AKM LLC d/b/a VOLKS CONSTRUCTORS, Docket No. 06-1990

THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION REVIEW

SECRETARY OF LABOR, :

Complainant, :

v. : OSHRC DOCKET NO. 06-1990

AKM LLC d/b/a VOLKS :

CONSTRUCTORS, :

Respondent. :

DECISION AND ORDER

This matter is before the Occupational Safety and Health Review Commission (“the Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (“the Act”). The parties in this matter, the Secretary of Labor (“the Secretary”) and AKM LLC d/b/a Volks Constructors (“Volks” or “Respondent”), have filed cross-motions for summary judgment based on stipulated facts. For the reasons that follow, the Secretary’s motion is granted and Respondent’s motion is denied.

Background

The Occupational Safety and Health Administration (“OSHA”) inspected Respondent’s facility in Prairieville, Louisiana, from May 10, 2006 to November 8, 2006. As a result of the inspection, on November 10, 2006, OSHA issued to Volks a 16-item serious citation and a 17-item “other” citation. Respondent contested all items of the citations and the proposed penalties.

On January 8, 2007, before the Secretary filed her complaint, Respondent filed a motion to dismiss Items 1 through 5 of Other Citation 2, which allege violations of OSHA’s record-keeping requirements. Specifically, Items 1 and 2 allege, respectively, 67 and 102 instances of failure to record injuries and illnesses as required, from November 2002 to January 2006. Item 3 alleges that Volks did not review the OSHA 300 log to verify the entries were complete and accurate for the years 2002 to 2005. Item 4 alleges that a company executive of Volks did not certify that he or she had examined the OSHA 300 log and that the annual summary was correct and complete for the years 2002 to 2005. Item 5 alleges that Volks did not post the annual summary for the year 2006 for the period required. The basis of Respondent’s motion to dismiss was that, in view of section 9(c) of the Act and certain Supreme Court and Circuit Court decisions, Items 1 through 5 were untimely. The Secretary filed a response to the motion to dismiss. On February 15, 2007, the undersigned issued an order denying the motion to dismiss.

On January 29, 2007, the Secretary filed her complaint in this matter. On February 26, 2007, Respondent filed a petition for interlocutory review of my order of February 15, 2007. On March 1, 2007, Respondent filed a motion for a stay, or, alternatively, an extension of time to file its answer, based on its petition for interlocutory review. The Secretary filed her opposition to the petition for interlocutory review, and she also filed her opposition to the motion for a stay or an extension of time. On March 29, 2007, Respondent’s petition for interlocutory review was denied. On that same day, Respondent filed another motion for an extension of time to file its answer, which the Secretary did not oppose; the motion stated the parties were engaged in settlement discussions and had made substantial progress in reaching a settlement. On April 2, 2007, the undersigned issued an order granting the motion for an extension of time until April 13, 2007, for Volks to file its answer.

On April 18, 2007, the parties filed a partial settlement agreement resolving all of the citation items except for Items 1 through 5 of Other Citation 2. The parties also filed “Stipulations of the Parties” that addressed the five items not resolved in the settlement agreement. On May 15, 2007, the parties filed their cross-motions for summary judgment based on the stipulated record, and the Secretary’s motion included supplemental stipulations of the parties. On May 29, 2007, Volks filed its response to the Secretary’s motion, and on May 30, 2007, the Secretary filed her response to Volks’ motion. On June 6, 2007, Volks filed a reply to the Secretary’s response.

The Parties’ Stipulations

The “Stipulations of the Parties,” filed April 18, 2007, state as follows:

1. Volks will no longer, for the purpose of these stipulations, contest the allegations of Citation 2, Items 1 through 5, that violations occurred and that the proposed penalties are appropriate, except that: (a) Volks preserves its defense that the items are untimely under Section 9(c) of the Act; (b) Volks does not admit that violations occurred on or about the date of the inspection; and (c) as to Item 1, Volks preserves its defense that the allegations fail to state a claim upon which relief may be granted with respect to whether an OSHA Form 301 was required.

2. With respect to Items 1 and 2, the injuries or illnesses had not been recorded on the Form 301 (“the incident report”) or Form 300 (“the log”) within seven calendar days after the injury or illness dates, which for purposes of this stipulation is the date that Volks received information that a recordable injury or illness occurred. The injuries and illnesses had not been recorded on either form by the date the OSHA inspection was initiated, May 10, 2006.

3. With respect to Item 3, Volks did not by the end of calendar year 2002, 2003, 2004, and 2005 review the OSHA 300 Log for the respective year to ensure that all entries were complete and accurate. The logs had not been reviewed as of the date the OSHA inspection was initiated, May 10, 2006.

4. With respect to Item 4, the annual summaries for the year 2002, the year 2003, the year 2004, and the year 2005 were certified by a person other than a company executive during those calendar years. The certifications by a company executive had not occurred as of the date the OSHA inspection was initiated, May 10, 2006.

5. With respect to Item 5, the annual summary for 2005 was posted only from February 1, 2006 to February 28, 2006.

The parties’ supplemental stipulations filed on May 15, 2007, which were included with the Secretary’s motion for summary judgment, are as follows:

1. The Occupational Safety and Health Review Commission has jurisdiction over this proceeding under Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. Section 659(c).

2. Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. Section 652(5).

3. After an inspection at Respondent’s workplace by an authorized representative of Complainant, Respondent was issued Citation 2, Items 1 through 5, alleging other-than-serious violations of the Act.

4. On December 4, 2006, Complainant received from Respondent a timely notice of intent to contest Citation 2, Items 1 through 5, pursuant to the provisions of Section 10(c) of the Act.

5. Volks Constructors no longer contests the appropriateness of the periods for abatement proposed in Citation 2, Items 1 through 5.

The foregoing stipulations are hereby adopted as my findings of fact and conclusions of law in this matter.

The Cited Standards

Item 1 of Citation 2 alleges 67 instances of failure to record injuries and illnesses as required, in violation of 29 C.F.R. 1904.29(b)(2), which requires the employer to “complete an OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illness entered on the OSHA 300 Log.”

Item 2 of Citation 2 alleges 102 instances of failure to record injuries and illnesses as required, in violation of 29 C.F.R. 1904.29(b)(3), which requires the employer to “enter each recordable injury or illness on the OSHA 300 Log and 301 Incident Report within seven (7) calendar days of receiving information that a recordable injury or illness has occurred.”

Item 3 of Citation 2 alleges a violation of 29 C.F.R. 1904.32(a)(1) for the years 2002 through 2005; the standard requires the employer, at the end of each calender year, to “[r]eview the OSHA 300 Log to verify that the entries are complete and accurate, and correct any deficiencies identified.”

Item 4 of Citation 2 alleges a violation of 29 C.F.R. 1904.32(b)(3), as a company executive did not certify the OSHA logs for the years 2002 through 2005; the standard states that:

A company executive must certify that he or she has examined the OSHA 300 Log and that he or she reasonable believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.

Item 5 of Citation 2 alleges a violation of 29 C.F.R. 1904.32(b)(6), in that the annual summary was not posted for the required period; the standard requires the employer to “post the [annual] summary no later than February 1 of the year following the year covered by the records and keep the posting in place until April 30.”

Discussion

As indicated above, the parties have filed cross-motions for summary judgment, pursuant to Commission Rules of Procedure 40 and 61, 29 C.F.R. §§ 2200.40 and 61, respectively, and Federal Rule of Civil Procedure 56 (“Rule 56”). Rule 61 states, in pertinent part, that:

A case may be fully stipulated by the parties and submitted to the ... Judge for a decision at any time....The submission of a case under this rule does not alter the burden of proof, the requirements otherwise applicable with respect to adducing proof, or the effect of failure of proof. Motions for summary judgment are covered by Fed.R.Civ.P. 56.

Rule 56(c) states that summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” As the Secretary points out, the trier of fact, in making this determination, must draw inferences from the record in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the trier of fact may draw “only those inferences that are legitimate and reasonable....A scintilla of evidence is not enough.” Harbor Ins. Co. v. Schabel Found. Co., Inc., 946 F.2d 930, 935 (D.C. Cir. 1991).

It is clear from the parties’ stipulations and the language of the standards, set out supra, that there is no dispute that the alleged violations occurred. However, Respondent contends the citations were untimely, based on section 9(c) of the Act and on Supreme Court and Circuit Court decisions.

Section 9(c) of the Act provides that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.” As the Secretary notes, however, the Commission has long held that section 9(c) allows the Secretary to “cite an uncorrected violation six months from the date the Secretary discovers, or reasonably should have discovered, the facts necessary to issue the citation.” Arcadian Corp., 20 BNA OSHC 2001, 2013 (No. 93-0628, 2004), citing Kaspar Electroplating Corp., 16 BNA OSHC 1517, 1519 (No. 90-2866, 1993); Johnson Controls, Inc., 15 BNA OSHC 2132, 2136 (No. 89-1614, 1993); General Dynamics Corp., Elec. Boat Div., 15 BNA OSHC 2122, 2127 (No. 87-1195, 1993). There is no contention here that the Secretary should have discovered the alleged violations any earlier than she did.

As the Secretary also notes, in Johnson Controls, the employer was cited for failing to log a recordable injury or illnesses on the OSHA log as required. The Commission rejected the employer’s argument that the six-month limitations period began to run at the original “occurrence” of the alleged record-keeping violation and that it did not “continue” until it was discovered by the Secretary. In so doing, the Commission stated as follows:

Just as a condition that does not comply with a standard issued under the Act violates the Act until it is abated, an inaccurate entry on an OSHA [log] violates the Act until it is corrected, or until the 5-year retention requirement ... expires. Thus, a failure to record an occupational injury or illness as required by the Secretary’s recordkeeping regulations set forth in 29 C.F.R. Part 1904 ... does not differ in substance from any other condition that must be abated pursuant to the occupational safety and health standards in 29 C.F.R. Part 1910....We therefore conclude that an uncorrected error or omission in any employer’s OSHA-required injury records may be cited six months from the time the Secretary does discover, or reasonably should have discovered, the facts necessary to issue a citation.

Johnson Controls, 15 BNA OSHC 2132, 2135-36 (footnote omitted).

Despite the foregoing, Volks contends Items 1 through 5 are time barred, and, in support of its position, cites to numerous cases. The primary cases it addresses are a U.S. Supreme Court case, TRW Inc. v. Andrews, 534 U.S. 19 (2001) (“TRW”), and a D.C. Circuit case, 3M v. Browner, 17 F.3d 1453 (D.C. Cir. 1994) (“3M”). After considering the parties’ arguments with respect to these two cases, and after reviewing the cases myself, I agree with the Secretary that they do not provide a basis for overturning well-settled Commission precedent. As the Secretary notes, these cases were issued before the Commission’s decision in Arcadian Corp., set out supra, and I would assume that, had these cases been considered relevant, the Commission would have addressed them then; in addition, as the Secretary also notes, Volks’ arguments as to section 9(c) are essentially old arguments the Commission has considered and rejected before. Even more significant, as the Secretary points out, neither TRW nor 3M involved section 9(c) of the Act. Rather, TRW involved the statute of limitations that applies to the Fair Credit Reporting Act, which provides for a limited situation in which a discovery rule applies, while 3M involved the general five-year statute of limitations set out at 28 U.S.C. § 2462, which applies to the entire federal government in all civil penalty cases unless Congress specifically provides otherwise. Because these cases do not address section 9(c) of the Act, and based on the Commission precedent noted above, I disagree with Respondent’s position that the citation items are time barred. Furthermore, as a Commission judge, the undersigned is constrained to follow Commission precedent and must do so in this matter.

Respondent makes many other arguments in this matter. For example, Volks contends, as it did in its motion to dismiss, that Johnson Controls does not apply to Item 1 because the “linchpin for the holding of Johnson Controls – a duty to update recordkeeping forms during the five-year retention period (15 BNA OSHC at 2135-36) – is missing from Item 1.” I rejected this argument in my order of February 15, 2007, and I reject it again here. As the Secretary states, and as the excerpt from Johnson Controls set out supra makes clear, the Johnson Controls decision is broadly worded and is not limited to OSHA records that specifically require updating. Volks also contends the 2001 revisions to OSHA’s record-keeping regulations supercede Johnson Controls and similar cases, asserting that the current regulations require updates only as new information is discovered. However, I agree with the Secretary’s statement that “[n]othing in the current regulations changes an employer’s obligation to correct errors or omissions in its OSHA-required injury and illness records.” As the Secretary points out, Respondent was not cited for failing to update its records with newly-discovered information; rather, Respondent was cited for record-keeping errors and omissions that had not been corrected and still existed when the OSHA inspection took place. Respondent’s contention with respect to the 2001 revisions to the record-keeping regulations is also rejected.

Based on the foregoing, I find that Johnson Controls applies in this matter. I further find that, in light of Johnson Controls and the other Commission precedent noted supra, Items 1 through 5 of Other Citation 2 were not time barred. The Secretary’s motion for summary judgment is GRANTED, and Respondent’s motion for summary judgment is DENIED.

ORDER

1. The parties’ Partial Settlement Agreement, which resolves Items 1 through 16 of Serious Citation 1 and Items 6 through 17 of Other Citation 2, is attached hereto and is incorporated by reference, as is my order approving the Agreement.

2. Items 1 through 5 of Other Citation 2, as set out in the body of this decision, are AFFIRMED as other-than-serious violations, based upon the foregoing findings of fact and conclusions of law. A total penalty of $14,300.00 has been proposed for these items. That penalty is appropriate and is accordingly assessed.

/s/

Irving Sommer

Chief Judge

Dated: 06/25/2007

Washington, D.C.