YELVINGTON WELDING SERVICE

OSHRC Docket No. 15958

Occupational Safety and Health Review Commission

October 16, 1978

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

William L. Townsend, Jr., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

Respondent, Yelvington Welding Service, was issued two citations on November 3, 1975, as the result of an inspection conducted two weeks earlier. The inspection was conducted two weeks after the State of Florida had informed the Secretary of Labor of a fatal injury suffered by a man while working for respondent on January 9, 1975. The first citation alleges that respondent failed to comply with the regulation at 29 CFR 1904.8 by not filing a report of the workman's death, which allegedly was caused by the violation alleged in the second citation. The second citation alleges that respondent was in serious violation of section 5(a)(1) n1 of the Act n2 by permitting an employee, on or about January 9, 1975, to make welding repairs underneath a suspended trailer-mounted fertilizer hopper that was not secured or adequately blocked. Following the filing of a notice of contest, complaint, and answer, respondent moved to dismiss [*2] the citations because they were not issued within the six month period required by section 9(c) n3 of the Act. Administrative Law Judge Joseph L. Chalk granted the motion on the ground urged by respondent. The Secretary's petition for review was granted and the Judge's decision was directed for review under the authority granted by section 12(j) of the Act. We conclude that the citations were timely. n4

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n1 The section provides as follows:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

n2 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

n3 Section 9(c) provides that "[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation."

n4 In its answer, respondent contends that it was not an employer within the meaning of the Act and did not affect interstate commerce when the accident occurred. We do not consider these contentions because they involve factual questions that cannot be answered until an evidentiary hearing has been held.

[*3]

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I

The reporting regulation requires an employer to report to the Area Director of the Occupational Safety and Health Administration within 48 hours after an accident that is fatal to at least one employee or causes the hospitalization of five or more employees. n5 Respondent contends that the Act's limitation period begins to run immediately upon the passage of the 48th hour after an accident that is not reported because that is when a failure to report has occurred and is complete. The Secretary agrees that a failure to report within 48 hours is a violation, but he disputes the contention that the violative conduct is complete at the 48th hour. Rather, the Secretary interprets his reporting regulation to include a general obligation to report that continues until a report is made, or the Secretary becomes aware of the accident. The additional requirements, such as when, to whom, and in what detail reports must be made, may be violated independently of, but do not derogate from, the general obligation. Under this interpretation of the regulation, the statute of limitations did not begin to run in [*4] this case until October 10, 1975, when the Secretary was notified of the accident by the State of Florida.

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n5 The regulation provides as follows:

Within 48 hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of five or more employees, the employer of any employees so injured or killed shall report the accident either orally or in writing to the nearest office of the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The reporting may be by telephone or telegraph. The report shall relate the circumstances of the accident, the number of fatalities, and the extent of any injuries. The Area Director may require such additional reports, in writing or otherwise, as he deems necessary, concerning the accident.

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We believe that the Secretary's interpretation is correct. The Secretary has not created a new concept of continuing violation. Acts of omission have been held to be continuing in such diverse [*5] areas as labor law, n6 tort law, n7 and criminal law. n8 The Secretary's interpretation is the one most consistent with the general purpose of assuring safe and healthful working conditions and, as will be discussed more fully below, the specific purpose of providing the Secretary with assistance in performing his enforcement duties n9 (section 8(c)(1) & (2) of the Act).

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n6 E.g., United States v. Universal CIT Credit Corp., 344 U.S. 218 (1952) (failure to pay minimum wage during work week is a continuing offense, not five separate offenses).

n7 E.g., Gillette v. Tucker, 65 N.E. 865, 67 Ohio St. 106 (1902) (failure of physician to remove sponge negligently left inside of patient after operation is a continuing tort as long as physician-patient relationship exists).

n8 E.g., United States v. Cores, 356 U.S. 405 (1958) (failure of alien crewman to leave the United States within the thirty days permitted by his visa is a continuing violation); United States v. Franklin, 188 F.2d 182 (7th Cir. 1951) (failure of alien to apply for registration and to be finger-printed within thirty days after arriving in the United States is a continuing violation).

n9 Under respondent's interpretation, an employer would not be obligated to report an accident if the fatality it causes does not occur within 48 hours. Such an interpretation is unacceptable.

[*6]

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The reason for the 48-hour reporting requirement is to provide the Secretary with prompt notification of serious accidents so that he can take timely action to avoid further injuries. F.F. Green Construction Co., 73 OSAHRC 54/F1, 1 BNA OSHC 1494, 1973-74 CCH OSHD para. 16,991 (No. 1015, 1973). Contrary to the assumption implicit in respondent's interpretation of the regulation, the Secretary's need for reports does not cease after 48 hours. Cf. The Anderson Company, 8 OSAHRC 675 (No. 5157, 1974) (ALJ) n10 (Secretary conducted inspection after reading in newspaper about unreported fatal accident that had occurred one month earlier). Enforcement of the reporting regulation is especially important because reports reveal particularly hazardous working conditions that might otherwise continue unchecked, such as the conditions alleged in this case. We cannot read the reporting regulation to require the filing of a report within 48 hours after a fatality and, at the same time, deny the Secretary the ability to enforce the regulation effectively by requiring him to discover a failure to [*7] report within six months. n11 We conclude, therefore, that the first citation was issued within the six month limitation period required by the Act.

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n10 Although this case is discussed by the Bureau of National Affairs and Commerce Clearing House, these services did not include the administrative law judge's decision or all the relevant facts.

n11 Significantly, the Secretary did not discover the fatality suffered by the man working for respondent; as noted above, he was informed of the fatality by the State of Florida.

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The second citation raises a more difficult issue. The violation alleged in the citation was a discrete event that occurred more than six months before the citation was issued. Section 9(c) of the Act appears on its face to require dismissal of the citation. If the limitation period were so applied, however, it would conflict with the practical application of, and Congressional intent that gave rise to, subsections 8(c)(1) n12 and (2) n13 of the Act, which, along with section 8(g)(2), n14 direct [*8] and authorize the Secretary to promulgate a regulation requiring employers to report fatal and other major accidents. Under such circumstances, the basic inquiry is one ". . . of legislative intent whether the right shall be enforceable . . . after the prescribed time. . . ." Midstate Horticultural Co. v. Penna. R. Co., 320 U.S. 356, 360 (1943). The six month limitation period was not, however, discussed by the House or the Senate. "To arrive at a decision, we have therefore to put to ourselves the question, Which choice is it the more likely that Congress would have made?" Burnet v. Guggenheim, 288 U.S. 280, 285 (1935).

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n12 The subsection provides, in pertinent part, as follows:

Each employer shall make, keep and preserve, and make available to the Secretary . . . such records regarding his activities relating to this Act as the Secretary . . . may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.

n13 The subsection provides that:

The Secretary . . . shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restrictions of work or motion, or transfer to another job.

n14 The subsection provides that, "[t]he Secretary [of Labor] . . . shall . . . prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this Act. . . ."

[*9]

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Employers at approximately five million establishments were required to provide employees with safe and healthful working conditions when the Act was passed, but the Secretary was authorized to hire fewer than one thousand employees to enforce this duty. The President's Report on Occupational Safety and Health at 2 and 9 (1972). Congress recognized that the Secretary would not be able to fulfill his enforcement duties adequately if he were forced to rely solely on his personnel. See Legislative History of the Occupational Safety and Health Act of 1970, Comm. Print, Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., June 1971, at 151-152, 399, 860 (Legislative History). Congress therefore provided several methods by which employers and employees could assist the Secretary, n15 such as permitting representatives of employers and employees to accompany a compliance officer during an inspection (section 8(e) of the Act) and permitting employees, without fear of reprisal, to notify the Secretary of work areas in need of inspection (sections 8(f)(1) and 11(c) of the Act). [*10] There was no assurance, however, that inspections conducted according to a schedule, even when aided by employee notifications, would reveal the most hazardous working conditions. The Senate and House sought to cure this problem in part by directing the Secretary to require employers to file reports of major accidents. Legislative History 1189-90. The 412 inspections conducted during the first quarter of this year as a result of receiving accident reports n16 demonstrates that the importance Congress attached to the report requirement was not misplaced. In light of the importance of this requirement to the approach to worker safety adopted by Congress, we believe that Congress would not have precluded the Secretary from inspecting a workplace and ordering abatement of a working condition more than six months after it caused an employee's death if the cause of the delay between the death and the inspection were the employer's failure to comply with a reporting regulation promulgated in conformance with a Congressional direction. No one section of a statute should be read in isolation from others. Thus in our opinion the six month limitation on actions by the Secretary must [*11] be interpreted in conjunction with the reporting requirement of section 8(c)(2) of the Act.

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n15 See Legislative History at 151, 430, 549-550, 822.

n16 Bureau of National Affairs, Inc., 8 Occupational Safety and Health Reporter No. 1 at 23 (June 1, 1978).

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The purposes of the statute of limitations are not undermined by tolling the statute in this case. The primary purposes of a limitation upon the time within which an action may be commenced are to insure repose by giving stability to human affairs and to spare a person the burden of preparing a defense after evidence has been lost, memories have faded, or witnesses have departed or died. Burnett v. New York Cent. R. Co., 380 U.S. 424 (1965). The policy of repose frequently is outweighed, however, where the interests of justice require vindication of the plaintiff's rights, as where a plaintiff has not slept on his rights but was prevented from asserting them. Id. at 429. It is clear from the discussion above that the Secretary did not sleep [*12] on his rights. Rather, he acted promptly after being informed of the fatal injury. It is also clear that respondent's failure to report the fatality had the practical effect of preventing the Secretary from acting sooner than he did. In addition, it is unlikely that evidence will become stale in cases involving workplace accidents that cause death or require the hospitalization of five or more employees. Reports are required by and prepared for state workmen's compensation programs, insurance companies, hospitals, and coroners. An employer should not be permitted to avoid responsibility for exposing employees to hazardous work conditions by breaching the obligation to report a fatality caused by the hazardous conditions. To hold otherwise would reward an employer for violation of the Act in that by failing to report he would escape the attention of the agency designated to enforce the statute. We do not believe that the establishment of a six month limitation on actions by the Secretary requires such an anomalous result.

Recent decisions under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq., support our conclusion. Employees must file charges [*13] of age discrimination within 180 days after the allegedly unlawful practice. 29 U.S.C. 626(d)(1). Recognizing the likelihood that employees might not know the rights created by ADEA, Congress provided that,

Every employer . . . shall post and keep posted . . . upon its premises a notice to be prepared or approved by the Secretary setting forth information as the Secretary deems appropriate to effectuate the purposes of this chapter.

29 U.S.C. 627. The Secretary requires a notice to be posted in a prominent place on an employer's premises. 29 CFR 850.10. The 180 day period is treated as a statute of limitation, which is tolled if a charging party's employer fails to provide the required notification. Bonham v. Dress a Industries, Inc., 569 F.2d 187 (3d Cir. 1978); Charlier v. S.C. Johnson & Sons, Inc., 556 F.2d 761 (5th Cir. 1977); Dratt v. Schell Oil Company, 539 F.2d 1256 (10th Cir. 1976), aff'd. by an equally divided Court, 98 S.Ct. 600 (1977). "In reaching this result, the courts have relied principally on the 'design and purposes' of the ADEA. . . ." Kephart v. Institute of Gas Technology, No. 77-2055 (7th Cir., August 24, 1978). The courts [*14] have found particularly persuasive recognition that a strict application of the limitation period would make it impossible to achieve the Congressional goal of insuring that protected employees be informed of their rights. Id. at 5. It is clear from the discussion above that the Secretary is in a position similar to that of an employee who, under ADEA, is unlikely to discover that he has a right to enforce unless properly notified by the employer. Like the courts, we have resolved this problem by looking to the design and purposes of the Act, particularly the Congressional goal of insuring that the Secretary be informed of workplace deaths and injuries so that he might initiate necessary proceedings.

Accordingly, the Judge's decision and order are vacated and this case is remanded for further proceedings consistent with this opinion.

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I agree that the citation alleging the violation of the reporting requirement was timely issued for the reason that the violation is continuing at least until such time as the Secretary receives notice of the fatal accident. n1 However, I dissent [*15] from the majority's conclusion that the statute of limitations as to the alleged violation of section 5(a)(1) was tolled by Respondent's failure to comply with the reporting requirement. For the reasons that follow, I would remand for evidence on the question of fraudulent concealment or misrepresentation.

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n1 I would in addition observe that accepting Respondent's argument would lead to the anomalous result that an employer who fails to report by the 48th hour is in violation of the reporting requirement but is no longer in violation on the 49th hour and thereafter.

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With respect to the citation for violation of section 5(a)(1), the majority concludes that the statute of limitations provided in section 9(c) of the Act must be read together with the reporting regulation at 29 C.F.R. 1904.8 such that the statute is tolled if the failure to report frustrates the Secretary's inspection. In the majority's opinion, Congress attached overriding importance to the reporting requirement. They conclude that this Congressional [*16] intent would be frustrated if section 5(a)(1) were not read together with the reporting requirement in such a manner as to toll the statute of limitations contained in section 9(c).

In arriving at this conclusion, the majority relies upon the legislative history of section 8(c)(1) and (2) of the Act as well as section 8(g)(2). Section 9(c), however, as the majority concedes, is clear on its face. Therefore my colleagues violate the most fundamental principle of statutory construction by referring to extrinsic sources of statutory interpretation. United States v. Rice, 327 U.S. 742, 752-53 (1946); United States v. Turner, 246 F.2d 228, 230 (2d Cir. 1957). Moreover they do not even rely upon any legislative history as to section 9(c) since there is none, and the legislative history upon which they do rely does not support their conclusion.

The majority refers to the "reporting requirement" of section 8(c)(2) as if Congress mandated the promulgation of an immediate reporting requirement. On the contrary, Congress imposed only a requirement for regulations regarding periodic reporting and generally authorized, in section 8(c)(1), regulations necessary for enforcement. [*17] Indeed, the legislative history at pages 1189-90 to which the majority refers is the conference report's restatement of the statutory provisions and does not contain any Congressional expression that the Act provides for an immediate reporting requirement. In other words, by treating the periodic reporting requirement as a requirement for immediate reporting, my colleagues invent a legislative history that does not exist in reality. n2

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n2 The other matters cited in the lead opinion do not support their conclusion. Among other things, the majority refers to inspection statistics for the first quarter of 1978. They fail to mention that a total of 13,232 inspections were conducted that quarter, of which 5,344 were in response to an employee complaint. Hence, the supposedly significant reporting requirement was responsible for about 3.1 percent of all inspections whereas the right of employees to report hazardous situations or possible violations, which are specific statutory rights, were responsible for almost half the total inspections. Thus, the statistical importance of the employer reporting regulation is equally a fiction.

[*18]

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The majority then turns to the principles governing the tolling of a statute of limitations and holds that the mere failure to report will toll the statute. By so concluding, they ignore the fundamental principle that a statute of limitations is tolled upon a fraudulent or deliberate concealment of material facts. Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946); Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977). As the Court stated in Lukenas v. Bryce's Mountain Resort, Inc., 538 F.2d 594, 597 (4th Cir. 1976):

The grounds on which a statute of limitations may be tolled are fixed by federal standards . . . and the burden of establishing a factual basis for meeting those standards rests on the plaintiffs . . . . To make such tolling, the plaintiff under the federal rule must show not only that he exercised due diligence to discover his cause of action prior to the running of the statute but also that the defendant was guilty of "some affirmative act of fraudulent concealment [which] frustrated discovery notwithstanding such diligence." (citations and footnote omitted). [*19]

The court went on to say:

Mere ignorance or lack of knowledge on the part of the plaintiffs is not sufficient to suspend the operation of the statute. To suspend the statute of limitations in this case, there would of necessity have to have been some positive, affirmative action on the part of the defendant, designed to conceal the existence of liability and to operate in some way upon the plaintiffs to prevent or delay the bringing of the suit. Mere silence by the defendant, absent any fraudulent acts or representations, is not such concealment as would prevent the running of the statute.

538 F.2d at 597 and n. 15, quoting Hall v. Bryce's Mountain Resort, 379 F. Supp. 165, 169-70 (W.D. Va. 1974).

I would therefore hold that the statute of limitations in section 9(c) is only tolled if the Secretary shows that an employer fraudulently concealed a violative condition. In this case, therefore, the Secretary must show that Respondent knew of the accident reporting requirement of 29 C.F.R. 1904.8 and did not file the report in order to conceal the accident from the Secretary. n3

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n3 At least two courts have indicated that misrepresentation is an element to be considered in determining whether there has been compliance with time periods specified in the Act. Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975); Bloomfield Mechanical Contracting, Inc. v. OSHRC, 519 F.2d 1257 (3d Cir. 1975).

[*20]

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The Secretary argues that fraud on Respondent's part should be presumed from its failure to file the required accident report. It is, however, well established that fraud is never presumed, but must be proven by the party asserting it. United States v. Wunderlich, 342 U.S. 98 (1951).

There is no reason to depart from this rule because, as the Secretary argues, the violation is of a statutory obligation. The purpose of the Act is to assure employee safety and health. To this end, Congress empowered the Secretary to issue citations for workplace hazards. But Congress also concluded that such citations shall not be issued after the expiration of six months following the occurrence of any violation. Although the legislative history is silent on this point, I believe it is reasonable to assume that Congress balanced the need for repose and stability derived from a statute of limitations with the remedial purposes of the Act and concluded that a six month statute of limitations was justified. Indeed I do not believe that the remedial purposes of the Act are necessarily hindered by a requirement [*21] that the six month statute of limitations is only tolled upon a showing of fraudulent concealment. The six month statute of limitations only precludes the Secretary from issuing citations for those conditions which have been abated or have ceased to exist for at least six months prior to the Secretary's citations. Contrary therefore, to the majority's holding, a rule based upon fraudulent concealment does not result in precluding the Secretary from "ordering abatement". Since that rule only applies when the alleged violative conditions were not in existence at the time of the Secretary's inspection, abatement has been achieved. Moreover, if the conditions do reoccur, the Secretary is not precluded from reinspecting and issuing citations at that point with appropriate penalties and abatement orders. Indeed such conditions might justify the issuance of a willful citation with penalties of up to $10,000. n4

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n4 I stress that the fact the accident in this case occurred more than 6 months before the citation was issued would not bar the citation if the codition alleged were a continuing one, or had at least existed within the 6-month period prior to issuance of the citation.

[*22]

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Other considerations also lead me to conclude that the majority's conclusion should be rejected. First, to accept the Secretary's argument would allow him to overcome the statue of limitations merely by imposing a reporting requirement, and under his broad statutory authority he arguably could overcome section 9(c) simply by requiring reports in a wide variety of situations. Additionally, I see no reason to distinguish between a case where a fatality has occurred and one in which a fatality could have resulted, but fortunately did not, on the ground that a report is required in the former situation but not in the latter. Second, my colleagues note that the Secretary's investigatory resources are limited, and that Congress was aware of this problem. By precluding the Secretary from prosecuting citations pertaining to conditions which have not existed for a reasonable period of time, the six month statute of limitations can serve to focus the Secretary's limited resources toward achieving the abatement of existing hazards. Finally, I disagree with the majority's concludion that the Secretary is in [*23] a position similar to that of an employee with a possible cause of action under the Age Discrimination in Employment Act. Such an employee may be totally barred from seeking redress for an act of discrimination against him under the statute of limitations in that Act. Charlier, supra, 556 F.2d at 765. The Secretary's position is different, however, for the fact that the Secretary may not be able to cite an employer for a violation that occurred in the past does not detract from his ability to further the purpose of the Act by making a new inspection for existing hazards. And as I have noted, the Secretary's own experience with the reporting requirement at issue demonstrates that the requirement is not essential to his enforcement of the Act. n5

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n5 See note 4 infra.

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Accordingly, I would remand for a hearing on whether Respondent's failure to file the accident report was a deliberate attempt to conceal the accident from the Secretary. If the Secretary is unable to present such proof, the citation should be [*24] vacated as barred by the statute of limitations. n6

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n6 Respondent contends that the issue of fraudulent concealment was not timely raised because it was not alleged in the pleadings, whereas Federal Rule of Civil Procedure 9(b) requires fraud to be specifically averred. Contrary to Respondent's argument, the the Secretary's cause of action is not based on fraud and therefore Fed. R. Civ. P. 9(b) is inapplicable. Rather, statute of limitations is an affirmative defense to be pleaded by the Respondent. Fed. R. Civ. P. 8(c). Therefore, it is not necessary that the Secretary plead fraudulent concealment. In any event, the case is still in the pleading stage, and if necessary the pleadings could be amended.

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