SECRETARY OF LABOR,
Complainant,

v.

SUN SHIP, INC.,
Respondent.

LODGE 802, INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIPBUILDERS,
BLACKSMITHS, FORGERS AND HELPERS,

Authorized Employee
Representative.

OSHRC, Docket No. 80-3192

_DECISION_

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

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]]

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  JAN 28 1985

------------------------------------------------------------------------



FOOTNOTES:

[[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.