in context of review of administrative order affecting an employer where improper notice was alleged, "it must be noted that, unless the employer demonstrates that the lack of formal notice was prejudicial, we will not order that the charges be dismissed”
How later courts described this case
- in context of review of administrative order affecting an employer where improper notice was alleged, "it must be noted that, unless the employer demonstrates that the lack of formal notice was prejudicial, we will not order that the charges be dismissed”
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring:
Although I think it was more than likely that, from various ancillary sources suggested in the majority opinion, Dow had actual notice of the cases with which the Secretary was concerned, I have no real objection to remand to determine whether the apparent lack of formal notice in the citation or in the complaint was prejudicial. The Secretary should not be encouraged to become slipshod in what may be important matters of procedure. I have the impression here that at times both sides were playing games, but certainly that can be clarified on remand.
I assume that, if the notice question is resolved in the Secretary’s favor, he may raise again the question of sufficiency of the evidence to support the AU’s determination that eleven of the incidents questioned by the Secretary were not recordable. In this respect, the Secretary has made a persuasive case on this appeal. It may not be probative that Dow recorded no occupational injuries or illnesses among a work force of several hundred people over three years, but it is not surprising that OSHA should vigorously pursue an investigation of such apparently unusual circumstances.
These alleged recordkeeping violations are not trivial. I should think that adherence to the Secretary’s recordkeeping prescriptions is central to the purposes of OSHA, and it is important that administrative and judicial enforcement procedures not become so cumbersome that the record-keeping requirements become a dead letter.