Authorized Employee

OSHRC, Docket No. 80-3192


Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.


This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

Sun Ship, Inc., has petitioned for review of a decision by Commission Judge William E. Brennan finding it in willful violation of recordkeeping disclosure requirements at 29 C.F.R. 1904.7(a) and (b)(1).[[1]]  We conclude the Secretary's citation is barred by the six-month limitation on issuance of citations under section 9(c) of the Act, 29 U.S.C. 658(c).[[2]]

At the time of the investigation and citation Sun Ship was engaged in the business of ship building and repair at its principal place of business in Chester, Pennsylvania.  On March 7, 1979, a representative of Lodge 802 of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers ("Lodge 802") requested Sun Ship to provide it with Sun Ship's OSHA form 200 logs and summaries of occupational injuries and illnesses ("logs") for 1975 through the date of the request.  The parties stipulated that the logs contained a brief description of each injury or illness and/or diagnosis of medical condition, along with an employee's name, the parts of the body affected, date of onset of the condition or injury, and in some cases a brief statement of the possible cause of the injury or illness.  Sun Ship provided Lodge 802 with the requested logs, except that the employees' names were deleted in accordance with Sun Ship's confidentiality policies.  In response to a letter from Lodge 802 dated March 26, 1979, Sun Ship provided the Lodge with its OSHA form 200 log for January-April 1979, with the names deleted.  On April 16, in a letter to Lodge 802, Sun Ship's president explained that Sun Ship had deleted the names because it did not feel justified in releasing information which could be construed to be private or of a medical nature with personal identifiers attached.

On May 23, 1979, Lodge 802 filed a complaint with OSHA that Sun Ship had failed to provide it with complete logs.  On August 17, an OSHA compliance officer visited Sun Ship to investigate the complaint.  He told Sun Ship that deletion of names from the logs was "an apparent violation" and was "already citable."  He did not conduct a physical inspection of the Sun Ship facility or records but stated that Sun Ship should mail to the OSHA area office copies of its logs and OSHA form 101 illness or injury reports.[[3]]  In response to a Sun Ship inquiry, the compliance officer stated that he could not guarantee that the records would be withheld from Lodge 802 or treated as confidential.

On September 5, 1979, OSHA's area office received a letter from Sun Ship's manager of safety and health informing it of Sun Ship's confidentiality policy and requesting that an OSHA official sign a non-disclosure agreement that accompanied the letter before Sun Ship would provide the records to OSHA.  OSHA did not respond to the letter.

More than eight months later, on May 19, 1980, the compliance officer and Sun Ship officials held a meeting to discuss the matter again.  The OSHA area director advised Sun Ship before the meeting that he considered it to be a closing conference.   (Closing conferences are held before the conclusion of inspections under OSHA's Field Operations Manual, Ch. III.D.9.)  At the meeting the compliance officer stated that unless Sun Ship turned over the documents that had been requested right away, the company would be cited for a willful violation.  There was further discussion of the issues and the meeting ended inconclusively as to whether Sun Ship would change its position. The next day, May 20, 1980, Sun Ship was issued a citation alleging willful violations of 29 C.F.R. 1904.7(a) and (b)(1).

Judge Brennan affirmed the citation and assessed a penalty of $5,000 for each violation.   The judge held that the citation was timely issued under section 9(c) of the Act because the OSHA area director did not finalize his belief that Sun Ship had committed a violation until the results of the compliance officer's meeting of May 19, 1980, were conveyed to him.  He then authorized the citation and it was issued the next day.  Alternatively, the judge concluded that the citation was issued within the six-month period because Sun Ship's refusals to supply the complete records requested by OSHA constituted a continuing violation that never ceased before the citation was issued.

We must decide whether the citation is time-barred by the six-month limitation period specified in section 9(c) of the Act.  We disagree with the judge's ruling that the six-month period permitted for citation began only when the OSHA area director finalized his belief that a violation had occurred.  As Sun Ship notes, that theory could extend the limitations period indefinitely after a violation occurs, even where, as here, OSHA has been fully aware of the facts for at least eight months.  Under the terms of section 9(c), the six-month period begins to run "following the occurrence of a violation," not when OSHA decides that its investigation is complete and that a citation should issue.

We also disagree with the judge's ruling that the alleged violations were continuing in nature.  The cited standards require the employer to provide certain records "upon request" to various persons including the Secretary's representatives and employee representatives.  A violation occurs when there is a failure to refusal to comply with a lawful request.  In this case the failure or refusal giving rise to the alleged violations occurred at specific times:  when Sun Ship refused to disclose employee names and to produce records in August and September of 1979.  Indeed, the Secretary alleges in the citation that the violations occurred on or about the date of the inspection, August 17, 1979, almost nine months before the citation.  Thus, the May 20, 1980, citation was issued more than six months after each alleged violation occurred.

The Commission has held that the statute of limitations does not begin to run until OSHA discovers or reasonably should have discovered a violation.  In Yelvington Welding Service, 78 OSAHRC 84/D6, 6 BNA OSHC 2013, 1978 CCH OSHD 23,092 (No. 15958, 1978), the Commission dealt with an employer's failure to notify OSHA of an employment accident fatal to one of its employees.  Such a report is required within 48 hours of the accident under 29 C.F.R. 1904.8.  OSHA learned of the accident more than six months later and promptly issued a citation for the employer's failure to report the accident and for a violation relating to the unreported accident.  The Commission rejected the employer's argument that the action was barred by the six-month limitation because, having failed to report the accident and thereby having prevented OSHA from learning of the accident, the employer could not avail itself of the limitation period.

Here, Sun Ship did not conceal the facts alleged to constitute a violation.  The Secretary had a full opportunity to learn the facts, and did learn them in time to issue a citation within six months of each alleged violation.  Contrary to the judge's ruling, the citation here is untimely under Yelvington because the citation period began to run when the Secretary became aware of the facts constituting the alleged violations.

The meeting between Sun Ship and OSHA on May 19, 1980, does not change the result.   OSHA considered the May 1980 meeting to be a closing conference to discuss the previous refusals.  OSHA may not revive a lapsed cause of action under the cited standards merely by delaying the closing conference and having the respondent reaffirm its refusal to release the records.  Moreover, as the judge found, the results of the meeting were inconclusive as to whether Sun Ship would change its previous position on disclosure.  Thus, there is no basis on which to conclude that a separate request was made and refused.  See Local Lodge No. 1424, IAM v. NLRB, 362 U.S. 411, 416-17 (1960) (party may not revive time-barred unfair labor practice charge by reliance on more recent conduct that does not by itself constitute an unfair labor practice).

The citation and proposed penalties therefore are vacated.[[4]]



DATED:  JAN 28 1985


[[1]] 1904.7 Access to records.

(a) Each employer shall provide, upon request, records provided for in 1904.2, 1904.4, and 1904.5, for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provisions of the act, and by representatives of the Secretary of Health, Education, and Welfare during any investigation under section 20(b) of the act, or by any representative of a State accorded jurisdiction for occupational safety and health inspections or for statistical compilation under sections 18 and 24 of the act.

(b)(1) The log and summary of all recordable occupational injuries and illnesses (OSHA No. 200) (the log) provided for in 1904.2 shall, upon request, be made available by the employer to any employee, former employee, and to their representatives for examination and copying in a reasonable manner and at reasonable times.  The employee, former employee, and their representatives shall have access to the log for establishment in which the employee is or has been employed.

[[2]] "No citation may be issued under this section after the expiration of six months following the occurrence of any violation."

[[3]] The form 101 report is entitled "Supplementary Record of Occupational Injuries and Illnesses" and calls for a somewhat more detailed account of each accident and injury or illness than do form 200 logs.

[[4]] Commissioner Cleary notes that the holding in this case pertains only to those records which were the subject of the 1979 requests by Lodge 802.