses in the multimillion dollar range?). Commissioner Rogers respectfully takes issue with hercolleague?s suggestion that the conferees? contemplation of a?settlement? exception to the minimum penalty undercuts the mandatoryapplicability of the minimum in a litigated case. As the confereesrecognized, the settlement comments concerned ?OSHA?s existing[settlement] authority . . . [as] [t]he conferees d[id] not intend todeprive the agency of [its] flexibility to settle cases . . . .?H.R.Rep. No. 101-881, \/reprinted in\/ 1990 \/U.S.C.C.A.N\/. at 2394. TheSecretary?s \/exclusive\/ settlement authority, including mitigation ofpenalties pursuant to settlement, is derived from her uniqueprosecutorial role. \/Cuyohoga Valley Railway Co. v. UnitedTransportation Union\/, 474 U.S. 3, 7 (1985) (?[a] necessary adjunct of[the Secretary?s sole] power is the authority to withdraw a citation andenter into settlement discussions with the employer?) (citationomitted); \/Donovan v. OSHRC (Mobil Oil)\/, 713 F.2d 918, 927 (2nd Cir.1983) (only Secretary has ?unfettered discretionary authority towithdraw or settle a citation . . . or to settle, mitigate or compromiseany assessed penalty?). Therefore, any exception, by its terms and byvirtue of the Secretary?s prosecutorial authority, would apply only tothe Secretary and only in the context of settlements. \/See Brooks WellServicing Inc.\/, 20 BNA OSHC 1286, 1288-89 (No. 99-0849, 2003) (notinggeneral rule of statutory construction that ?exceptions are to benarrowly construed?) (citations omitted). In agreement with her colleague, Commissioner Rogersacknowledges the Commission?s statutory duty to assess an ?appropriate?penalty based on the evidentiary record. 29 U.S.C. ? 666(j), ? 17(j). Inher view, however, a focus on the Secretary?s egregious\/willful policyfactors to determine whether per-instance penalties are appropriate foraffirmed per-instance violations sidesteps the statutory issue. Such anapproach ?splits the baby? by dividing per-instance citation authorityinto two distinct analytical questions: whether the citedstandard\/regulation can be read to support per-instance citations, andwhether the record evidence sufficiently supports the Secretary?s?willful plus? criteria to warrant individual penalties. Regardless ofthe permissibility of assessing a single grouped penalty forindividually cited and affirmed violations, the amended Act simplyprecludes the assessment of \/any\/ penalty that does not amount to atleast $5,000 for each affirmed willful violation. This is consistentwith the Commission?s corollary limitation precluding assessment of apenalty exceeding the statutory maximum for a single violation, evenwere the Commission to find the maximum permissible penalty inadequate. Nonetheless, in contrast to her colleague, CommissionerRogers would find that assessment of a separate penalty for each ofJindal?s willful recordkeeping violations is reasonable in thecircumstances of this case, and satisfies the four section 17(j) penaltycriteria as well as those the Secretary has articulated in heregregious\/willful policy. As with all recordkeeping violations, theCommission classifies these violations as low gravity. However, Jindal?sabysmal error rate that averaged approximately seventy percent overthree years, in conjunction with a recordkeeping program specificallydesigned and implemented to under record, represents a level of badfaith that clearly justifies the Secretary?s lawful exercise of herdiscretion to cite these violations separately and the penalties thatstatutorily flow from it. Commissioner Rogers also rejects the notion that thestatutorily prescribed minimum penalties here would be extraordinary.Under the Act?s original penalty scheme, the Commission assessed anaggregate penalty of $210,500 for the 342 willful recordkeepingviolations in \/Kaspar\/, amounting to an average of $615.49 perviolation. A seven-fold increase in that amount would yield a perviolation penalty of $4,308.43. In \/Pepperidge Farm\/, the Commissionassessed a penalty of $289,603 for the 176 willful recordkeepingviolations, amounting to an average of $1645.47 per violation. Aseven-fold increase in that amount would yield a per violation penaltyof $11,518.29. Here, a $5,000 penalty for each of Jindal?s eighty-twoaffirmed willful violations would yield a total penalty of $410,000, anamount well within the range of previously assessed willful penalties.In view of the mandatory minimum, and the documented Congressionalintent to effectuate the ?stated purpose? of the Act with a significantpenalty increase, Commissioner Rogers would find that the judge exceededhis authority by assessing a single penalty that failed to amount to adollar value equal to, or greater than, the $5,000 statutory minimum foreach affirmed willful violation. \/Cf. U.S. v. ITT Continental BakingCo.\/, 420 U.S. 223, 229 n.6 (1975) (noting that where statute prescribesno minimum penalty and permits, though does not require, penaltiesassessed as a series of daily violations rather than a single violation,trial judge?s penalty assessment reviewed for abuse of discretion). ———————————————————————— SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC DOCKET NO. 00-2231JINDAL UNITED STEEL CORP., and its successors,\t Respondent.\t APPEARANCES: For the Complainant:Danielle L. Jaberg, Esq., Erica J. McGuirk, Esq., Susan MeyercordWilliams, Esq., Office of the Solicitor, U.S. Department of Labor,Dallas, Texas For the Respondent:Thomas H. Wilson, Esq., Merritt B. Chastain, III, Esq., Julie MertenEsq., Vinson & Elkins, LLP, Houston, Texas Before: Administrative Law Judge: James H. Barkley DECISION AND ORDER This proceeding arises under the Occupational Safety andHealth Act of 1970 (29 U.S.C. Section 651 \/et seq.\/; hereafter calledthe ?Act?). Respondent, Jindal United Steel Corp., (Jindal), at all timesrelevant to this action maintained a steel manufacturing plant inBaytown, Texas. Respondent admits it is an employer engaged in abusiness affecting commerce and is subject to the requirements of the Act. On May 10 through October 19, 2000 the Occupational Safetyand Health Administration (OSHA) conducted an inspection of Jindal?sBaytown plant. As a result of that inspection, Jindal was issuedcitations alleging violations of the Act together with proposedpenalties. By filing a timely notice of contest Jindal brought thisproceeding before the Occupational Safety and Health Review Commission(Commission). On August 3, 2001, the parties entered into a partialsettlement agreement disposing of ?serious? citation 1, in its entirety.On September 7, 2001 the parties submitted an additional agreement,disposing of ?willful? citation 2, items 123 through 126. On September11-13, 2001, a hearing on the matters remaining at issue was held inBeaumont, Texas.At the hearing the parties filed a joint stipulation inwhich the Secretary agreed to withdraw willful citation 2, items 7, 41,62, and 88. Willful citation 2, items 1 through 6, 8 through 40, 42through 61, 63 through 87, and 89 through 122, remain at issue. Each ofthe remaining items alleges a violation of ?1904.2(a), which requiresthat employers record occupational injuries and illnesses. Jindalcontests the recordability of 24 of the remaining items, as set forthmore fully below. Jindal also disputes the Secretary?s willfulclassification and penalties of all items. The parties have submittedbriefs on the matters remaining at issue and this case is ready fordisposition.Background Jindal purchased the subject plate steel manufacturingfacility in Baytown, Texas in 1997 from USX (Tr. 46, 267-67, 526).Jindal is located on the same 59 acre tract which houses Saw Pipes USA,Inc. (Saw Pipes); both were part of an older USX steel mill facility(Tr. 583). The old USX plant produced plate steel, which was then rolledinto pipes. When sold, the plant was divided into two operations, Jindaloperating the plate mill, and Saw operating the pipe manufacturingdivision. The two companies share some common ownership; Saw Pipes holdsstock in Jindal (Tr. 141, 595). Saw Pipes commenced its operations priorto Jindal?s start up (Tr. 123, 265, 562-64). Craig Wetherington testified that he interviewed for a safetyand health position with Jindal on May 4, 1998 (Tr. 51). Wetheringtonstated that Ms. Lisa White, Jindal?s human resources manager, and GaryJones, the human resources manager for Jindal?s sister company, SawPipes, conducted his first interview (Tr. 48, 96). He was theninterviewed by Doug Gates, Jindal?s plant manager, along with Ms. White(Tr. 48-49). Wetherington stated that his position had no formal jobdescription; he was told that, if hired, his job would entail helpingthe company come into operational status, and dealing with basic dailysafety operations (Tr. 50). Wetherington was further told that he wouldhave ?double line, or dotted line responsibility? to both Mr. Jones andDoug Gates (Tr. 49, 66-67, 76, 98-99, 113). According to Wetherington,Jones was the administrator of the safety program for both Jindal andSaw pipes, and was the ?contract holder, or signature party? for bothJindal and Saw pipes? Workers Compensation policies (Tr. 66, 126).Wetherington would be required to seek permission from Mr. Jones beforesubmitting a claim to Workers? Compensation (Tr. 65). Wetherington washired later the same afternoon, and reported to work on May 5, 1998 (Tr.51). Upon reporting for work, Wetherington inspected the physical plant,and reviewed Jindal?s safety program and manual, as well as the OSHA 200logs (Tr. 51-52). Wetherington testified that he responded to employee injuriesand accidents as part of his job (Tr. 52). After he received a report ofan accident he would respond to the site to determine whether additionalhelp was needed to respond. The injured employee would then be taken tothe first aid, or nurse?s, station. If needed the employee could betransferred to the healthcare provider with which Jindal had a contract,or to the local emergency room (Tr. 52-54). When an accident occurred atthe plant, the injured employee?s supervisor created an accident report,including the name of the affected employee, the date and location ofinjury, and a cursory description of the incident, and injury (Tr. 56).The accident report was to be turned over to Wetherington, the dutynurse, or to Doug Gates in the daily turn report, no later than firstduty day following the accident (Tr. 56; Exh. C-295 through C-331). Thenurse on duty also created a chronological list of all visits to theclinic and the care provided (Tr. 58-59; Exh. C-225, C-226). Wetherington testified that he followed up on injuries. Heexamined the first aid log from the on-site first aid station weekly,and checked with the affected employee or with the nurse, who receivedthe injured employee?s ?return envelope? from the healthcare provider(Tr. 58-60, 77). The return envelope would list prescriptions and\/orphysical therapy prescribed, and any physical restrictions on theemployee?s activity (Tr. 58). Wetherington also signed off on medicalbills submitted by the healthcare provider for treatment provided toJindal employees (Tr. 59-64; Exh. C-168 through C-194). In addition,Wetherington stated, he was responsible for submitting Workers?Compensation forms for eligible employees (Tr. 65). Craig Wetherington testified that during his tenure at LowryAir Force Base, between 1983 and 1992, he attended a four day seminarcovering the OSHA 200 log, andthe requirements for OSHA illness andinjury record keeping (Tr. 42-44). Later, while working as a safety andhealth director at Grant\/PrideCo, Wetherington attended a second,week-long course, sponsored by OSHA (Tr. 43). Wetherington wasresponsible for maintaining the OSHA 200 logs for Grant\/PrideCo. forfive years, until 1997 (Tr. 44-45). Wetherington testified that heunderstood OSHA record keeping requirements, and the meaning of theterms ?medical treatment,? ?restrictive work activity,? and ?lostworkdays? as defined by OSHA (Tr. 42-43). Wetherington testified that he did not fill out the OSHA 200logs at Jindal in accordance with OSHA recording criteria. Rather,Wetherington stated, he waited to record any injuries until it wasdetermined whether an employee?s injury was sufficiently serious to bereported to Workers? Compensation. If the cost of an employee?s medicaltreatment and lost work time was paid out of pocket by Jindal, the TexasWorkers? Compensationfirst report of injury (TWCC 1) was not forwardedto the state. In that case, Wetherington was not to list the injury onthe OSHA 200 logs (Tr. 68, 77-80). If, however, the employee faced anextended period of convalescence or surgery, his or her injury would bereported to Workers? Compensation and listed on the OSHA 200 log (Tr.65, 68). Consequently injuries meeting OSHA recording requirements weredeliberately omitted from the logs. Wetherington testified that hefilled out both the Workers Compensation forms and the OSHA 200 forms inaccordance with instructions provided him by Gary Jones (Tr. 68). Within several weeks of his hire date, Wetheringtontestified, he had a conversation with Jones about the way the Worker?sCompensation claims were handled, and the resulting discrepancies in theOSHA logs. Wetherington stated that he told Jones he did not believe the200 log was being filled out correctly. Jones told Wetherington that heinterpreted OSHA regulations differently and that if Wetherington didn?twant to record injuries according to his interpretation, Wetheringtoncould find another job (Tr. 69, 555). Wetherington stated that, onseveral occasions, he spoke to Jones about the recording practices forthe OSHA 200 log, but quit askingwhen he repeatedly got the same answerto his questions (Tr. 73). Although Jones never directly stated that it was his intentto skew Jindal?s accident data, Wetherington believed that Jones wasknowledgeable about OSHA reporting requirements, and could not, in goodfaith, have interpreted those requirements to exclude all injuries notreported to Workers? Compensation. Footnote Wetheringtonbelieved that Jones? intent was to misrepresent the number of accident?sat the plant, in order to obtain favorable insurance premiums for thecompany (Tr. 109, 115-116). Wetherington also believed that the purposeof the under-reporting was to evade inspections by OSHA by reporting alow Lost Worker Day Index [LWDI] (Tr. 109-110). Wetherington testified that he reported his conversation withJonesto Lisa White and Doug Gates, specifically stating that he wouldnot be following OSHA requirements when filling out the 200 log whenfollowing Jones? instructions (Tr. 70-71, 130). He also went to JoeHayes, a vice president at Jindal, about his concerns on a specific case(Tr. 75, 117). According to Wetherington, Hayes was not interested, andreferred him back to Jones (Tr. 75-76). White and Gates told him thatJones had the final word on both Workers? Compensation issues and on theOSHA reporting requirements (Tr. 70, 104). While Gates wantedWetherington to comply fully with OSHA requirements, he recognizedJones? authority over safety issues. He recommended that Wetheringtonobey his supervisor, and ?cover? himselfby documenting any objections hehad to the way the safety program was run (Tr. 71, 119, 130; \/see also\/testimony of Lisa White, Tr. 160-61, Exh. 292). On June 24, 1998, Wetherington wrote a memo for the hispersonnel file (Tr. 71, 73, 130-31; Exh. C-293), stating that he hadasked Gary Jones about the company policy not to report injuries forwhich a first report of injury or illness had been completed (TWCC 1’s),either to the state (Texas Worker?s Compensation Commission), or toOSHA. The memo goes on to state that Jones told Wetherington ?not toworry about it.? Wetherington writes that after reaffirming Gary Jones?final authority over safety matters, he decided to record all first aidon the company logs, but to list on the OSHA 200 log only cases forwhich Workers? Compensation claims are made (Exh. C-293). Wetheringtonalso wrote a letter to Lisa White restating his position and noting thatif Gates truly wants full compliance then ?we are going to have to goover Gary?s head and report all injuries since the first of the year.?Wetherington goes on to note ?I do not really think any of us can standthat much heat? (Tr. 71, 73; Exh. C-292). Wetherington testified that, in addition to under-reportinginjuries for which claims had not been filed, he also under-reportedinjuries involving temporary workers. Wetherington testified that GaryJones specifically told him that injuries suffered by temporary laborerswould be reported by the agency through which the laborer was employed,and that Wetherington was not to report those injuries (Tr. 74).Wetherington testified that he told Jones this did not conform to OSHAreporting guidelines; Jones told him he interpreted the guidelinesdifferently (Tr. 74, 93). As a result, Wetherington did not report anyinjuries to temporary laborers; he did not do any followup on temporaryemployees who had been injured (Tr. 81). Wetherington identified the OSHA Injury and Illness DataCollection Form for 1998, which he completed and signed (Tr. 82; Exh.C-332, \/see also\/, Exh. C-402). Eight lost work time injuries werelisted for the 1998 calendar year, which, according to Mr. Wetherington,corresponded to the number he reported on the OSHA 200 form for thatyear (Tr. 82-83). The 1998 logs entered into evidence actually show 7lost work time injuries, and three injuries without lost work time (Exh.R-1, C-400). Lisa White testified that in April 1998 she interviewed withGary Jones and Dillip Bhargavafor a position as Jindal?s human resourcemanager (Tr. 147-49, 205).She believed Bhargava to be the president ofSaw pipes and CEO of Jindal. Gary Jones offered her the position, andshe accepted on April 21, 1998 (Tr. 147-49; Exh. C-334). White testifiedthat when she was hired, Dillip Bhargava told her that, while she wouldbe working directly under Joe Hayes, a Jindal vice president, she wouldbe reporting through Gary Jones on any matters relating to safety (Tr.141,144-46, 186, 209). Ms. White further testified that she did, infact, report to Jones on compensation claims and EEOC litigation mattersthroughout her employment (Tr. 150-51, 162, 181, 188). Ms. Whitetestified that Craig Wetherington was hired three for four weeks intoher employment with Jindal; prior to that, there was no safety manageron site (Tr. 151). White testified that during Wetherington?s interview,Gary Jones told Wetherington that he, like her, would have dualreporting responsibility to Jones (Tr. 154). White recalled Wetherington?s concern about Jindal notturning over minor injuries, or injuries without lost work time to theirinsurance carrier, or reporting those claims on the OSHA 200 forms (Tr.156-57). She stated that he was also concerned that he had been directednot to report injuries involving temporary laborers on the OSHA 200s(Tr. 157). White confirmed that she was present during Wetherington?smeeting with Doug Gates, and corroborated Wetherington?s version ofevents (Tr. 160-61, 195-97). White stated that she was familiar with therecording criteria for the OSHA 200 logs (Tr. 137-40), and realized thatthe injuries Wetherington was concerned about should have been recorded(Tr. 157-58). However, when Wetherington left Jindal, and White tookover responsibility for the 200 logs prior to engaging a new safetymanager, White followed the practices Wetherington described to her.White intentionally failed to record at least one injury [cited at item93] she knew to be recordable, because the employee involved was atemporary worker (Tr. 168-71). Doug Gates, Jindal?s plant manager, testified that Gary Jonesintroduced him to Craig Wetherington in the course of Wetherington?s jobinterview (Tr. 248-49). According to Gates, Jones told him thatWetherington would be working in the plate mill, but be reporting toJones (Tr. 250-51, 255). Gates testified that Jindal was ?fumblingaround trying to start our safety program.? (Tr. 252). The onlydirection Gates gave Wetherington was to ?establish a safety program andto be in the field and make observations of the people, the equipment,things like that. . ..? (Tr. 252). Gates confirmed that Wetherington andWhite came to him with concerns about the way the OSHA logs were beingkept. Gates understood that both Wetherington and White felt that theywere being asked to keep the logs in a way that did not conform to theirtraining. However, Gates stated, he was unfamiliar with safety andhealth issues and felt that Wetherington and White should be discussingtheir problem with Jones, who was their supervisor (Tr. 253-54, 262).Gates testified that he recommended Wetherington make Jones aware of hisobjections, and let Jones know that he would bear the ultimateresponsibility for any problems (Tr. 255). Gary Jones testified that in July of 1997he was hired by SawPipes to bargain with the United Steelworkers Union (Tr. 556). Jonestestified that Jindal began start up operations in late 1997 or early1998, but denied that he had any role in that process (Tr. 562). Jonesthen went on to repeatedly contradict this statement. He testified thathis supervisor, Mr. Bhargava, appointed him to act as liaison betweenSaw Pipes and Jindal?s security department, which had a crew putting theJindal facility in order (Tr. 564). Because he was the only humanresources person at the facility, he interviewed, negotiated employmentterms and hired Lisa White (Tr. 566-67). Jones claimed to have no rolein safety and health decisions at either Saw Pipes or Jindal (Tr. 564).However, Jones hired Saw Pipes safety managers, Ronnie Johnson and,later, Robert Murphy (Tr. 557, 560). He interviewed Craig Wetherington,and when Wetherington left Jindal, Lisa White came to Jones to ask ifMurphy could fill in as safety manager (Tr. 566-67). He established aclinic for the benefit of both Jindal and Saw Pipes employees, andarranged for its staffing (Tr. 565). Jones understood that Jindal andSaw Pipes had the same insurance carrier, but stated that he had no rolewhatsoever in the administration of either Saw Pipes? or Jindal?sWorkers Compensation program (Tr. 558, 563). Jones testified that he was not Lisa White or CraigWetherington?s supervisor, and had no authority to fire or disciplineeither of them (Tr. 579-82). Jones stated he never had any conversationswith any of Jindal?s management concerning OSHA reporting requirements,or OSHA 200 forms (Tr. 582-83). He maintained he never told Wetheringtonthat he did not have to report on the OSHA 200 log any injury that wasnot also reported to Workers? Compensation (Tr. 575). He denied tellingWetherington to under report injuries on the OSHA 200 (Tr. 576). Jones did recall a conversation with Wetherington regardinginjuries to temporary laborers. Jones testified that he gaveWetherington his reasoning for not reporting those injuries, statingthat Jindal\/Saw didn?t supervise those laborers, that the laborersviewed the staffing agency, Labor Ready, as their employer, and that thestaffing agency told him that they were maintaining an OSHA 200 log ontheir employees (Tr. 577). Jones, who is also an attorney,testified thathe consulted the Blue Book Footnote before discussingthe issue with Wetherington (Tr. 590-94). Jones maintained he did notknow how Wetherington chose to handle those injuries (Tr. 577). Jones recalled speaking to Lisa White about Saw Pipes?practice of paying claims out of pocket to avoid Worker?s Compensationclaims (Tr. 577-78). According to Jones, employers in Texas can opt outof Worker?s Compensation program, and that there was nothing illicitabout paying small claims in-house rather than turning them over to theinsurance carrier (Tr. 559). Jones stated that the in house payment ofmedical, or lost time claims had no relation to whether the underlyinginjury was reported to OSHA (Tr. 559). David McIntosh was hired as Jindal?s safety manager onNovember 8, 1999, about a week after first interviewing for the job (Tr.305). McIntosh testified that he reported to Lisa White, who reported toboth Doug Gates and Gary Jones (Tr. 306). McIntosh testified that hediscerned his job duties partially from conversations with Lisa White,but mainly from review of Wetherington?s files. From those filesMcIntosh determined that he was responsible for accident prevention (Tr.313). McIntosh stated that included accident response, and analysis ofthe on site first aid logs (Tr. 313-16). McIntosh stated that he wasnever specifically assigned the task of maintaining the OSHA 200 logs orfor submitting claims to Workers? Compensation (Tr. 316-17). However,McIntosh testified, he asked Doug Gates for permission to take onWorkers? Compensation, as he had prior experience in the area (Tr. 317).McIntosh testified that he was directed to ask Gary Jones if he neededany instruction on which claims were to be submitted; however, he neverhad any occasion to do so (Tr. 318-19). At the hearing, McIntosh testified that responsibility forkeeping the OSHA 200 log had never been specifically assigned to him(Tr. 325-26, 339, 341-42, 373-75). McIntosh assumed responsibility forthe OSHA 200 logs on his own initiative at the end of 1999 when hebecame concerned about the approaching deadline for posting the log (Tr.317). McIntosh knew Wetherington kept the logs when he was the Jindal?ssafety manager, however, and he knew that no one else was keepingthem.(Tr. 332, 334, 338-39). McIntosh completed the 1999 OSHA 200 logsbased on information he located from Wetherington?s files (Tr. 324-25).In his December 23, 1999 Turn Report, he notes correcting and updatingthe OSHA 200 log for 1998. He also states: ?Did the same thing for 1999,except I still need to update October through December (Exh. C-374).McIntosh?s Turn Reports do not mention the OSHA 200 forms again untilFebruary, when he discussed purchasing ?EZ Track? software to ?stay ontop of our injuries and illnesses (Exh. C-385), and setting up a database to record injuries for 2000 (Exh. C-386). McIntosh testified thathe posted the 1999 log in February of 2000 (Tr. 324-25). The log, whichhas eleven entries,was never updated to include any entries from Octoberand November. Only one entry appears for December, from the 24^th , theday after McIntosh noted working on the log (Exh. R-2, C-400). McIntosh testified that, in his opinion, Jindal wasunder-reporting injuries; he knew there were recordable injuries thatshould have been, but were not entered on the OSHA 200 form because theywere not reported to Worker?s Compensation (Tr. 322-24).No Jindalexecutive ever told him that Jindal?s had a policy to under-reportinjuries to OSHA; however, Lisa White told him that Jindal?s policy oncompleting the OSHA report was to log only those claims turned intoWorkers? Compensation (Tr. 320-22, 364-65, 386). White also toldMcIntosh that, in accordance with Gary Jones? instructions, injuriessustained by temporary laborers were not to be recorded (Tr. 334).McIntosh testified that he told White that he disagreed with the?unwritten? recording policies (Tr. 339-40).Nonetheless, McIntoshadmitted that injuries continued to be under-reported during his tenureas safety manager. McIntosh denied any personal responsibility for the continuedunder-reporting, insisting that he had not specifically been assignedthe job of maintaining the logs. He completed the 2000 OSHA logs, ?justto keep us covered in case something like this did happen? (Tr. 328,332). McIntosh stated that he did attempt to enter all injuries forwhich Workers? Compensation claims had been filed into the OSHA log. Hecouldn?t be sure he recorded them all, however, because he didn?t haveaccess to the insurance information (Tr. 385-89).McIntosh admitted thathe was aware of some recordable injuries that he failed to report (Tr.342, 350, 352, 354, 355). He testified that he did not record suchinjuries because he ?did not have time,? ?did not get enoughinformation,? was kept ?busy doing other things,? and was neverspecifically told it was his responsibility (Tr. 343-64). In particular,McIntosh stated, Sandeep Mishra, Jindal?s president, assigned himanother project, programming each employee?s hand print into the handscanners for time keeping purposes (Tr. 366, 379). He was also assignedancillary duties ?such as getting the truck scale fixed, getting thefence fixed, finding contractors to fix the bathrooms out in the mill?(Tr. 379). McIntosh insisted that he never made a conscious decision notto record an injury, and maintained that he ignored Jindal?s unwrittenpolicies (Tr. 373-74). The 2000 log reflects 13 work related injuriesthrough May of that year (Exh. R-3, C-400). The cited violations of ?1904.2(a) allege that during therelevant periods of 1998, 1999 and the first half of 2000, Jindal failedto record 75%, 86% and 55%, respectively, of all recordable injuries(Tr. 513; Exh. C-406). Jindal admits that 94 of the 118 cited injuriesshould have been recorded. Of the 24 citations contested by Jindal,eight are vacated, as discussed more fully below; the remaining 16 areaffirmed. Taking the vacated items into account, I find that Jindalfailed to record 74%, 84% and 53%, of all recordable injuries, for the1998, 1999, and the first half of 2000. The classification of theviolations as willful, and the appropriateness of the penalty arediscussed below. Violations of ?1904.2(a) As noted above, citation 2, as amended, alleges 117violations of ?1904.2. Each item reads:29 CFR 1904.2(a): The log and summary of occupational injuries andillnesses (OSHA Form No. 200 or its equivalent) was not completed in thedetail provided in the form and the instructions contained therein: Section 1904.2(a) provides:Each employer shall, except as provided in paragraph (b) of thissection, (1) maintain in each establishment a log and summary of allrecordable occupational injuries and illnesses for that establishment;and (2) enter each recordable injury and illness on the log and summaryas early as practicable, but no later than 6 working days afterreceiving information that a recordable injury or illness has occurred. Section 1904.12 states: (c) \/Recordable occupational injuries or illnesses\/ are any occupationalinjuries or illnesses which result in:(1) Fatalities. . . (2) Lost work day cases, other than fatalities, thatresult in lost workdays; or (3) Nonfatal cases without lost workdayswhich result in transfer to another job or termination of employment, orrequire medical treatment (other than first aid) or involve: loss ofconsciousness or restriction of work or motion. This category alsoincludes any diagnosed occupational illnesses which are reported to theemployer but are not classified as fatalities or lost workday cases. \/\/(d) \/Medical treatment\/ includes treatment administered by a physicianor by registered professional personnel under the standing orders of aphysician. Medical treatment does not include first aid treatment eventhough provided by a physician or registered professional personnel.(e) \/First Aid\/ is any one-time treatment, and any followup visit forthe purpose of observation, of minor scratches, cuts, burns, splinters,and so forth, which do not ordinarily require medical care. . .. Citation 2, items 1 through 6 and 8 through 15. Jindal doesnot contest the underlying violations set forth in items 1 through 15.Those items allege violations resulting from injuries occurring onFebruary 23, March 10, April 26, May 7, June 3, June 9, June 24, August17, 1998 August 27, August 28, October 15, October 23, November 15,December 4, and December 8, 1998. Jindal admits not only that theinjuries occurring on those dates were recordable, but that Jindalmanagement knew or should have known that (1) the injuries wererecordable, and (2) the injuries were not, in fact, recorded. Citation 2, item 16. Joe Potter, a shift maintenance foremanat Jindal United Steel, testified that he strained a muscle in his lowerback while attempting to lift an oil drum (Tr. 438). Potter testifiedthat he was given medications which he was to take for two weeks (Tr.438). Records from the San Augustine Industrial Clinic support Potter?stestimony; the clinical notes indicate that on January 13, 1999, a Dr.Arora suggested the use of a lumbar corset, ordered a course of therapyand prescribed daily doses of 75 mg of Arthrotec (Exh. C-18). Potter wasreleased for work ?with the following instructions:. . . NO EXCESSIVE\/\/.. .LIFTING OVER 25\/\/POUNDS. . . SQUATTING. . . CLIMBING.? \/Recordability. \/Jindal maintains that the Secretary failedto prove that Joseph Potter received medical treatment for his injury,in that she failed to prove how many doses of Arthrotec Potter wasprescribed, or that Arthrotec is a prescription medication. Jindalfurther maintains that any restrictions in activity resulting from theinjury did not prevent him from performing his normal job duties. Under Fed. R. Civ. Pro. 201(b)(2), this judge may take noticeof facts ?capable of accurate and ready determination by resort tosources whose accuracy cannot reasonably be question. This judge notesthat The Physicians Desk Reference lists Arthrotec as a prescriptiondrug used mainly for treating osteoarthritis. Potter testified that hewas to take the medication for two weeks. OSHA?s Record keeping Guidelines for Occupational Injuriesand Illnesses (hereafter referred to as the Blue Book), contains OSHA?sofficial interpretation of the record keeping requirements (Exh. C-403).The Blue Book states, in pertinent part, that medical treatment includesthe use of prescription medications (Except a single dose administeredon a first visit for minor injury or discomfort) (Exh. C-403, p. 43).Joseph Potter?s injury was recordable under the plain meaning of thestandard. \/Knowledge. \/Craig Wetherington was provided with a log sheetcontaining two entries concerning Potter?s injury, and a notation thatPotter went to San Augustine Clinic (Exh. C-225, p. 12). An injuryincident report was prepared, noting that Potter injured his back (Exh.C-307). Initially, this judge notes that this, and, in fact, all ofthe cited violations were discovered during a review of recordsobtained, considerably after the fact, in the course of the OSHAinvestigation. The records reviewed were in Jindal?s control or in thecontrol of its agents. Such documents were available for the review ofJindal?s\/\/safety management at any time. Thus I find that even ifJindal?s safety managers lacked specific knowledge of any of thecontested injuries, they could, with the exercise of reasonablediligence, have known of the medical treatment provided to the employeesnamed in the citations.The Secretary has established the cited violation. Citation 2, item 17. On January 14, 1999 Joe Edwards, a craneelectrician, fell approximately six feet from a platform at Jindal?splant (Tr. 442-43). Edwards testified that he went to the clinic, butwouldn?t say that he actually hurt his back (Tr. 441). The AccidentReport from the San Augustine Industrial Clinic states that Edwards wasrestricted to ground work only, no climbing, for one week; however,Edwards testified that there was nothing that he did prior to theaccident that he could not do after he fell (Tr. 444; Exh. C-19).Edwards stated that after he returned from the clinic, he went back towork. Jindal maintains that the injury sustained by Joe Edwards didnot result in any restrictions in activity that prevented him fromperforming his normal job duties. This judge agrees. Section 1904.12(c)?s relationship to subparagraph (f), isexplained in the Blue Book, which discusses restriction of work ormotion resulting in lost workdays, stating that:\/Lost workday cases involving days of restricted work activity\/ arethose cases where, because of injury or illness. . . the employee workedat his or her permanently assigned job but could not perform all theduties normally connected with it.Restricted work activity occurs when the employee, as a result of ajob-related injury or illness, is physically or mentally unable toperform \/all or any part\/ of his or her normal assignment during \/all orany part\/ of the workday or shift. The emphasis is on the employee?s\/inability\/ to perform normal job duties over a normal work shift. (Exh. 403, p. 48). Edwards testified that he was not injured when hefell on January 14, 1999, and that after visiting the clinic, hereturned to his normal work activities. This judge cannot find thatEdward?s accident was recordable as that term is defined by OSHA?s ownguidelines. Item 17 is vacated. Citation 2, items 18 through 20. These items are uncontested.Jindal admits that it failed to list on its log and summary ofoccupational injuries and illnesses (OSHA Form No. 200)recordableinjuries suffered by its employees on January 22, January 26, andFebruary 2, 1999. Citation 2, item 21. On February 3, 1999 Ronnie Lindsey wasmoving debris with a front end loader, when the wind blew trash into hisface. The day following this incident, Lindsey reported to the plantdispensary (Tr. 474-77; Exh. C-212). Lindsey was referred to theOccuCare Industrial Medicine Clinic. His eye was flushed, and a doctorprovided Lindsey with a medicated eye patch, which he was to wear for 24hours (Tr. 475-76; Exh. C-22). Lindsey was released to return torestricted duty on February 4, 1999, with instructions that he was to bereleased from the restriction, \/i.e. \/monocular vision, on February 5,1999, if he experienced no further problems (Exh. C-22). Lindseytestified that he was in charge of the mobile equipment operators, andthat his duties included moving heavy equipment (Tr. 476). Lindseystated that he could not move the equipment with monocular vision (Tr. 477). Jindal maintains that the injury sustained by Ronnie Lindseydid not result in any restrictions in activity that prevented him fromperforming his normal job duties. The evidence establishes that Lindsey was unable to performpart of his normal assignments during his February 4, 1999 shift, theday following the onset of his injury. (Exh. C-403 pp. 48, 51, #4).According to the guidelines set forth in the Blue Book, Lindsey?s injurywas recordable. Jindal had constructive knowledge of the violation, asdiscussed at item 16. The Secretary has established the cited violation. Citation 2, items 22 through 24. These items are notcontested. Jindal admits that it knew, or should have known that onFebruary 10, February 19, and March 6, employees suffered recordableinjuries that were not recorded on Jindal?s OSHA 200 log. Citation 2, item 25. On March 12, 1999, Ronnie Lindsey wasworking with a front end loader when a hydraulic line broke, sprayingLindsey with hot hydraulic fluid (Tr. 477). Lindsey testified that,after a few hours, he developed a rash similar to a severe sunburn onhis face, shoulders and chest, which worsened over time (Tr. 476). Thenurse at Jindal?s onsite dispensary washed the rash down withantibacterial soap, and gave Lindsey some lotion (Tr. 479). Lindseyreturned to the dispensary for observation over the next several daysbefore the rash subsided (Tr. 480). Jindal maintains that the illness suffered by Ronnie Lindseydid not constitute an occupational illness, and was, therefore, notrecordable. The Blue Book states that:Under the OSH Act all work-related illnesses must be recorded, whileonly those injuries which require medical treatment (other than firstaid), or involve loss of consciousness, restriction of work or motion,or transfer to another job are recordable. The distinction betweeninjuries and illnesses, therefore, has significant record-keepingimplications. The instructions for distinguishing between injuries andillnesses are form, included in the Blue Book (Exh. C-403, at p. 37)[w]hether a case involves an injury or illness is determined by thenature of the original event or exposure which caused the case, not bythe resulting condition of the affected employee. Injuries are caused by\/instantaneous\/ events in the work environment. Cases resulting fromanything other than instantaneous events are considered illnesses.. . .Asingle incident involving an \/instantaneous\/ exposure to chemicals isclassified as in injury. Had Lindsey?s rash resulted from a chemical exposure over time, it wouldcertainly have been classified as a recordable occupational illness.Footnote BecauseLindsey?s injury arose out of a single incident, however, it must beclassified as an injury. Injuries are only recordable when the criteriaset forth in ?1904.12(c) are met, \/i.e.\/, when the injury requiresmedical treatment other than first aid, or involves a loss ofconsciousness, or restriction of work or motion. Because the Secretaryhas not alleged, or shown, that Lindsey?s March 12, 1999 injury involvedany of the criteria set forth in ?1904.12(c), this item must be vacated. Citation 2, item 26. On the morning of April 7, 1999 WilliamWilliams reported to Jindal?s on site dispensary complaining that he hadsuffered a contusion to his left knee when he fell down some stairswhile carrying a ladder. The nurse had Williams elevate his leg andapply an ice pack for 15 minutes (Exh. C-215; C-225, JUSS 2720). Laterin the day Williams returned to the dispensary, complaining of lowerback pain; the on site nurse applied a heat pack (Exh. C-215, C-225). OnApril 8 Williams asked to be referred to a doctor, and was sent toOccuCare Industrial Medicine Clinic, where he was examined. Williams wasdiagnosed with thoracic strain; his X-rays were negative; no treatmentwas prescribed. Williams was released for work, with instructions not toperform any excessive lifting (Exh. C-27). The Secretary maintains that the two injuries wererecordable, because they arose out of the same incident, and involvedthe ?[a]pplication of hot or cold compress(es) during second orsubsequent visit to medical personnel.?Jindal maintains that WilliamWilliams was treated with ?first aid,? and that any restrictions onactivity resulting from his injury did not prevent him from performinghis normal job duties. Jindal argues that the injury, therefore, was notrecordable. This judge agrees. William Williams suffered two injuries on April 7, 1999. Acontusion to his left knee was treated with a single cold compress.During a subsequent visit, Williams complained of a separate injury tohis back, which was treated with a single hot compress. Williams wasreferred to the OccuCare clinic for tests, but received no treatment.Because Williams? bruised knee and strained back muscle are separateinjuries, and because Williams received only one treatment for eachinjury, this judge cannot find the injuries were recordable. Citation 2,item 26 is vacated. Citation 2, items 27 through 30. are not contested. Thoseitems list two recordable injuries suffered by Jindal employees on April21, and one injury on both April 23, April 27, 1999. None of thoseinjuries were recorded on Jindal?s OSHA 200 log. Citation 2, item 31. On April 27, 1999, Alice Carter,formerly Alice Godfrey, was bitten by a brown recluse spider Footnote while walkingthrough the ?slab yard? at Jindal?s facility (Tr. 484). Ms. Cartertestified that she notified her foremen, and went to the on site clinicbefore being referred to a doctor at the OccuCare clinic (Tr. 482; Exh.C-33). Carter was provided with a prescription salve (Ceftin) andantibiotics, which she was to use until gone (Tr. 482; Exh. C-33). Ms.Carter testified that she ?was using? the salve, but had an allergicreaction to it (Tr. 482). She returned to the clinic on May 3, 1999 (Tr.483; Exh. C-33). The doctor prescribed a different medicine, whichproved effective (Tr. 482-483). In his May 3, 1999 notes, Dr. Arorastates that Carter missed work Saturday and Sunday due to the allergicreaction (Exh. C-33). However, Carter testified at the hearing that shedid not miss any work either because of the spider bite, or her allergicreaction to Ceftin (Tr. 483). Jindal maintains that Carter, was treated with ?firstaid?only, and that the injury, therefore, was not recordable. Jindalfurther maintains that Carter?s injury did not result in any lost work days. This judge finds no reason to discount Alice Carter?stestimony that she did not lose any work days due to her injury. Dr.Arora?s notes are not necessarily contradictory, as Saturday and Sundayare not regular work days. Nor does this judge have any reason toquestion Ms. Carter?s testimony that she ?was using? the Ceftin salve,testimony from which this judge infers Carter was prescribed multipledoses. A work related injury requiring multiple doses of a prescriptionmedication is recordable; \/see\/, the Blue Book, Exh. 403, p. 43. Jindalhad constructive knowledge of the violation, as discussed at item 16.The Secretary has made out the cited violation. Citation 2, item 32. An April 29, 1999 accident reportfrom OccuCare indicates that, on that date, William Arthur had adressing applied to a contusion\/abrasion (Exh. C-34). Arthur wasreleased for return to work with instructions to avoid ?excessive?weight bearing on his right foot (Exh. C-34). Arthur testified that hisnormal job activities, repairing row lines, require him to bearexcessive weight on both feet (Tr. 485-86). However, Arthur could notrecall this injury at all (Tr. 485). Jindal maintains that the injury sustained by William Arthurdid not prevent him from performing his normal job duties. Jindalmaintains that the injury, therefore, was not recordable. The work restriction notation in Arthur?s accident report ininsufficient to show that Arthur was actually unable to perform hisnormal job duties over a normal work shiftas a result of the citedinjury. The Secretary failed to carry her burden in this instance, andthis item must be vacated. Citation 2, item 33. Jindal does not contest citation 2, item33, which alleges that a recordable injury that occurred to J-99-20 onMay 13, 1999 was not recorded on the OSHA 200 log. That item will beaffirmed. Citation 2, item 34. Nurses notes dated May 18, 1999 and anaccident report from OccuCare dated May 19,1999 indicate that on May 14,of that year, Roger Blunt was cutting steel with a torch when hot slagfell on his boot. The slag burned through his boot, Blunt was diagnosedwith first and second degree burns on the instep of his left foot (Exh.C-36, C-222). Jindal?s nurse cleaned and dressed the burn with 1%Silvadene creme on May 18, and 19,1999 (Exh. C-222). The Physician?sDesk Reference states that Silvadene 1% is a prescription anti-microbialointment, silver sulfadiazine. Because Blunt was treated with a prescription medication onhis initial \/and\/ on a subsequent visit to Jindal?s clinic, the injuryshould have been recorded in accordance with the instructions providedin the Blue Book. Jindal had constructive knowledge of the violation, asdiscussed at item 16. Citation 2, item 34 will be affirmed. Citation 2, items 35 through 38. Jindal does not contestthese items which alleges violations regarding recordable injury thatoccurred May 18, June 27, July 13, July 15, 1999 was not recorded on theOSHA 200 log. Those items will be affirmed. Citation 2, item 39. On July 23, 1999, Maria Garcia reportedto Jindal?s dispensary complaining of pain in her right foot (Exh.C-227). The on-site nurse directed Garcia to wrap and elevate the footover the weekend, and take 800 mg. of Advil every six hours. Garcia wasto return on July 26, 1999 if she had seen no improvement (Exh. C-227).On July 26 Garcia returned, complaining of pain and swelling in the archof the foot. Craig Wetherington was notified and Garcia was referred toOccuCare (Exh. C-227). The OccuCare accident report states that Garciafell off a steel plate, spraining her ankle (Exh. C-41). Doctor?s notesaccompanying the report indicate that Garcia was given 12 samples ofRelafen 500, advised to take the medication as directed, to use anklesupport, apply heat, and take Tylenol for pain (Exh. C-41). Relafen(Nabumetone), is a prescription non-steroidal anti-inflammatory (NSAID). Because Garcia was provided with multiple doses of Relafen, aprescription drug, during her third visit to a health care providerconcerning the same injury, that injury should have been recorded inaccordance with the instructions provided in the Blue Book. Jindal hadconstructive knowledge of the violation, as discussed at item 16.Citation 2, item 39 will be affirmed. Citation 2, item 40. Jindal admits the recordability of theinjury cited at citation 2, item 40. The injury cited occurred on August17, 1999, and that item will be affirmed. Citation 2, item 42. On August 17, 1999, Rich Moody wasbitten by an ?asp,? a caterpillar-like insect; Moody developed anallergic reaction to the bite (Tr. 451-52). Moody reported to theOccuCare Clinic and received two injections, 50 mg. Benadryl and 60 mg.Kenalog. Jindal maintains that the injured employee in this case, RichMoody, was treated with ?first aid,? and that his injury, therefore, wasnot recordable. This judge disagrees. Moody received two, \/i.e.\/multiple, doses of prescription medication. In its brief Jindal statesthat Benadryl is ?arguably and over-the-counter medication.? However, inthis case, Moody received not an oral over-the-counter form of Benadryl,but injectable Benadryl, which is indicated for the immediateamelioration of allergic reactions or anaphylaxis as an adjunct toepinephrine. The injection was administered by a health careprofessional, in conjunction with a second prescription drug, Kenalog.The injury was recordable. Jindal had constructive knowledge of theviolation, as discussed at item 16, and item 42 is affirmed. Citation 2, item 43. On the morning of August 19, 1999, JamesSherman was stepping off the ?roll grinder? when his right calf musclebegan to cramp (Tr. 429). Sherman reported to the dispensary, where thenurse on duty iced down his leg for 20 minutes before referring him toOccuCare (Exh. C-229). At OccuCare, Dr. McShane tentatively diagnosedSherman with a vessel rupture or muscle tear based on the results of avenous doppler test (Exh. C-434). Sherman believed he received ananti-inflammatory, and medication for pain (Tr. 429). McShane?s notesconfirm that Sherman received samples of Celebrex and was given Tylenolfor pain. Sherman was advised to ice the leg, rest and to return to workthe following morning. Jindal maintains that the Secretary failed to prove thatJames Sherman suffered a work related injury, or that he receivedtreatment in excess of first aid. Injuries arising on the employer?s premises are presumed tobe work related, unless the employer shows that the injury is actually asymptom or result of an earlier non-work related event (Exh. C-403, pp.32-34). Because Jindal introduced no evidence tending to rebut thepresumption, Mr. Sherman?s injury is deemed work-related. Shermanreceived medical treatment, in that he was provided samples (plural) ofCelebrex (celecoxib), a prescription non-steroidal anti-inflammatorydrug. Sherman?s injury was recordable; Jindal had constructive knowledgeof the violation, as discussed at item 16, and its failure to record theinjury was a violation of the Act. Citation 2, item 44. Respondent admits it knew or should haveknown that the injury cited at citation 2, item 44 should have beenrecorded. That injury took place on August 27, 1999. Citation 2 item 44will be affirmed. Citation 2, item 45. On August 30, 1999, Eddie Dietz wasinjured when a truck he was a passenger in struck some slabs in Jindal?ssled yard (Tr. 435). Dietz testified that he struck the windshield andcut his right forearm (Tr. 433). Dietz was taken to the dispensary,where he was referred by the on-site nurse to OccuCare (Tr. 433; Exh.C-438). Dietz testified that he was given samples of muscle relaxantsand antibiotics at the clinic, which he took twice a day for two tothree days (Tr. 434). In earlier statements Dietz testified that he wasgiven muscle relaxants for two days, or, pain pills and a packet of fourmuscle relaxers (Exh. R-29). Dr. McShane?s notes from the OccuCareaccident report indicate that rather than writing a prescription forCelebrex, Dietz was given samples of the medication. While Dietz appeared to mistakenly believe that Celebrex, ananti-inflammatory, was a muscle relaxant, he was sure that he took morethan one dose of the medication he was provided at the clinic. Thisjudge finds that the cited injury was recordable. Jindal hadconstructive knowledge of the violation, as discussed at item 16. Item45 will be affirmed. Citation 2, item 46. Jindal admits citation 2, item 46, whichalleges that a recordable injury that occurred at Jindal?s facility onSeptember 30, 1999. That injury was not recorded on the OSHA 200 log inviolation of the Act. Item 46 is affirmed. Citation 2, item 47. At the hearing Arthur testified that hehad gotten metal in his eyes on approximately three different occasions(Tr. 490). Arthur did not recall the dates of each incident, butremembered that on one of these occasions, he was sent to the clinic,where a doctor used a magnetic needle to remove the metal from his eye(Tr. 488). Arthur also recalled being given an eye patch at that time(Tr. 488). Arthur stated that he was going home after visiting theclinic, and so did not miss any work, or worry about the eye patch (Tr.488). The documentary evidence establishes that on the afternoon ofOctober 4, 1999, William Arthur reported to the San Augustine IndustrialClinic complaining of foreign bodies in his eye (Exh. C-46; C-232). Atthe clinic, two foreign bodies were removed from his right eye using an?alger brush.? Arthur was given an eye patch medicated with Blephamidecream and released for work. The restriction, ?monocular vision? wasnoted on his accident report (Exh. C-46). The doctor?s notes furtherreveal that Arthur returned the following day for a follow-up exam. Atthe follow up, Arthur told the doctor that he removed the patch thepreceding night. He complained of a dark discharge from his right eyeand of sensitivity to light. A sample of Ciloxan was provided to him(Exh. C-46). Ciloxan (Ciprofloxacin HCl) Ophthalmic is a synthetic,sterile, multiple dose, antimicrobial for topical ophthalmic use. Therecommended dosage regimen is: One or two drops instilled into theaffected eye at regular intervals while awake for five to 14 days. AsCiloxan is not a single dose medication, Arthur?s treatment cannot beclassified as first aid, and his injury was recordable. Jindal hadconstructive knowledge of the violation, as discussed at item 16. Item47 is affirmed. Citation 2, items 48 through 61 and 63 through 66. Theseitems are not contested. The violations allege that Jindal knew, orshould have known that 18 injuries occurring at their facility onOctober 5, and 27, November 1, 4, 17, 19, and December 2, 4, 6, 13, 15,28, 1999, and on January 3, 13, 29, February 15, and April 11, 2000should have been recorded on the OSHA 200 log. Those items will be affirmed. Citation 2, item 67. On April 13, 2000, William Arthurreported to the on-site dispensary to have his eye checked. Jindal?snurse referred him to Saint Augustine Clinic, where he was diagnosedwith a corneal abrasion, given a medicated eye patch, and released forwork with a restriction for monocular vision (Exh. C?69). At the hearing, Arthur could recall being given an eye patchfollowing an eye injury (Tr. 491). Arthur stated that he could not havedone his job with monocular vision, because his depth perception wouldbe impaired; however, Arthur stated that he did not miss any time atwork because he was injured right before he was to have four or fivedays off, so that he did not have to take any time off (Tr. 488, 491). Jindal contests willful citation 2, item 67, maintains thatthe injuries sustained by William Arthur did not prevent him fromperforming his normal job duties. This judge agrees. The Blue Bookstates that a lost time injury, involving either missed or restrictionof work, occurs only if the employee would have worked during the periodaffected by the injury. If the employee was not scheduled to work duringthat period, the injury need not be counted as a lost or restricted worktime case. Because Arthur testified that he was not scheduled, andtherefore did not miss any work due to his injury, that injury was notrecordable. Item 67 is vacated. Citation 2, item 68. Jindal does not contest item 68. Itadmits that it knew, or should have known that the April 18, 2000 injuryalleged there in should have been recorded. Citation 2, item 69. Roy Bohman testified that on April 27,2000 he hit his head on a metal plate, sustaining a cut above his ear(Tr. 447, 450). Bohman testified that he was diagnosed with a mildconcussion, and given a prescription (Tr. 447). Bohman stated that hehad the prescription filled at the hospital, and took the medication forfour days (Tr. 447-48). In its brief, Jindal maintains that the notes inBohman?s medical ?presumably the physician?s handwritten notes,? whichit provided in response to discovery are illegible (Jindal?s PostHearing Brief, p. 43). However, the notes clearly state that a smalllaceration to Bohman?s left ear was infected; 500 mg. Rocephin, and 500mg. of Cipro, both of which are prescription broad-spectrum antibiotics,were prescribed. Five days of Cipro were prescribed (Exh. C-71). The notes corroborate Bohman?s testimony that he receivedmedical treatment in the form of multiple doses of prescriptionmedication. The injury should have been recorded. Jindal hadconstructive knowledge of the violation, as discussed at item 16. Item69 is affirmed. Citation 2, item 70. The Secretary introduced injury reportsindicating that on November 25, 1998 Brandon Aldridge slipped and cuthis left arm while picking up a piece of metal (Exh. C-289). The recorddoes not reveal whether Aldridge returned to work after his injury;however, on November 30, 1998, Aldridge visited the BaycoastOccupational Medicine Clinic complaining of back pain suffered as aresult of the incident (Exh. C-72). The results of Aldridge?s back examwere within normal limits (Exh. C-72). Dr. Carl C. Davis recommendeddaily physical therapy for three days and placed Aldridge on modifiedduty; Aldridge was not to engage in repetitive lifting of weight over 25pounds (Exh. C-72). Complainant submitted a November 30, 1998?transitional duty job offer? from Labor Ready, Aldridge?s employer. Thejob offer states that Aldridge has been released by his medical providerfor light duty and offers him an office position for 10 hours a week, at$5.15\/hour (Exh. C-289). Jindal contests citation this item, maintaining that theinjuries sustained by Aldridge did not prevent him from performing hisnormal job duties. Prior to Aldridge?s injury he was employed by Jindalas a helper in their sheers department (Exh C-289); after his injury hisphysician released him for work, with a restriction against therepetitive lifting of 25 pounds. Aldridge did not testify at thehearing, and nothing in the evidence indicates whether Aldridge?s job asa helper involved the repetitive lifting of 25 pounds. This judge cannotinfer from the physician?s report that Aldridge was \/unable\/ to performall or any part of his normal assignments. Although Labor Ready offeredAldridge a transfer to light duty, nothing in the evidence indicateswhether Aldridge needed or accepted that offer. This judge notes that onthe same day the offer of transitional employment was made, a LaborReady representative completed an accident investigation report in whichthe investigator quoted Aldridge as promising to ?start paying attentionto the job (Exh. C-289). This judge declines to infer from Labor Ready?soffer of transitional employment that Aldridge was unable to, or eventhat he did not resume his normal duties at Jindal on December 1, 1998. The Secretary has failed to carry her burden of proof on thisitem, and it will be vacated. Citation 2, items 71 through 77. Jindal admits that it knew,or should have known that the injuries cited at citation 2, items 71through 77 should have been recorded. The cited injuries, which occurredon March 2, June 3, June 17, June 29, August 12, November 10 andDecember 3, 1998 were not recorded on the OSHA 200 log as required underthe Act, and items 71 through 77 are affirmed. Citation 2, item 78. Complainant introduced an accidentreport stating that on April 21, 1998, Theresa Holub strained her rightshoulder lifting 50-60 pounds of steel (Exh. C-81). Holub?s medicalrecords indicate that on April 24, 1998, she was diagnosed with shoulderstrain and given a prescription for Dolobid (Exh. C-82). The Physician?sDesk Reference states that Dolobid is a non-steroidal anti-inflammatorydrug used to treat mild to moderate pain and relieve the inflammation,swelling, stiffness, and joint pain. The starting dose is 1,000milligrams, followed by 500 milligrams every 8 to 12 hours, depending onthe individual. Dr. John D. Dang released Holub with instructions thatshe was not repetitively lift 20 pounds (Exh. C-82). Kathy Cowart, therisk manager from Holub?s employer, Meador Staffing Service, testifiedthat Holub was placed on light duty for six days (Tr. 410). This judge finds it more likely than not that theprescription Holub received was for more than one dose. Moreover, therecord indicates that she was placed on light duty for six days and didnot return to her assigned duties at Jindal as a result. Her injury wasrecordable. Jindal had constructive knowledge of the violation, asdiscussed at item 16, and item 78 is affirmed. Citation 2, item 79. Jindal does not contest item 79. Thatitem alleges that Jindal failed to record a work related injury thatoccurred on June 8, 1998, though it knew, or should have known that theinjury was recordable. Item 79 is affirmed. Citation 2, item 80. Christopher Soraiz testified that whilehe worked at Jindal, he dropped a tool onto his right hand, causing itto swell (Tr. 470, 473). Soraiz reported the injury on April 22, 1998(Exh. C-85). Dr. Louis F. Puig examined Soraiz on April 23, 1998 (Exh.C-86). Puig released Soraiz for restricted work, advising him not tolift over 20 pounds, push or pull over 30 pounds, or repetitively graspwith his right hand (Exh. C-86). Soraiz testified that his job includedpainting shelves and rearranging tools (Tr. 471). Soraiz testified thathis job normally included lifting weights of over 20 pounds and pushingand\/or pulling items weighing 30 pounds (Tr. 472). Soraiz is righthanded, and could not paint while unable to grasp with his right hand(Tr. 472-73). Soraiz was released from restricted duty on April 28, 1998(Exh. C-86). According to Soraiz, the injury to his hand prevented himfrom performing portions of his normally assigned duties during the timehis motion was restricted. Jindal maintains that Soraiz is not acredible witness and argues that his injury did not prevent him fromperforming his normal job duties. This judge finds no reason to discredit Mr. Soraiz?stestimony. Such testimony establishes that his injury was recordable dueto the restriction of motion which resulted therefrom. Jindal hadconstructive knowledge of the violation, as discussed at item 16. Item80 is affirmed. Citation 2, items 81 through 86. Jindal admits theseviolations. Items 81 through 86 allege that Jindal failed to record workrelated injuries which occurred at its plant on February 11, March 14April 14, May 15, and June 7, 1998 and on September 15, 1999. BecauseJindal admits that it knew, or should have known that the cited injurieswere recordable, items 81 through 86 are affirmed. Citation 2, item 87. On July 30, 1999, Shaun Bishop, aprecision flame cutter, suffered a burn to his left eye (Tr. 492-93;Exh. C-258). Bishop visited the Baycoast Occupational Medicine Clinic,where he received a prescription for Cortisporin ophthalmic solution,and released for return for limited duty. Bishop was not to perform anyduties requiring depth perception, and was to wear dark glasses forthree days (Tr. 493-94; Exh. C-100). Bishop testified that he told thephysician that there was no way he could do his assigned job with theuse of only one eye. Bishop stated that he was told to take three daysoff work and, if the problem resolved itself, the doctor would releasehim for work (Tr. 494). On August 5, Bishop returned to Baycoast, andwas released from care (Exh. C-100). Bishop testified that he returnedto Jindal, but that his depth of field perception was not the same, andthat he could no longer cut steel plate within the precise parametersrequired by the quality control department (Tr. 494). Bishop testifiedthat he was eventually transferred out of the department (Tr. 494-95). Jindal contests citation this item, maintaining that theinjuries sustained by Bishop did not prevent him from performing hisnormal job duties, citing a physician?s report, which found that theburn to Bishop?s eye was completely resolved, and that the eye appearedcompletely normal. Mr. Bishop worked as a precision steel cutter atJindal for only one month prior to the time of the accident (Exh.C-258), and the record is silent on Bishop?s prior training and\/orexperience. On the existing record, this judge is unable to determinewhether Bishops inability to perform as a precision cutter resulted fromthe cited injury. The record does establish, however, that the injury to hiseye forced Bishop to take off three days that he would otherwise haveworked. As the injury resulted in lost work days, its should have beenrecorded (\/See, \/Blue Book, Exh. C-403, pp. 48-49). Jindal hadconstructive knowledge of the violation, as discussed at item 16. Item87 is affirmed. Citation 2, items 89 through 94. Jindal does not contestthese items, which refer to work related injuries sustained at theJindal plant on January 14, February 9, June 11, August 5, September 1,and October 22, 1999. Though Jindal knew, or should have known, that thecited injuries were recordable, they were not recorded in the OSHA 200log. Items 88 through 94 are affirmed. Citation 2, item 95. Accident reports indicate that on July25, 1999, Bernal Hendrickson suffered a laceration to his right kneewhen it was struck by a metal plate (Exh. C-115, C-265). Medical recordsindicate that Hendrickson visited the Baycoast Clinic on August 11,1999, at which time the cut was found to be infected. The treatingphysician prescribed Keflex, identified by the Physician?s DeskReference as a cephalosporin antibiotics prescribed for bacterialinfections (Exh. C-116). A Labor Ready accident report states thatHendrickson was to take the medication for one week (Exh. C-265). Because Hendrickson was prescribed multiple doses of aprescription medication, Footnote this injury wasrecordable. Jindal had constructive knowledge of the violation, asdiscussed at item 16. Item 95 is affirmed. Citation 2, item 96. Complainant introduced accident reportsindicating that on August 24, 1999, Bernal Hendrickson was injured whenhot metal slag splashed into his right eye. The documents state thatHendrickson?s eye was flushed, but that on August 25, 1999, he visitedthe Baycoast Clinic, where he was diagnosed with a corneal abrasion andreleased for modified duty (Exh. C-118, C-266). The medical releasestates that Hendrickson was restricted from activities requiring depthperception and\/or driving of company vehicles (Exh. C-118, p. 1). As aresult of the medical restrictions, Hendrickson?s employer, Labor Readyoffered him transitional, light duty, office work . Hendrickson refusedthe offer. (Exh. C-117, p. 2). A Baycoast illness activity andinstruction sheet states that Hendrickson was released for work, withoutrestrictions, on August 26, 1999 (Exh. C-118, p. 2). A workerscompensation injury report indicates that Hendrickson returned to workon August 26,1999 (Exh. C-117, p. 1). Jindal contests citation 2, item 96. Jindal maintains thatthe injury suffered by Bernal Hendrickson did not prevent him fromperforming his normal job duties. At the time of his injuryHendrickson?s was employed in Jindal?s ?flumes?department (Exh C-266, p.1). The record does not reveal whether Hendrickson returned to workafter the incident on August 24. After seeing his physician on August25, the physician released him for work, with a restriction against workrequiring depth perception, or driving of company vehicles. Hendricksondid not testify at the hearing, and nothing in the evidence indicateswhether his assigned duties in the flumes department required driving ordepth perception. This judge cannot infer from the physician?s reportthat Aldridge was \/unable\/ to perform all or any part of his normalassignments. Although Labor Ready offered Aldridge a transfer to lightduty on August 26, Hendrickson turned the offer down, apparentlyreturning to work at Jindal following his physician?s removal of anywork restrictions. The Secretary has failed to carry her burden of proof on thisitem, and it will be vacated. Citation 2, items 97 through 103. Jindal does not contestthese items, which cite Jindal for failing to record injuries thatoccurred on January 11, February 23, June 25, August 2, August 23,September 17, and December 8, 1999. Because Jindal admits it knew, orshould have known the cited items were recordable, items 97 through 103are affirmed. Citation 2, item 104. On October 19, 1999, Tempie Mizesuffered a contusion to her left wrist after dropping a pressure hose onit (Exh. C-274). Ms. Mize sought medical attention at the BaycoastClinic, where she was advised to limit the use of her left hand for fourdays (Exh. C-134, p. 4). On October 22 Mize returned to Baycoast, whereshe told medical staff that she had returned to work, and resumed hernormal activities, despite their advice to modify her activities (Exh.C-134, p. 2). On that occasion, Mize received instructions to wear abrace or splint on the wrist until 10\/25 (Exh. C-134, p. 1). As a resultof her physician?s recommendations, Mize?s employer, Labor Ready offeredher a transitional, light duty position. Mize declined the offer (Exh.C-133, p. 2). Workers? compensation documents show no break in Mize?semployment (Exh. C-133, p. 1; C-274, p. 3). Jindal contests citation 2, item 104. Jindal maintains thatthe injury suffered by Tempie Mize did not prevent her from performingher normal job duties. At the time of her injury Mize?s was employed asa laborer, cleaning Jindal?s basement (Exh C-274, p. 1). After seeingher physician on October 19, the physician released her for work, withinstructions to modify her activity to minimize the use of her leftwrist. Mize did not testify at the hearing and nothing in the evidenceindicates whether her assigned duties required repetitive, or excessiveuse of her left wrist. Mize did tell medical personnel that shecontinued to perform her normal activities after sustaining the injury.Although Labor Ready offered Mize a transfer to light duty on October22, Mize turned the offer down, apparently returning to work at Jindal.This judge cannot infer from Labor Ready?s offer of light duty that Mizewas \/unable\/ to perform all or any part of her normal assignments whilewearing a brace. However, Complainant has introduced a February 6, 1998Compliance Letter, in which the Secretary interpreted medical treatmentto include the use of casts, splints and\/or orthopedic devices designedto immobilize a body part (Exh. C-405, p. 15). Ms. Mize?s injury isrecordable because she was ordered by her physician to wear a brace onher left wrist. Jindal had constructive knowledge of the violation, asdiscussed at item 16. Item 104 is affirmed. Citation 2, items 105 through 109. Jindal does not contestthese items. Recordable injuries cited therein occurred on February 26,April 14, April 28, September 21, and October 11, 1999. Jindal admits itknew, or should have known that the cited injuries were recordable, andthese five violations are affirmed. Citation 2, item 110. On May 6, 1999, Ocie Woods, millwrighthelper, was injured when a piece of metal lodged in his left eye (Tr.423; Exh. C-280). Woods sought medical attention at the Baycoast Clinic,where his eye was flushed with saline solution. Dr. Carl Davisprescribed 2 drops of Cortisporin ophthalmic solution for four days(Exh. C-144). The Physician?s Desk Reference states that Cortisporin isa combination of the steroid, hydrocortisone, and two antibiotics. It isa prescription drug used to relieve inflammatory conditions such asirritation, swelling, redness, and general eye discomfort, and to treatsuperficial bacterial infections of the eye. Jindal maintains that the injured employee in this case, OcieWoods, was treated with ?first aid,? based on his testimony at thehearing, at which time Mr. Woods testified that he believed Dr. Davisgave him Neosporin, a non-prescription antibiotic (Tr. 423). The medicalrecords clearly that indicate Cortisporin was prescribed. That Mr. Woodsrecalls a similar sounding and acting medication is not fatal to theSecretary?s case. Jindal had constructive knowledge of the violation, asdiscussed at item 16. Item 110 is affirmed. Citation 2, items 111 through 113. Jindal admits it knew orshould have known that the cited injuries, occurring on January 28, 1999and July 27, and October 21, 1999 should have been recorded on the OSHA200 log. These three items will be affirmed. Citation 2, item 114. On June 24, 1999, Greg Golden, ageneral laborer at Jindal, dropped a block on his left big toe (Ex.C-281). Golden sought treatment at the Baycoast clinic on the followingday, where the treating physician instructed Golden to wear a ?woodenshoe? for four days (Exh. C-150, p. 1). On June 28, Golden was releasedfor a ?trial of regular activity? (Exh. C-150, p.2). Jindal maintains that the injury sustained by Greg Golden didnot prevent him from performing his normal job duties. There is, infact, no evidence establishing what Greg Golden?s normal job dutiesconsisted of. Complainant argues, however, that in a February 6, 1998Compliance Letter, the Secretary interpreted medical treatment toinclude the use of casts, splints and\/or orthopedic devices designed toimmobilize a body part (Exh. C-405, p. 15). Complainant maintains thatMr. Golden?s injury was recordable on that basis alone. There is noevidence in this record indicating that the purpose of a wooden shoe isto immobilize, rather than to merely protect a damaged toe. In theabsence of such evidence there is no basis to support this item. Item114 is vacated. Citation 2, items 115 through 122. Jindal admits therecordability of these items, which cite injuries sustained at itsfacility on January 25, January 28, February 9, March 9, March 14, March18, April 12, and April 22, 2000. Because those items were not recordedon the OSHA 200 log.Willfulness The Commission has defined a willful violation as one?committed with intentional, knowing or voluntary disregard for therequirements of the Act or with plain indifference to employee safety.?\/Valdak Corp.\/, 17 BNA OSHC 1135, 1136, 1993-95 CCH OSHD ?30,759, p.42,740 (No. 93-239, 1995), \/aff’d,\/ 73 F.3d 1466 (8th Cir. 1996). Aseries of disparate violations may be found willful based on evidencethat such violations are part of a deliberate pattern, practice, orcourse of conduct. \/See, Kaspar Wire Works, Inc. (Kaspar), \/18 BNA OSHC2178, 2000 BNA OSHC ?32,134 (No. 90-2775, 2000), \/appeal filed\/, No.00-1392 (D.C. Cir. Sept. 26, 2000). The Secretary need not show that theemployer had an evil or malicious motive to show willfulness. ?The stateof mind required for a willful violation need be only knowing,voluntary, or intentional.? \/Id. \/at 2183-84. \/Temporary Laborers\/through October 1999.\/\/.\/Jindal admitsits was its deliberate practice not to record injuries sustained bytemporary laborers. It argues that its practice was a good faithmisinterpretation of the OSHA guidelines referring to temporary workers,and so cannot, as a matter of law, be found willful. The Blue Bookstates, in relevant part:If [a temporary laborer is] subject to the supervision of the usingfirm, the temporary help supply service contractor is acting merely as apersonnel department for the using firm, and the using firm must keepthe records for the personnel supplied by the service. If the temporaryworkers remain subject primarily to the supervision of the supplyservice, the records must be kept by the service. In short, the recordsshould usually be kept by the firm responsible for the day-to-daydirection of the employee?s activities. Gary Jones testified that, prior to advising CraigWetherington not to record injuries to temporary laborers, he reviewedChapter IV of OSHA?s Blue Book. He determined Jindal was not responsiblefor recording any injuries suffered by temporary laborers, because theywere employees of the staffing agencies that provided them (Tr. 561-62,588-90). Jones claimed to believe that, at one time, Labor Readyprovided supervision for their own employees. His description of therelationship with Labor Ready was: ?We asked for a welder. They sent usa welder. We said: ?Here?s where you will be working, here?s the weldingmachine.? And they began to work. . ..? (Tr. 595). Phil Billeaudeau, thebranch manager of Labor Ready,the primary personnel agency that suppliedtemporary labor for both Saw Pipes and Jindal,testified that laborerssupplied by Labor Ready worked under Jindal foremen; it was Jindal?sresponsibility to supervise the workers Labor Ready provided (Tr. 233).Jones also testified that he based his advice on his belief that LaborReady was recording the injuries of its own employees (Tr. 590).Footnote Jindal argues that its decision not to record injuriessustained by temporary laborers is not willful as a matter of law,relying on \/Froedtert Memorial Lutheran Hospital, Inc. (Froedtert)\/,1999 WL 503823 (O.S.H.R.C.), in which the judge found that, thoughdeliberately declining to record injuries suffered by temporaryemployees, the Respondent?s occupational health coordinator lacked therequisite ?heightened awareness? of the illegality of her actionsnecessary to support a finding of willfulness. As a threshold matter this judge notes that \/Froedtert\/ is anunreviewed judge?s opinion without precedential value. If \/Froedtert\/has any legal effect, it is of providing notice to employers that whilea temporary laborer performing duties in furtherance of the usingemployer?s regular business under the supervision of the hiringemployer,work related injuries and\/or illnesses suffered by suchtemporary laborer must be recorded by the employer on whose premises theinjury occurred. \/See; Corbesco, Inc. v. Dole\/, 926 F.2d 422 (5th Cir.1991). This judge notes that in an earlier case, \/Southern ScrapMaterials Co., Inc. (SSM), \/1997 WL 735352 (O.S.H.R.C.), also cited byJindal, the judge reached a conclusion nearly identical to that in\/Froedtert\/. In \/SSM \/Judge Welch held that the plain wording of thestandard focuses on the injuries and illnesses \/for the establishment,\/and that the purpose of the OSHA 200 log is to identify the types ofinjuries and the equipment used at the time the injuries occurred.\/SSM,\/ like \/Froedtert, \/held that the hiring employer was responsiblefor recording any illnesses or injuries to workers working at itsfacility, while performing the hiring employer?s work. \/Id.\/ In any event, Jindal?s reliance on \/Froedtert\/ is misplaced.Though it is true that a finding of willfulness is not justified wherethe employer had a good faith opinion that the violative conditionsconformed to the requirements of the cited standard, the Commission hasheld that the test of good faith for these purposes is an objective one.The employer?s belief concerning a factual matter, or as here,concerning the interpretation of a standard, must have been reasonableunder the circumstances. \/Calang Corp.\/, 14 BNA OSHC 1789, 1987-90 CCHOSHD ?29,080 (No. 85-319, 1990). It is abundantly clear that LaborReady, and the other temporary labor contractor with whom Jindal dealt,acted merely as conduit to provide labor for Jindal. Jindal was the firmresponsible for the day-to-day direction of the employees? activities.According to the plain language of the Blue Book, Jindal was the firmresponsible for keeping the required OSHA injury and illness records.That Labor Ready recorded injuries sustained by the temporary workers itprovided does not affect Jindal?s duty under the standard.For Jones, whois an attorney, and who worked in the employee relations and compliancedepartment at Brown & Root before joining Saw Pipes (Tr. 555, 585), tohave interpreted the Blue Book in any other way is not onlyunreasonable, but incredible. The record establishes that CraigWetherington, who was knowledgeable in safety and health matters, andwho was hired to act as Jindal?s safety manager, was aware from his hiredate that Jindal had a duty to record such injuries. He conveyed thisinformation to Jones, who insisted Wetherington under report injuries orrisk losing his job. Finally, Wetherington,who was ultimately responsible forfilling out the OSHA 200 logs through November 1999, admitted that hedeliberately, and knowingly, \/i.e. willfully,\/ failed to record injuriesinvolving temporary laborers, in contravention of OSHA injury reportingrequirements. \/Employee Laborers\/through October, 1999 \/. CraigWetherington also admitted that he deliberately under-reported employeeinjuries on the OSHA 200 logs for 1998, and 1999. He claimed to becomplying with Jindal?s reporting policy, a policy that he believed, andI find to have been formulated by Gary Jones. He believed that hismandate was to record on the OSHA 200 logs only cases for which a claimhad been filed with Workers? Compensation. Jindal maintains that GaryJones never devised such a policy. In support of its contention, Jindalpoints to the absence of a 1:1 relationship between its Worker?sCompensation claims and employee injuries reported on the OSHA 200(Jindal?s Post Hearing Brief, p. 5-11). Jindal notes that more than halfthe injuries on the 200 log were reported to OSHA, but not to Workers?Compensation. This judge does not find Jindal?s argument persuasive. Suchmathematic inconsistency does not rebut Wetherington and White?stestimony that Jindal intentionally under reported injury and illnessinformation to OSHA. The Secretary need not prove that the deliberateunder reporting actually followed a particular, discernable pattern.\/See, Kaspar, supra.\/ Supervisory Misconduct. The employer is responsible for thewillful nature of its supervisors? intentional misconduct to the sameextent that the employer is responsible for its supervisors? knowledgeof violative conditions. \/Tampa Shipyards, Inc.,\/15 BNA OSHC 1533,1991-93 CCH OSHD ?29,617 (Nos. 86-360, 86-469, 1992). Once the Secretaryhas made a prima facie showing of willfulness based on the actions ofthe employer?s managerial personnel, the onus is on the employer torebut that showing by establishing that the failure to the manager tofollow proper procedures was unpreventable. In particular, the employermust establish that it had relevant work rules that it adequatelycommunicated and effectively enforced. \/See; Consolidated FreightwaysCorp.\/, 15 BNA OSHC 1317, 1991-93 CCH OSHD ?29,500 (No. 86-531, 1991).This Jindal has completely failed to do. In its brief, Jindal points to the testimony of vicepresident Joe Hayes, and plant manager Doug Gates,in which each statethat they would have disciplined the safety managers, had they realizedthat injuries were not being properly recorded (Tr. 618-19, 271,respectively). However, at the hearing, both Gates and Hayes testifiedthat, though the safety manager ostensibly reported to them, they had noway of knowing whether the records were being properly maintainedbecause they had no expertise in safety and health matters (Tr. 254,271, 339, 616). According to Hayes, the safety manager had completecontrol of Jindal?s safety effort; it was solely the safety manager?sresponsibility to keep Jindal in compliance with OSHA regulations (Tr.616). That duty was never clearly communicated to Wetherington orMcIntosh, however. Wetherington testified that he was never providedwith a formal job description; he was only told that he would be dealingwith basic safety operations (Tr. 50). McIntosh discerned his job dutiesmainly from review of Wetherington?s files, and specifically deniedbeing assigned responsibility for OSHA compliance (Tr. 316-17, 364).Neither Gates nor Hayes ever monitored either safety manager?sperformance, or took any affirmative steps to discover whether thesafety manager was competently discharging his duties (Tr. 263, 623-24).As conditions stood, Jindal?s upper management was completely insulatedfrom any knowledge about the management, or, in this case, themismanagement of the safety department, unless it was reported to themby the safety managerhimself. And that is exactly what transpired here. The recordestablishes that Wetherington put both Gates and Hayes on notice that hewas recording injuries improperly based on instructions from Gary Jones.Wetherington and White complained to Gates that Wetherington had beeninstructed to improperly report injuries. Wetherington complained toHayes about an injury to a temporary employee that he believed shouldhave been reported. Rather than looking into the matter, both Gates andHayes referred Wetherington back to Jones, the originator of theimproper policy. Though Jindal maintains that Jones was a Saw Pipesemployee who had no role whatsoever in Jindal?s managerial hierarchy,Wetherington, White, Gates and McIntosh unanimously testified that Joneswas the final authority in matters relating to Jindal?s injuryreporting, and acted accordingly. Neither Jones, nor anyone in Jindal?supper management made any attempt to change the lines of authority. It is clear from the record that Jindal failed to instruct ormonitor its safety manager in any way. Its management completelyabrogated its obligation to ensure compliance with OSHA regulations,referring all its safety manager?s questions to Gary Jones, an employeeof a sister company. Because the failure of Jindal?s safety manager tofollow proper procedures was not unpreventable, his willful conduct isimputed to Jindal. Willful items 1 through 6, 8 through 16, 18 through 24, 27through 31, 33 through 40, and 42 through 46, involving injuriessustained by Jindal employees during Craig Wetherington?s tenure, areaffirmed. Items 71 through 87, 89 through 92, 94 and 95, 97 and 98, 100through 103, 105, 107 through 112 and 114, all of which involve injuriesincurred by temporary laborers during Wetherington?s tenure, areaffirmed as willful violations of the Act. Items 93, 104, 106 and 113 concern injuries sustained bytemporary laborers during October 1999. At that time Jindal had nosafety manager. Lisa White testified that she covered the safetymanager?s position until David McIntosh was hired in November (Tr. 168).White stated that she investigated only one injury during that period(Tr. 168-69). White knew that the injury was recordable under OSHAcriteria; however, she did not record the injury because Jindal?s policywas not to report injuries sustained by temporary laborers (Tr. 137-40;Exh. C-170). The failure to record is cited at item 93, and was properlyclassified as willful, for the reasons discussed above. Items 104, 106 and 113 also involve recordable injuries totemporary laborers that occurred during October 1999. The evidenceestablishes that it was the accepted practice at Jindal not to conductfollow up on injuries involving temporary workers, because such injurieswere never recorded. Because Jindal?s established practice was thedirect cause of these violations, this judge finds that they wereproperly classified as willful. \/November 1999 through May 2000.\/ Though he was hired asJindal?s safety manager, David McIntosh denied any responsibility forcompleting OSHA 200 logs. McIntosh did complete them, because he knewthe logs were required by law, and because he knew no one else wasmaintaining them. McIntosh admitted he realized Jindal wasunder-reporting injuries,but denied that he ever made a consciousdecision not to record an otherwise recordable injury. McIntosh specifically denied deliberately failing to recordan injury merely because the injury was suffered by a temporary employee(Tr. 373). Some injuries involving temporary workers do appear on the2000 OSHA 200 logs beginning in January (Exh. R-3, R-9). After learningthat Labor Ready?s Phil Billeaudeau told Lisa White in mid to late1999that it was Jindal?s responsibility to record any injuries incurredon Jindal?s property, (Tr. 222, 228),McIntosh told management, in aFebruary 2, 2000 Turn Report, that his research confirmed Jindal?sresponsibility for recording injuries and illnesses sustained bytemporary laborers working at the Jindal plant (Tr. 335; Exh. C-385). This judge finds McIntosh?s testimony that he had noresponsibility for the OSHA 200 logs to be disingenuous. McIntosh knewthat OSHA required the logs be kept; his predecessor kept the logs inprevious years; he was aware that no one else was responsible for thelogs. It is clear that, despite any clear instructions on the issue,McIntosh knew the OSHA 200 logs fell within his responsibilities assafety manager. The evidence demonstrates that he first began keepingthe log on December 23, 1999, basing his entries on information compiledby Craig Wetherington. In his turn reports, McIntosh stated his intentto recreate injury and illness information for the period afterWetherington?s departure, andto fill in the gaps in the logs at a laterdate. This he failed to do. Only two injuries were recorded betweenDecember 23, 1999 and the following February when the OSHA log seems tohave again come to McIntosh?s attention. Ten of the 13 injuries recordedfor the first half of 2000 were recorded between March 1, and April 21,2000 (Exh. R-2; C-400). Because of McIntosh?s negligent recordingpractices, approximately half of the injuries occurring on his watchwere never reported. McIntosh blames his sporadic reporting on timeconstraints, and on the failure of supervisory personnel to reportinjuries to him in a timely manner. McIntosh insists that he neverdecided not to record an injury sustained by a Jindal employee, andnever complied with Jindal?s unwritten practice of reducing injury andillness numbers by excluding temporary laborers from the log. This record paints a picture of a safety manager who wasinattentive to the point of being negligent, resulting in the grossunder reporting of injuries on the OSHA 200. Because Jindal nevermonitored McIntosh?s performance in any way, it could not expect todiscover or to prevent OSHA violations which resulted from hisnegligence. Jindal is, therefore, responsible for McIntosh?s failure tocomply with the Act. However, to establish willfulness under Commissionprecedent, the Secretary must prove, by a preponderance of the evidence,that McIntosh and\/or Jindal were more than negligent. She must show thatMcIntosh, and through him, Jindal, had a ?heightened awareness? of theillegality of his actions, and that his actions were knowing, voluntaryor intentional. This they failed to do. In \/Kaspar, supra\/, the Commission was able to infer anintent to under-record where only 1 in 8 injuries were recorded for thecited period, resulting in a 4.3% injury rate. The Commission did notbase its decision solely on the sheer number of unrecorded cases,however. Rather a comparison of prior years? recording and injury ratesconvinced the Commission that Kaspar deliberately ?chose? to changetheir recording practices.\/Id.\/ at 2182-84. Because logs kept by thesame record-keepers showed injury rates of up to 40% in earlier years,the Commission found it incredible that the consistent under-recordingfor which Kaspar was cited resulted from mere negligence orcarelessness. The Commission could reach no other conclusion than thatKaspar?s record-keepers knowingly ceased recording injuries during therelevant period. \/Id.\/ In this case, McIntosh maintains he never chose not to recorda given injury; Jindal maintains that the Secretary failed to introduceany evidence establishing that his failure to comply with OSHAregulations was anything more than carelessness. McIntosh was hired by astart up company which never had an effective reporting program inplace. McIntosh had been Jindal?s safety manager for only seven monthswhen the OSHA investigation began.OSHA had not previouslyinspectedJindal?s injury and illness logs, or otherwise placed McIntosh,or Jindal on notice of specific recording requirements. Because hispredecessor had actively engaged in a practice of under-recording OSHAinjury rates, McIntosh inherited a recording system based on deception.McIntosh?s belated start at bringing Jindal into compliance with OSHArecord keeping requirements in December, 1999, and his abandonment ofthe logs until the following March, when a spate of entries were made,including injuries sustained by temporary workers, do not suggest anintent not to report. Rather it suggests inattentiveness, negligence,and a lack of urgency in establishing a system under which all injuriesand illnesses could be accurately tracked and correctly recorded. The Secretary has shown that McIntosh knew his predecessorunder-reported injuries on OSHA logs. The Secretary has established thatLisa White told McIntosh that Jindal?s unwritten policy was to report toOSHA only injuries which were incurred by Jindal employees, and whichwere also turned over to Workers? Compensation. The Secretary did notshow, by a preponderance of the evidence, that McIntosh followed theunwritten policy, or ever deliberately refrained from recording aninjury he knew was recordable. McIntosh recorded 47% of recordableinjuries for the first half of 2000, up from Wetherington?s 16% for thepreceding year. McIntosh?s included injuries not submitted to Workers?Compensation, as well as injuries sustained by temporary laborers on theOSHA log. These facts, coupled with his denial of wrongdoing, allmilitate against finding that his under-reporting was intentional, orresulted from his adherence to the unwritten policy. The Secretary did not carry her burden in establishing thatthe remaining failures to record were willful. In her complaint, theSecretary alleges, in the alternative, that the record keepingviolations are ?serious.? The Commission, however, has generallyclassified recordkeeping violations as other-than- serious.\/See, Kaspar,supra; Caterpillar, \/ 15 BNA OSHC at 2176-78, 1991-93 CCH OSHD at pp.42,010-12, fn. 16. Even though recordkeeping inaccuracies ?may affectemployees by misleading them about the nature of their workingconditions and by withholding information from organizations, othergovernmental agencies and individuals performing research in the safetyand health field. . ..? \/Johnson Controls, \/16 BNA OSHC 1048; 1993 CCHOSHD ?30,018 (No. 90-2179, 1993), there is rarely evidence that suchviolations give rise to a \”substantial probability\” of death or seriousphysical harm as is required under ?17 of the Act. Because Complainantfailed to introduce any evidence that the cited recordkeeping violationsbore a direct relationship to employee safety at Jindal?s work site,items 47 through 66 and 63 through 66, all of which occurred afterMcIntosh became Jindal?s safety director will be affirmed asother-than-serious violations. Penalties The Secretary proposed a penalty of $1,062,000 for Jindal?srecord keeping violations. While the Secretary has often exercised herauthority to group related violations and propose a single penalty for anumber of related violations, she chose not to do so here. Rather theviolations were individually assessed to increase the total penalty. The$1,062,000 proposed penalty is inappropriate regardless of how it wasderived. In determining the penalty amount, the single most importantfactor is the gravity of the violation. It is clear that the gravity ofthis group of violations is based on Respondent?s deliberate decision tounder-report certain types of injuries, which resulted in a highpercentage of unreported injuries (Tr. 537). Footnote Because of theirimportance in monitoring workplace safety and measuring theeffectiveness of safety programs,recordkeeping violations play animportant part in ensuring the safety of the American workforce.However, in proposing a total recordkeeping penalty of over $1,000,000the Secretary overstates the gravity of these violations. Even under theSecretary?s theory of the case, Respondent reported major injuries toWorkers? Compensation as well as to OSHA while only the more marginal,or less serious injuries went unreported. A review of the unreportedinjuries tends to support this. Moreover, the Secretary did not provethat Jindal?s under-reporting actually immunized them from inspection.\/See, \/Secretary?s Post Hearing Brief, p. 40-42, Exh. C-407). At best,had the injuries been properly reported, Jindal would have been placedon a ?supplemental? list of employers who might have been targeted forinspection in 2000 had the local OSHA area office found time. \/Id. \/OSHA?s CO admitted that the area office did not perform many programmedinspections, and mainly responded to complaints, injuries andfatalities, and that Houston area office might also schedule aprogrammed inspection for a business in a hazardous industry, such asJindal?s (Tr. 532-34). Based on a review of the violations, I cannot find that thedeliberate nature of the violations, or the number of violationsjustifies a penalty in excess of $1,000,000.00. While it is clear thatthe Secretary may propose cites multiple penalties for separateviolations of the recordkeeping standard, Commission review of theproposed penalty is \/de novo,\/ and the judge has discretion to assess asingle penalty if deemed appropriate. \/See, Pepperidge Farm, Inc.\/, 17,BNA OSHC 1993, 1997 CCH OSHD ?31,301; \/citing, Miniature Nut and ScrewCorp.\/ 17 BNA OSHC 1557, 1996 CCH OSHD ?30,986 (No. 93-2535, 1996).Taking into account the Jindal?s size, over 250 employees, the very lowgravity of the violations, and the absence of any evidence of prior OSHAinspections (Tr. 525-526), this judge finds that a penalty of $70,000 isappropriate. To effectuate the penalty, all willful items are groupedunder one willful violation and assessed the maximum penalty of $70,000. With respect to the record keeping items that were found tobe other-than-serious rather than willful, the gravity was overstatedfor the reasons noted above. All non-willful record keeping items willbe grouped, and a single penalty of $7,000, the maximum allowed, will beassessed.Spoliation Prior to the hearing Complainant moved for a finding thatRespondent had spoliated evidence and requested that a negativeinference be drawn. In effect, Complainant alleges Respondentintentionally destroyed documents requested during discovery;Complainant asked that record keeping violations she believe would havebeen established by the missing documents be affirmed. The motion wasdenied with leave to raise the matter and present evidence at the hearing. The case relied upon by Complainant, \/Caparotta v. EntergyCorp.\/ 168 F3d 754, 756 (5^th Cir. 1999), requires a finding of badconduct by the opposing party before an adverse inference can be drawn.Complainant has failed to establish that such documents werepurposefully withheld, as opposed to inadvertently misplaced, as Jindalsuggests. Having failed to establish bad conduct the motion is denied.ORDER1. Willful citation 2, items 1 through 6, alleging violations of1904.2(a),are AFFIRMED.2. Willful citation 2, item 7 is WITHDRAWN.3. Willful citation 2, items 8 through 16 are AFFIRMED.4. Willful citation 2, item 17, is VACATED.5. Willful citation 2, items 18 through 24are AFFIRMED.6. Willful citation 2, items 25 and 26 are VACATED.7. Willful citation 2, items 27 through 31are AFFIRMED.8. Willful citation 2, item 32, is VACATED.9. Willful citation 2, items 33 through 40are AFFIRMED.10. Willful citation 2, item 41 is WITHDRAWN.11. Willful citation 2, items 42 through 46 are AFFIRMED.12. Citation 2, items 47 through 61 are AFFIRMED as ?other thanserious? violations of the Act.13. Willful citation 2, item 62 is WITHDRAWN.14. Citation 2, items 63 through 66,are AFFIRMED as ?other thanserious? violations of the Act..15. Willful citation 2, item 67, is VACATED.16. Willful citation 2, items 68 and 69,are AFFIRMED.17. Willful citation 2, item 70, is VACATED.18. Willful citation 2, items 71 through 87,are AFFIRMED.19. Willful citation 2, item 88 is WITHDRAWN.20. Willful citation 2, items 89 through 95,are AFFIRMED.21. Willful citation 2, item 96, is VACATED.22. Willful citation 2, items 97 and 98 are AFFIRMED.23. Citation 2, item 99 is AFFIRMED as an ?other than serious?violation.24. Willful citation 2, items 100 through 113, are AFFIRMED.25. Willful citation 2, item 114, is VACATED.26. Citation 2, items 115 through 118, are AFFIRMED as ?other thanserious? violations.27. A single penalty of $70,000.00 is ASSESSED for all itemsaffirmed as willful.28. A single penalty of $7,000.00 is ASSESSED for all itemsaffirmed as other-than-serious.29. The partial Settlement agreement disposing of willful citation2, items 123, 124, 125, and 126, having been posted, and not objectedto, is hereby approved, and incorporated into this order. \/s\/ JamesH. Barkley Judge,OSHRC Dated: January 11, 2002″