Opinion

Brock v. Dow Chemical U.S.A.

  • 801 F.2d 926
  • 55 U.S.L.W. 2203
Court
Court of Appeals for the Seventh Circuit
Filed
Sep 16, 1986
Status
Published
Author
Cudahy
On the bench
Coffey, Cudahy, Eschbach
Cited by
10 cases

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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