“SECRETARY OF LABOR,Complainant,v.SUN SHIP, INC.,Respondent.LODGE 802, INTERNATIONAL BROTHERHOODOF BOILERMAKERS, IRON SHIPBUILDERS,BLACKSMITHS, FORGERS AND HELPERS,Authorized EmployeeRepresentative.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 Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Sun Ship, Inc., has petitioned for review of a decision by CommissionJudge William E. Brennan finding it in willful violation ofrecordkeeping disclosure requirements at 29 C.F.R. ?? 1904.7(a) and(b)(1).[[1]] We conclude the Secretary’s citation is barred by thesix-month limitation on issuance of citations under section 9(c) of theAct, 29 U.S.C. ? 658(c).[[2]]At the time of the investigation and citation Sun Ship was engaged inthe business of ship building and repair at its principal place ofbusiness in Chester, Pennsylvania. On March 7, 1979, a representativeof Lodge 802 of the International Brotherhood of Boilermakers, IronShipbuilders, Blacksmiths, Forgers and Helpers (\”Lodge 802\”) requestedSun Ship to provide it with Sun Ship’s OSHA form 200 logs and summariesof occupational injuries and illnesses (\”logs\”) for 1975 through thedate of the request. The parties stipulated that the logs contained abrief description of each injury or illness and\/or diagnosis of medicalcondition, along with an employee’s name, the parts of the bodyaffected, date of onset of the condition or injury, and in some cases abrief statement of the possible cause of the injury or illness. SunShip provided Lodge 802 with the requested logs, except that theemployees’ names were deleted in accordance with Sun Ship’sconfidentiality policies. In response to a letter from Lodge 802 datedMarch 26, 1979, Sun Ship provided the Lodge with its OSHA form 200 logfor January-April 1979, with the names deleted. On April 16, in aletter to Lodge 802, Sun Ship’s president explained that Sun Ship haddeleted the names because it did not feel justified in releasinginformation which could be construed to be private or of a medicalnature with personal identifiers attached.On May 23, 1979, Lodge 802 filed a complaint with OSHA that Sun Ship hadfailed to provide it with complete logs. On August 17, an OSHAcompliance officer visited Sun Ship to investigate the complaint. Hetold Sun Ship that deletion of names from the logs was \”an apparentviolation\” and was \”already citable.\” He did not conduct a physicalinspection of the Sun Ship facility or records but stated that Sun Shipshould mail to the OSHA area office copies of its logs and OSHA form 101illness or injury reports.[[3]] In response to a Sun Ship inquiry, thecompliance officer stated that he could not guarantee that the recordswould be withheld from Lodge 802 or treated as confidential.On September 5, 1979, OSHA’s area office received a letter from SunShip’s manager of safety and health informing it of Sun Ship’sconfidentiality policy and requesting that an OSHA official sign anon-disclosure agreement that accompanied the letter before Sun Shipwould provide the records to OSHA. OSHA did not respond to the letter.More than eight months later, on May 19, 1980, the compliance officerand Sun Ship officials held a meeting to discuss the matter again. TheOSHA area director advised Sun Ship before the meeting that heconsidered it to be a closing conference. (Closing conferences areheld before the conclusion of inspections under OSHA’s _Field OperationsManual_, Ch. III.D.9.) At the meeting the compliance officer statedthat unless Sun Ship turned over the documents that had been requestedright away, the company would be cited for a willful violation. Therewas further discussion of the issues and the meeting endedinconclusively as to whether Sun Ship would change its position. Thenext day, May 20, 1980, Sun Ship was issued a citation alleging willfulviolations of 29 C.F.R. ? 1904.7(a) and (b)(1).Judge Brennan affirmed the citation and assessed a penalty of $5,000 foreach violation. The judge held that the citation was timely issuedunder section 9(c) of the Act because the OSHA area director did notfinalize his belief that Sun Ship had committed a violation until theresults of the compliance officer’s meeting of May 19, 1980, wereconveyed to him. He then authorized the citation and it was issued thenext day. Alternatively, the judge concluded that the citation wasissued within the six-month period because Sun Ship’s refusals to supplythe complete records requested by OSHA constituted a continuingviolation that never ceased before the citation was issued.We must decide whether the citation is time-barred by the six-monthlimitation period specified in section 9(c) of the Act. We disagreewith the judge’s ruling that the six-month period permitted for citationbegan only when the OSHA area director finalized his belief that aviolation had occurred. As Sun Ship notes, that theory could extend thelimitations period indefinitely after a violation occurs, even where, ashere, 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 thatits investigation is complete and that a citation should issue.We also disagree with the judge’s ruling that the alleged violationswere continuing in nature. The cited standards require the employer toprovide certain records \”upon request\” to various persons including theSecretary’s representatives and employee representatives. A violationoccurs when there is a failure to refusal to comply with a lawfulrequest. In this case the failure or refusal giving rise to the allegedviolations occurred at specific times: when Sun Ship refused todisclose employee names and to produce records in August and Septemberof 1979. Indeed, the Secretary alleges in the citation that theviolations 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 violationoccurred.The Commission has held that the statute of limitations does not beginto run until OSHA discovers or reasonably should have discovered aviolation. In _Yelvington Welding Service_, 78 OSAHRC 84\/D6, 6 BNA OSHC2013, 1978 CCH OSHD ? 23,092 (No. 15958, 1978), the Commission dealtwith an employer’s failure to notify OSHA of an employment accidentfatal to one of its employees. Such a report is required within 48hours of the accident under 29 C.F.R. ? 1904.8. OSHA learned of theaccident more than six months later and promptly issued a citation forthe employer’s failure to report the accident and for a violationrelating to the unreported accident. The Commission rejected theemployer’s argument that the action was barred by the six-monthlimitation because, having failed to report the accident and therebyhaving prevented OSHA from learning of the accident, the employer couldnot avail itself of the limitation period.Here, Sun Ship did not conceal the facts alleged to constitute aviolation. The Secretary had a full opportunity to learn the facts, anddid learn them in time to issue a citation within six months of eachalleged violation. Contrary to the judge’s ruling, the citation here isuntimely under _Yelvington_ because the citation period began to runwhen the Secretary became aware of the facts constituting the allegedviolations.The meeting between Sun Ship and OSHA on May 19, 1980, does not changethe result. OSHA considered the May 1980 meeting to be a closingconference to discuss the previous refusals. OSHA may not revive alapsed cause of action under the cited standards merely by delaying theclosing conference and having the respondent reaffirm its refusal torelease the records. Moreover, as the judge found, the results of themeeting were inconclusive as to whether Sun Ship would change itsprevious position on disclosure. Thus, there is no basis on which toconclude that a separate request was made and refused. _See_ _Local__Lodge No. 1424, IAM v. NLRB_, 362 U.S. 411, 416-17 (1960) (party maynot revive time-barred unfair labor practice charge by reliance on morerecent conduct that does not by itself constitute an unfair labor practice).The citation and proposed penalties therefore are vacated.[[4]]FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: 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 anyrepresentative of the Secretary of Labor for the purpose of carrying outthe provisions of the act, and by representatives of the Secretary ofHealth, Education, and Welfare during any investigation under section20(b) of the act, or by any representative of a State accordedjurisdiction for occupational safety and health inspections or forstatistical compilation under sections 18 and 24 of the act.(b)(1) The log and summary of all recordable occupational injuries andillnesses (OSHA No. 200) (the log) provided for in ? 1904.2 shall, uponrequest, be made available by the employer to any employee, formeremployee, and to their representatives for examination and copying in areasonable manner and at reasonable times. The employee, formeremployee, and their representatives shall have access to the log forestablishment in which the employee is or has been employed.[[2]] \”No citation may be issued under this section after the expirationof six months following the occurrence of any violation.\”[[3]] The form 101 report is entitled \”Supplementary Record ofOccupational Injuries and Illnesses\” and calls for a somewhat moredetailed account of each accident and injury or illness than do form 200logs.[[4]] Commissioner Cleary notes that the holding in this case pertainsonly to those records which were the subject of the 1979 requests byLodge 802.”