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OSHRC Clarifies Who Is Responsible Executive for Injury Recording Purposes

Sigel_Gabrielle_COLORBy Gabrielle Sigel


The federal Occupational Safety and Health Review Commission ("OSHRC") recently clarified who can qualify as a "company executive" authorized to certify the accuracy of a company's annual summary of workplace injuries and illnesses. Secretary of Labor v. C.P. Buckner Steel Erection Inc., No. 10-1021, OSHRC, Apr. 25, 2012. The annual summary is required by regulations under the Occupational Safety & Health Act, 29 CFR 1904.32.

Unless specifically exempted by regulation (29 CFR 1904.1), at the end of each calendar year, every employer must review all workplace injuries and illnesses that had been recorded on an OSHA 300 Log detailed regulatory directions. 29 CFR Part 1904. The OSHA 300 Log must be reviewed for accuracy and corrected where necessary. After review, the employer must then create a summary of the 300 Log information, on a separate form called an OSHA 300-A Summary. The 300-A Summary form must be certified as to its accuracy by a "company executive." 29 CFR 1904.32(b)(3). Specifically, the company executive must certify that "he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete." Id. OSHA regulations define a "company executive" as: (a) the company's owner if it is a sole proprietorship or partnership; (b) a company officer; (c) the "highest ranking company official working at the establishment;" or (d) the immediate supervisor of that highest ranking company official. 29 CFR 1904.32(b)(4).

Buckner's Safety and Risk Manager who was the individual who certified its OSHA 300-A Annual Summary in three consecutive years 2007-2009. An Occupational Safety and Health Administration ("OSHA") compliance officer issued a citation to Buckner, asserting that this manager was not a qualified "company executive" under the regulations. After Buckner contested the citation, the federal Administrative Law Judge ruled in OSHA's favor, against the employer. On appeal to OSHRC, however, the Commissioners disagreed and granted judgment in Buckner's favor. OSHRC first rejected Buckner's argument that the regulation's "highest ranking company official" language was impermissibly vague and could not be the basis for enforcement. OSHRC determined that this phrase was easily understood as the person with the "greatest overall authority," such as the company president, and that any company's management could determine whom that person is. However, OSHRC ruled that, according to the facts submitted by stipulation, Buckner's Safety and Risk Manager qualified as an "officer of the corporation." The manager had been hired by the company's president, was approved as the "safety officer" by shareholders, and the president believed that the manager had full authority to sign and submit reports and other documents, binding the company with respect to government agencies. Therefore, because the 300-A Summary Forms had been signed by a corporate officer, Buckner had complied with the regulation. OSHA's citation issued to Buckner was vacated in its entirety.