Sun Ship, Inc.

Plain-English summary

Sun Ship built and repaired ships and provided its union with OSHA injury and illness logs after deleting employee names under its confidentiality policy. It later refused to provide complete records to OSHA unless the agency signed a nondisclosure agreement. The judge found two willful record-disclosure violations and assessed $5,000 for each. The Commission held that the six-month citation period began when the refusals occurred and OSHA knew the relevant facts in August and September 1979, not when the agency later completed its investigation. The refusals were discrete events rather than continuing violations, and a delayed closing conference could not revive the expired claims. The Commission vacated both citations and the $10,000 in penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.7(a); 29 C.F.R. § 1904.7(b)(1)
• Outcome: Two willful record-disclosure citations and $10,000 in penalties vacated as time-barred.
• Key point: The six-month limitations period runs from a known refusal to provide records, and OSHA cannot restart it by later revisiting the same refusal.

Full text (OSHRC public release)

Docket No. 80-3192

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.