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UNITED STATES OF Iba.MERlCA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW· COMMISSION 

ELAINE L. CHAO, Secretary of Labor. 

United States Department of Labor, 

Complainant, No. 06-1990 

v. 

AKM LLC dba YOLKS CONSTRUCTORS, 

Respondent. 

BRIEF OF THE SECRETARY OF LAB01~ 

January 17, 2008 

GREGORY F. JACOB 

Solicitor of Labor 

JOSEPHM. WQOD'NARD 

AssociatE~ Solicitor for 

Occupational Safe-:y and Health 

MICHAE:~ P. DOYLE~ 

Counsel ror Appella':e Litigation 

ROBERT w. ALDRI(~H 

Attorney 

U.S .. Department of Labor 

Frances :?erkins Blc.g. 

Room S-4004 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210-0001 

(202) 693-5490 

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES ................................................................................. iii 

ISSUES PRESENTED FOR REV1EWllfl,,,.,, .............................................. 1 

STATEMENT OF THE CASE ......................... " ... , ....................................... 1 

A. OSHA:ls recordkeeping regulations are a vital aspect o/the 

stattttory scheme to protect American wOTkeT~~ I • • • .... • • • • • • ... • • • • • • 1 

B. The Secretary cites Volks upon discovering wholesale 

violations of part 1904 recordkeeping regulati:ons ................. 3 

c. The ALJ rejects Volks section 9(c) challenge to Citation 2 

on the basis of controlling Commission precec.lent ................ 5 

ARGUMENT 

A.. Volks violations o/the recordkeeplng regulati"ns set forth at 

29 C.F.R. §§ 1904.29(b)(2J and (b)(3) occurrecl within six 

months o/the citation date (Citation 2, items 1 and 2) ............ 5 

1. The citation items at issue 7.J'Jere timely under 

controlling Commission precedent. . . . . . . . .. .. . . . . . . . .. ... . . .. . ... . 6 

2.. Johnson Controls and General Dynamics 

remain good law ................... 1., ...................................... 7 

a. The 2001 amendmen:~s to the part 1904 

regulations did not abrogate Johnson Controls 

Clrtd ~71~Tal 1)1I11Clrrtics ..................................... t3 

1. The OSH Act and the part 19(J4 regulations 

supply ample evidence that tile duty to 

record is an ongoing one ............................. t3 

2. Th,e Secretary's interpretation of Section 9(c) 

and the part 1904 regulations is entitled 

to deference.................................................... 13 

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b. Subsequent caselaw .'1.as not abrogated 

Johnson Controls anG! General D,ynamics ........ 15 

c.. The Com.mission addressed Volks staleness 

concerns in General r.ynamics ... " ............. "........... 18 

3. Stare decisis counsels in/alloT of reaffirming 

Johnson Controls and General Dynami~s .................. -. 19 

4. Th.e discovery rn.le is not implicated in this case ....... 20 

5. Items 1 and 2 are not duplicative ............ -................ 23 

6. The duty to complete an OSJiA Form 3l) 1 report 

arises whether or not the employer has complied 

with his duty to complete art OSHA Form 300 log."... 25 

B. Volks violations of the recordkee:ping regulations set 

forth at 29 C.F.R. §§ 1904.32(a)(1) and 1904.32(b)(3) 

occurred within six months of the~ citation date. 

(Citation 2, items 3 and 4) ...................................... ro .......... 1 26 

C. Volks failure to post the annual summary for the full 

three-month period in 2006 as re'=luired under 29 C.F.R. 

§ 1904.32(b)(6) was a continuing violation th.roughout 

2006; therefore, the citation in this case, filed in November 

2006, was timely (Citation 2, items 5) .. 11114 •• " ................... 27 

CONCLUSiON ........................................................................ -.. - ........... 30 

CERTIFICATE OF SERVICE 

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TABLE OF AUTHORITIES 

CASES: 

3M v. Browner, 

17 F.3d 1453 (D.C. Cir. 1994) .............................................. 21, 22 

A.E. Staley Mfg, CO, VI Secretary of Labor, 

295 F.3d 1341 (D.C. Cir. 2001) .................................................. 13 

Alfred S. Austin Constr., 

4 BNA OSHC 1166 (No. 4809,1976) .................. " .. , ... " .... , .......... 9 

American Express Co. u. United States, 

262 F.3d 1376 (Fed. Cir. 2001) .. ,"1 .................. "" ... ,.1 ............ 1 •• 114 

Antlwny Crane Rental, Inc. v. Reich, 

70 F.3d 1298 (D.C. 1995) .... H •• ' .................................................. 14 

Arcadian Corp., 

17 BNA OSHe 1345 (No. 93-3270, 1995) ................................... 13 

Bowles v. Seminole Rock & Sand Co., 

325 U.S. 410 (1945) ................................................................... 13 

Cheney R.R. Co., v. ICC, 

902 F.2d 66 (D.C. eir. 1990) ."U'I •••• III •• IIII4I.'.16 .... 11.' ••••••• I ........... 12 

Chevron U,S,A. Inc. v. Echazabal, 

536 U.S. 73 (2002) ...................................................................... 12 

Chevron U.S.A. Inc., v. Natural Resources Def€'1.se Councii', Inc., 

467 U.S. 837 (1984).11 ................................................................ 13, 14 

Connecticut Light & Power Co. v. Secretary of Labor;, 

85 FI3d 89 (2d Cir. 1995) ........................ , ......................... 0 •••••• II ... 18 

Diamond v. United States, 

27 F.2d 1246 (Ct. Cl. 1970) .................. , ..................................... 16 

General Dynamics Corp. Electric Boat Div., 

15 BNA aSHe 2122 (No. 87-1195,1993) ......................... 7, passim 

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General Motors Corp., Inland Div., 

8 BNA OSHe 2036 (No. 76-5033, 1980) ..................................... 3 

Glover v. Standard Fe. Bank, 

83 F.3d 953 (8th eire 2002) ......................................................... 14 

lnteramericas Investments, Ltd. u. Federal Reserve SYS'1 

111 F.3d 376 (5th Cir. 1997) ",..,111,1 •• ,p •••••••••••••••••.•••••••••••••••• 14, 17 

International Un.ion., United Automobile, Aerospace and Af1ricultural 

Implement Workers of America v. OSHA, 938 F.2d 1310 

(D.C. eire 1991) , .......................................................................... 13 

John R. Jurgensen Co. 

2 BNA OSHe 1889 (No. 83-1224, 1986) ...................................... 19 

Johnson Controls} Inc., 

5 BNA OSHC 2132 (No. 89-2614, 1993) .......................... 5, passim 

Leach Corp. v. NLRB, 

4 F.3d 802 (D.C. Cir~ 1995) ........................................................ 14 

Ledbetter v. Goodyear Tire & Rubber Co., 

27 S.Ct. 2162 (2007) 11 ... 11t1 .................................................... 15, 16 

Martin v. OSHRC (CF&I), 

99 U.S. 144 (1991) .......................................................... 13, 14, 17 

MJP Constr. Co.~ 

19 BNA OSHC 1638 (No. 98-0502, 2001) .. ,II'" •• fl .. , •••• lIt •• I.~., ... , •• 24 

Phillips v. United States, 

43 F.2d 438 (11th Cir. 1988) .......... ~ ............................................ 17 

Secretary of Labor u. Twentymile Coal Co., 

411 F.3d 256 (D.C. Cir. 2005) ............................................... 13, 15 

Shock v. District of Columbia Financial Responsibility and Mgmt. 

Assistance Auth., 132 F.3d 775,782 (D.C. CiT. 1998) ................. 11 

Tate v. Slwwboat Marina Casino Partnership, 

431 F.3d 580 (7th eire 2005) ... 0 ••• 0 ... 0" WI .............. 0 ........... 0 ••• 0 •• 0 ••• 19 

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Thennal Reduction Corp .• 

12 BNA OSHe 1264 (No. 81-2135, 1985) ..................................... 2 

Toussie u, United States, 

397 U.S. 112 (1970) .................................................................... 16 

Troy Corp. v. Browner, 

120 F.3d 277 (D.C. Cir. 1997) ... 4' •• II ••• q •• ,- ............. · .................... 10 

TRW Inc. u. Andrews, 

534 U.S. 19 (2001) ....................... , ... 4.,1.4.,1 ••••••••••••.••••••••••••••• 22,23 

United States u. Mead Corp., 

533 U.S. 218 (2001) ............................................. , ..................... 14 

United States v. Stewart, 

104 F,3d 1377 (D.C. Cir. 1997) ...... ,. ........ "4 tiltH III.' .................... 11 

Whetsel v. Network Property Servs.} LLC, 

246 F.3d 897 (7th eire 2001) ...... _. ........ ................... ........ ............ 12 

STATUTES AND REGULATIONS 

28 U.S.C. § 2462 ................................................................... 21,22 

Occupational Safety and Health Act, 

§ 2(b), 29 U.S.C. § 65 1 (b) ................................................... 2 

§ 8, 29 U.S.C. § 657 ........................................................... 2 

§ 8(c)(1), 29 U.S.C. § 6S7(c)(1) .... 11 ...................................... 2 

§ 8(c)(2), 29 U.S.C. § 657(c)(2) ." ..................................... 2,9 

§ 9(c), 29 U .S.C. § 658(c) ......................................... 1, passim 

29 C.F.R .. Part 1904 .... 14.11111 ............................................ 2, passim 

29 C.F.R. 1904.4 ....... 4 •••••••••••••••••••••••••• , •••••••••••••••••••••••••••••••••••••• 9 

29 C.F.R. 1904.6 .. 4 •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 6 

29 C.F.R. 1904.29(b) ..................................................................... 9 

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29 C.F.R. 1904.29(b)(1) ........................................ , ................... 21 9 

29 C.F.R. 1904.29(b)(2) ............... H ............................. 2,3,5,9,25 

29 C.F.R. 1904.29(b)(3) ... 1& .............................................. 2, passim 

29 C.F.R. 1904.32 .................................................................. 3,11 

29 C.F.R. 1904.32(a)(1) ....... q ............................ ., ••• 4 J 10, 11,26,27 

29 C.F.R. 1904.32(a)(2) .............................................................. 11 

29 C.F.R. 1904.32(a)(4) ............. p ............................................... 11 

29 C.F.R. 1904.32(b)(3) ................................................ 2,4,26,27 

29 C.F.R. 1904.32(b)(6) ..................................................... 4, 27,29 

29 C.F.R. 1904.33 ............................................................ __ .... 3,7,10 

29 C.F.R. 1904.33(a) ............................... " ................................ 0. 6 

29 C.F.R. 1904.33(b) .................................... I ••••••• f •••••••••••• , •••••••• 11 

MISCELLANEOUS 

Federal Register, 

66 Fed. Reg. 5916 (Jan. 19,2001) .................................. , ... 6, 11 

66 Fed. Reg. 6023 ............................................................. 15 

66 Fed. Reg. 6025 ............................................................. 24 

66 Fed. Reg. 6031 .. ,., ............................ , .............. ,,' .... ~I ... - •• 24 

66 Fed. Reg. 6043 ......................................................... 1 ••• 11 

66 Fed. Reg. 6042-6048 ........................................ 26,28,29 

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ISSUES PRESENTED FOR REVIEW 

1. Whether the six-month statute of limitationE; set forth in 

section 9(c) of the OSH Act, 29 U.S.C. § 658(c), barred trle Secretary from 

citing Yolks for failing to record injuries and illnesses on the OSHA Form 

300 log and OSHA Form 301 incident report, where the employer had not 

corrected the failures to record as of the date of the inspr:!ction, and the 

five-year period during which the employer was required to maintain 

those records had not yet elapsed. (Citation 2, items 1 Bt; 2) 

2. Whether section 9(c) barred the Secretary from citing Yolks 

in 2006 for its failures to review the OSHA Form 300 log for accuracy 

and to have a company executive certify the logs with reBpect to calendar 

years 2002 through 2005. (Citation 2, items .3 & 4) 

3. Whether section 9(c) barred the Secretary from citing Yolks 

in November 2006 for its failure to post an annual sumnlary of 

recordable injuries and illnesses from February 1, 2006 through April 

30, 2006. (Citation 2, item 5) 

STATEMENT OF THE 'CASE 

A. OSHA)s recordkeeping regulations are a vital aspect of the statutory 

scheme to protect American workers. 

This case raises questions about the enforcement of OSHA's part 

1904 recordkeeping regulations. Thus, it is useful to bri~fly review the 

purpose and mechanics of those regulations t.efore addressing the 

merits. 

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The OSH Act's fundamental goal is to ensure to th1e extent possible 

that American workers have safe working conditiQns~ 29 U~S~C. § 6S1(b). 

One of the tools that Congress created to achieve that goal is a system of 

recordkeeping that allows the government to "'develop[] iIlformation 

regarding the causes and prevention of occupational acc'idents and 

illnesses." 29 U.S.C .. § 657(c)(1) .. Thus, section 8 of the t)SH Act directs 

the Secretary to "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[.]" 29 u.s.c~ § 

657(c)(2). "The legislative history of section 8 clearly ind:cates Congress's 

recognition that a comprehensive system of re~cording and reporting 

occupational injuries and illnesses is essential to achieving the purposes 

of the Act and ensuring employer compliance with its recLuirements." 

Thennal Reduction Corp., 12 BNA OSHe 1264, 1266 (No. 81-2135, 1985) .. 

The Secretary complied with section 8's mandate1:~y promulgating 

the regulations set forth at 29 C.F.R. Part 1904. As rele,rant here, the 

regulations require employers to record certain injuries SLl1d illnesses on 

OSHA Form 301 incident reports and an OSHA 300 log, '<{within seven (7) 

calendar days of receiving information that a recordable Lnjury or illness 

has occurred." 29 C.F.R. § 1904.29(b)(1) - (3), In addition, employers 

are required, at the end of each calendar year, to check the OSHA Form 

300 log for accuracy and to correct any mistakes; to prej:)are an annual 

summary~ to have a company executive certifJr the accurj;),cy of the 

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summary; and to post the summary for the employees~ benefit from 

February 1 through April 30 of the following calendar yellr. See 29 

C.F.R. § 1904.32. In addition, employers are required to retain copies of 

the OSHA Form 300 log and Form 301 reports, as well a::l the annual 

summary, for a period of five years. See 29 C,F.R. § 1904.33. 

As the Commission has noted, the part 1904 regulations "are a 

cornerstone of the Act and playa crucial role in providing the 

information necessary to make workplaces sarer and healthier." General 

Motors Corp., 8 BNA OSHC 2036, 2041 (No. 715-5033, 1980). 

B. The Secretary cites Volks upon discovering wholesale violations of 

part 1904 recordkeepmg regulations. 

OSHA inspected Volks's facility in Prair:~eville, Louisiana from May 

10,2006 to November 8, 2006. AW Dec. 1. ()n November 10, 2006, the 

Secretary cited Volks for, among other things, numerous violations of the 

recordkeeping regulations set forth at 29 C.F.R. part 19C14. AW Dec. 1-

2.1 Yolks contested the citations and the matter was ref(~rred to an AW. 

The citation items at issue here are as f:Jllows: 

• Citation 2, item 1, which charged that Volks failed to record 67 

work-related injuries or illnesses on OSHA Form 301 incident reports 

("incident report") or equivalent forms, in violation of 29 (~.F.R. § 

1904.29(b)(2). The injuries and illnesses citel:! in item 1 occurred 

between August 2002 and April 2006; 

• Citation 2, item 2, which charged tha.t Yolks failed to record 102 

work-related injuries or illnesses on its OSHA Form 300 log, in violation 

1 Only the recordkeeping violations are at iSS'lLe here. 

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29 C.F.R. § 1904.29(b)(3). The injuries and illnesses cited in item 2 

occurred between November 2002 and April 2006; 

• Citation 2, item 3, which charged that Yolks failed to review the 

OSHA Form 300 log during the years 2002, 2()03, 2004 n.nd 2005 to 

verify that the entries were complete and acct:lIate and to correct any 

deficiencies, and thereby violated 29 C.F.R. § 1904.32(a)ll); 

• Citation 2, item 4, which charged that Volks violated 29 C.F.R. 

§ 1904.32(b}(3} by failing to have a company executive certify that he 

examined the OSHA Form 300 log and that the OSHA Form 300A Annual 

Summary was correct and complete for the years 2002, 2003, 2004 and 

2005; and 

• Citation 2, item 5, which charged tha.t Yolks violated 29 C.F.R. 

§ 1904.32(b)(6) by failing to post the annual summary fO'r the required 

posting time from February 1,2006 to April 30, 2006. 

AW Dec. 4. 

During the course of the proceedings, Volks stipul,~te(l that the 

violations occurred as- alleged, but asserted trJ.at Citation 2 was brought 

outside the six-moth limitations period set forth in sectic,n 9(c) of the 

OSH Act, 29 U.S.C. § 658(c). Specifically, the parties sti1lulated as 

follows: 

"1. Volks will no longer, for the purposes of these stipulations, 

contest the allegations of Citation 2, Items 1 through 5, that violations 

occurred and that the proposed penalties are appropriat(!, except that: (a) 

Yolks preserves its defense that the items are untimely under Section 

9(c) of the Act; (b) Volks does not admit that violations occurred on or 

about the date of the inspection; and (c) as to Item 1, Vo1ks preserves its 

defense that the allegations fail to state a claim upon which relief may be 

granted with respect to whether an OSHA Fonn 301 was required. 

2. With respect to Items 1 and 2J the injuries or illnesses had not 

been recorded on the Form 301 ("the incident report")or ]~orm 300 ("the 

log") within seven calendar days after the injury or illnes:; dates, which 

for purposes of this stipulation is the date that Yolks received 

information that a recordable injury or illness occurred. The injuries and 

illnesses had not been recorded on either form by the da":e the OSHA 

inspection was initiated, May 10, 2006. 

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3. With respect to Item 3, Yolks did not by the enci of calendar 

year 2002,2003,2004, and 2005 review the OSHA 300 l"og for the 

respective year to ensure that all entries were complete and accurate, 

The logs had not been reviewed as of the date the OSHA inspection was 

initiated, May 10, 2006 .. 

4. With respect to Item 4~ the annual s'.lmmaries for the year 

2002, the year 2003, the year 2004, and the }*ear 2005 ~'ere certified by 

a person other than a company executive dur:..ng those clllendar years. 

The certifications by a company executive had not occun-ed as of the 

date the OSHA inspection was initiated, May 10, 2006. 

5. With respect to Item 5, the annual s".lmmary for 2005 was 

posted only from February 1 ~ 2006 to February 28~ 2006." 

ALl Dec. 2-3 .. 

c. The ALI rejects Volks"s section 9(c) challenge to Citlltion 2 on the 

basis of controlling Commission precedel'l.t .. 

In light of the foregoing stipulations, the AW granted summary 

judgment to the Secretary. AW Dec. 5-7. In ·30 ruling, th.e ALl 

determined that the Commission"s decision in Johnson C'ontrols, Inc., 15 

BNA aSHe 2132 (No. 89-1614, 1993), foreclo:3ed Volks's statute of 

limitations defense. Ibid. 

Volks then filed a petition for discretionary review 'Nith the 

Commission, and the Commission directed the case for review on July 

27, 2007. 

ARGUMENT 

A. Voiles's violations o/the recordkeeping regulations set forth at 29 

C .. F.R .. §§ 1904.29(b)(2) and (b)(3) occurred within SIX months afthe 

citation date. (Citation 2) items 1 and 2}. 

In Citation 2, item 1, the Secretary alleged that Yolks violated 29 

C.F.R. § 1904.29(b)(2) by failing to prepare an injury and illness incident 

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report (OSHA Form 301) for 67 individual recordable injtLries and 

illnesses that occurred between 2002 and 20('6. Similarly, Citation 2, 

item 2 alleged that Yolks violated 29 C.F.R. § 1904.29(h)(3) by failing to 

record on the OSHA Form 300 log 102 injuries and illnesses that 

occurred during the same approximate time frame. Yolks contends that 

citation items 1 and 2 fall outside the six-mor.lth statute of limitations set 

forth in section 9(c) of the OSH Act, 29 U .S.C. § 658(c). (~onlmission 

precedent squarely forecloses Yolks's argumel1.t, and Yolks has not 

offered persuasive reasons for the Commission to depart from that 

precedent .. Therefore, the AW's decision shot:Lld be affu-I:J.ed. 

1. The citation items at issue were timely under controlling 

Commission precedent. 

Section 9(c) of the aSH Act provides that "[n]o citation may be 

issued under this section after the expiration of six months following the 

occurrence of any violation." 29 U.S.C. § 65S':c). Neither that section nor 

any other part of the OSH Act, however, defines what COllstitutes an 

"occurrence" of a "violation." In the context of recordkeeping regulations, 

however, the Commission has held that "an inaccurate entry on an 

OSHA form. 200 violates the Act until it is corrected, or until the 5-year 

retention requirement of section 1904.6 expires." Johnson Controls~ Inc.} 

15 BNA OSHe 2132,2135 (No. 89-2614, 199a),2 Accordingly, "an 

2 The part 1904 regulations have been amended since Johnson Controls 

was decided .. See 66 Fed. Reg. 5916 (Jan. 19~ 2001). O~;HA Form 300 

replaced the OSHA Form 200, and the duty to retain records for five 

years is now codified at 29 C.F.R. § 1904.33(a). 

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uncorrected error or omission in an employer=s OSHA-req~uired injury 

records may be cited six months from the time the Secretary does 

discover, or reasonably should have discovered, the facts necessary to 

issue a citation.~ Ibid.; see also General Dynamics Corp., Elec. Boat Div~, 

15 BNA aSHe 2122,2128 (No. 87-1195,199:3) (lethe obligation to correct 

any error or omission in an employer's OSHA-required irjury records 

runs until the error or omission is either corrected by th(~ employer, or 

discovered or reasonably should have been di:scovered b)f the Secretary'). 

Under Johnson Controls and General D!fnamics, Vc,lks's failure to 

record injuries and illnesses on the OSHA Form 300 and 301 forms 

during the 2002 to 2006 time frame violated the OSH Act until they were 

corrected or until the five-year retention period (see 29 C,F4R~ § 1904.33) 

expired. The stipulated facts show that neither of those conditions took 

place prior to the date the citation was issued (November 8, 2006)" 

Therefore, items 1 and 2 were issued within section 9(C)'B limitation 

period. 

2. Johnson Controls and General Dynamics remain good law. 

Yolks acknowledges the holdings of Johnson Controls and General 

Dynamics but nonetheless argues that those ciecisions ha.ve been 

abrogated by the 2001 amendments to the part 1904 regulations and by 

subsequent caselaw. None of its arguments h.as merit. 

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a.. The 2001 amendments to the part 190.1/· regulations did 

not abrogate Johnson Controls and Gen.eral Dynamics. 

Volks argues (Br 19 ... 23) that the part 1904 regulations, as 

amended in 2001, do not impose an ongoing duty to record injuries and 

illnesses on Forms 300 and 301 beyond the seven-day rt~porting window 

set forth in 29 C.F.R. § 1904.29(b)(3). Thus, according to Volks, a failure 

to record is complete as of the eighth day follc,wing the elnployer's receipt 

of information that a recordable injury or illness has occllrred, and 

section 9(c)'s limitations period begins to run from that clay. 

Yolks's argument is based upon a misreading oftI:Le part 1904 

regulations. Although a failure to record doesi constitute a violation on 

the eighth day following the employer's receipt of inform~ltion that an 

injury or illness has occurred, the violation ccntinues to t(occur7.' within 

the meaning of section 9(c) until either the employer records the 

information as required in the part 1904 regulations or the five-year 

period for retaining OSHA Forms 300 and 301. has elapsed. In other 

words, the same analysis that the Commissio:.1 applied t() the pre-200 1 

recordkeeping regulations in Johnson Controls and General Dynamics 

applies with equal force today. 

1. The OSH Act and the .part 1904 regulations 

supply ample evidence that the c~uty to record is 

an ongoing one. 

A review of the part 1904 regulations, Ctjnstrued ir.L light of the 

OSH Act itself, reveals that the continuing du':Y rule laid down in 

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Johnson Controls and General Dynamics was ~1.ot extinguished when the 

Secretary amended the regulations in 2001. 

To begin with, section 8(c)(2) of the aSH Act directs the Secretary 

to "prescribe regulations requiring employers to maintaitt accurate 

records or work-related injuries and illnesses. 29 U .. S.C. § 657(c)(2) 

(emphasis added). Obviously, the regulations would not meet that 

statutory mandate if the duty to record were confined to a seven-day 

window. Thus, the Commission's and the Secretary's interpretation of 

the part 1904 regulations -- under which employers have a continuing 

duty to maintain accurate records until the five-year ret~:ntion period has 

elapsed -- comports with section 8(c){2Vs dire(;tive better than Yolks's 

interpretation, under which employers have a duty to co:nply within the 

seven-day initial reporting period but not thereafter. Br. 19. See Alfred 

S. Austin Constr., 4 BNA OSHe 1166, 1168 (No. 4809, 1 ~}76) ("It is 

especially important that the regulations promulgated by the Secretary of 

Labor under the Act be construed to effectuate the congressional 

objectives .. " (internal quotation marks and citation omitt(~d)). 

The structure of the part 1904 regulations as a whole likewise 

confirms that the recordkeeping duty is a COlltinuing one:. Although 

section 1904.29(b)(3) states that injuries and illnesses must be entered 

on Forms 300 and 301 within seven days, the previous subsections of 

1904.29(b) (1904.29(b)(I), (2)) make clear that. the duty to record is a 

categorical one. So does 29 C.F.R. § 1904.4, -,;vhich man.iates that 

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employers must record injuries and illnesses if certain criteria are met. 

Further evidence is supplied by 29 C.F.R. § 1904.32(a)(1" which requires 

employers to review the OSHA 300 log at the end of each calendar year to 

"verify that the entries are complete and accurate, and correct any 

deficiencies identified." That regulation, read in conjunction with the 

requirement that records be kept for a period of 5 years, see 29 C .. F.R. 

§ 1904 .. 33, makes clear that the duty to record injuries and illnesses 

does not end at the expiration of the initial 7 -d.ay reporti:~g period. 

In arguing to the contrary, Volks relies on several J,rovisions of the 

part 1904 regulations tha1 were added by the 2001 amerldments. Its 

reliance on those provisions is badly misplaced. 

In the fIrst place, nothing in the language of the PfLI"t 1904' 

regulations, as amended, or the preamble to the 2001 anl.endments 

indicates that the Secretary intended to depart from the rule, set forth in 

Johnson Controls and General Dynamics, that the duty to record injuries 

and illnesses is an ongoing one during the five-year reterLtion period. 

Absent a specific indication that the Secretary' intended II change in her 

interpretation, the Commission should not presume that one was 

intended. See Troy Corp. v. Browner, 120 F.3(i 277~ 286--87 (D.C. Cir. 

1997) .. 

The specific provisions that Yolks relies upon, moreover, do not 

support its position. For example, it points to 29 C.F.R. § 1904.32(a)(1), 

the provision that requires employers to reviev-r the OSH} .. 300 log "at the 

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end of each calendar year." According to Vol1:s, that provision is 

redundant if employers already have an ongoing duty to correct 

deficiencies throughout the 5-year retention Fteriod. Br.21. 

Volks's argument fails because 29 C.F.R .. § 1904.32 also requires 

employers to prepare and post for their employees' benefit an annual 

summary based upon the OSHA Form 300 log. See 29 C~.F.R. § 

1904.32(a)(2), (4). Thus, the requirement tha": the OSHA Form 300 log be 

reviewed and corrected at the end of each calendar year helps to ensure 

that the information supplied to employees is as accurate as possible. 

See 66 Fed .. Reg. 5916,6043 (Jan. 19,2001). Conseque:3t1y, the 

requirement to check the accuracy of the log cit the end of each calendar 

year serves a more specific purpose than the general rule that accurate 

records be maintained throughout the five-year retentior:~ period. Under 

these circumstances, 29 C.F.R .. § 1904 .. 32(a)(J) is not redundant. See 

United States v. Stewart, 104 F.3d 1377, 1387 (D .. C .. Cir. 1997).3 

Yolks also points to 29 C.F.R .. § 1904.33(b), which requires 

employers to "update" OSHA Form 300 logs d'Llring the retention period 

to include "newly discovered recordable injuries and illne:sses" and to 

make changes to "previously recorded injuries and illnesses." Because 

3 Volks's argument would fail even if the provisions were redundant. It 

is hardly unusual for statutes and regulations to emphaHize points that 

have been previously stated or implied. See SJwck v. District of Columbia 

Financial Responsibility and Mgmt. Assistance Auth., 132 F.3d 775, 782 

(D.C. Cir. 1998) ("Sometimes congress ..... drafts provisie·ns that appear 

duplicative of others simply, in Macbeth's words, "to maJ..~e assurance 

double sure.") 

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the regulation only refers to update the logs ~ri.th "new irLformation," 

Yolks concludes, the regulation does not require updateB of information 

that the employer already knew about and should have recorded, but did 

not. Br.22. 

Yolks's argument must fail. It is based upon the rnaxim expressio 

unius exclusio altenus -- "expressing one item of an asso,:iated group or 

series excludes another left unmentioned." Chevron U.S.A. Inc. v. 

EchazabaZ, 536 U.S. 73, 80 (2002) (internal q1.1otation marks and citation 

omitted). That maxim, however, is a "feeble helper" in the interpretation 

of administrative regulations. Cheney R.R. C(J. v. ICC, 902 F.2d 66,69 

(D.C. Cir. 1990);. see-also' Whetsel v. Network .. Property Se11)$~) LLC, 246 

F.3d 897,902 (7th Cir. 2001) (expressio canon "has red\'lced force in the 

context of interpreting; agency administered regulations"). And it is an 

especially feeble helper here: the Secretary did not spell out the 

obligation to "update" logs with information ttlat the employer was 

already required to record because she was entitled to presume that 

employers would follow the law in the first pIa.ce. In add.ition, employers 

already knew from Johnson Controls and General Dynamics that the duty 

to record was an ongoing one throughout the five-year retention period. 

Requiring employers to update the logs with ":rlew information," cannot 

reasonably be held to show the Secretary's intent to eliminate the duty to 

record illnesses and injuries that should have been recorded earlier. 

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2. The Secretary's interpretation of section 9(c) and 

the part 1904 regulations is entii~led to deference. 

The Commission should also adhere to Johnson C,)ntrols and 

General Dynamics because the views expressed in those decisions 

regarding the meaning of section 9(c) and the part 1904 regulations are 

shared by the Secretary. The Secretary's reading of sect.ion 9(c} is 

entitled to deference under Chevron U.S.A. Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S .. 837 (1984)" and the Secrc!tary's reading of 

the part 1904 regulations is entitled to deference under .Bowles v. 

Seminole Rock & Sand Co., 325 U .. S. 410 (1945). See M(A.rtin v. OSHRC 

(CF&I), 499 U.S. 144, 157 (1991). 

Yolks cites Arcadian Corp., 17 BNA OSHe' 1345 (No. 93-3270, 

1995), for the view that the Secretary is not entitled to deference 

regarding her interpretation of the aSH Act. :Sr. 30. Wl':.atever the force 

of that decision, it should not be followed herc~, As Volks, points out, this 

case is likely to be appealed to the D.C. Circu:it (Br. 5), aJ~d that court 

has held that the Secretary's interpretations elf the OSH .A.ct are entitled 

to deference. See A.E. Staley Mfg. Co. u. Secretary of Labor" 295 F.3d 

1341, 1345 (D.C. Cir. 2002); International Union1 United }\utomobile, 

Aerospace & Agricultural Implement Workers o.f America I;. OSHA, 938 

F.2d 1310, 1319 n.9 (D.C. Cir. 1991); cf Secretary of Labor v. Twentymile 

Coal Co., 411 F.3d 2567 261 (D.C. Cir. 2005) (holding thcLt Secretary's 

interpretations of Federal Mine Safety and Health Act in litigation before 

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the Federal Mine Safety and Health Review Commission are entitled to 

Chevron deference).4 

Citing United States v. Mead Corp., 533 U.S. 218 (2001), Volks also 

contends that the Secretary's interpretation of her part 1904 regulations 

is not entitled to deference because that interpretation has not been 

formally promulgated through rulemaking or adjudication. Sr. 29-30. 

Mead, however, addressed the circumstances under whi:h an agency's 

interpretation of a statute should be accorded Chevron-type deference, 

and did not address the circumstances under which an a.gency's 

interpretation of its own regulation should be accorded deference. See 

Glover v. Standard Fed. Bank, 283 F.3d 953,962 (8th Cir. 2002); 

American Express Co. v~ United States, 262 F.3d 1376, 1.382-83 (Fed. eire 

2001). In any event, nothing in Mead diminished the Court's holding in 

CF&Itbat "the Secretary's litigating position t,efore the C.ommission is as 

much an exercise of delegated lawmaking pov'ers as is tile Secretary's 

promulgation of a workplace health and safety' standard." 499 U.S. at 

157. Thus, the Secretary's interpretation of the part 1904 regulations as 

4 In Leach Corp. v. NLRB, 54 F.3d 802,806 (D.C. Cir. 1995), the court 

noted that the NLRB's interpretation of the statute of limitations set forth 

in the National Labor Relations Act was entitled to Chevron deference. 

The NLRB, unlike the Commission, is a policy making boefy whose 

decisions are entitled to deference. In the OS:H Act context, the 

Secretary, not the Commission, serves the role of policynlaking agency, 

and her views are entitled to Chevron deferen(~e. See Anrhony Crane 

Rental, Inc. v. Reich, 70 F.3d 1298, 1302 (D.C. eire 1995). See also 

Interamericas Investments;, Ltd. v. Federal Reserve Sys., 111 F.3d 376, 

382 (5th Cir. 1997) (a court "should defer to tJ1.e agency interpretation 

whether a continuing violation theory is available under .a certain statute 

if the statute of limitations is entrusted to the agency's irlterpretation"). 

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set forth in this litigation (and as previously approved in Johnson 

Controls and General Dynamics) is entitled to deference .. Cf., Twentymile 

Coal Co .. , 411 F .. 3d at 261. 

Yolks also claims that deference principles do not apply because 

the part 1904 regulations are not ambiguous. Br.29. Nothing in the 

regulations, however, clearly supports Volks's position trlat the duty to 

record exists only during the seven-day window set forth in 29 C.F.R. 

§ 1904 .. 29(b)(3). If anything, the regulations aIe most easily read to 

support the Secretary~s position. And in Johrl.son Controls, the 

Commission held that the duty to record exists throughc,ut the fitre-year 

retention period'" even though the regulations at that time required 

employers'to record injuries and illness "no later than Si:1C working days 

after the employer received information about the case .. " 66 Fed .. Reg .. at 

6023. Thus, the regulations cannot be read to unambigllOusly support 

Volks's interpretation. 

b. Subsequent caselaw has nut abrogatecl Johnson 

Controls and General Dynamics. 

Contrary to Yolks's argument (Br. 16, 19-22), the easelaw does not 

require the Commission to revisit Johnson Conptrols and (Jeneral 

Dynamics. 

Volks first relies upon a line of cases, most recentl:f illustrated by 

Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (20071, for the 

proposition that "'a discrete, violative act must occur witlLin a limitations 

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period and [ ] passive inaction is not a continuing violation." Br. 2. The 

Commission, however, already addressed cases like Ledl)etter in General 

Dynamics, where it stated: 

[General Dynamics] further relies on cases under Ilumerous 

other Federal statutes that require the plaintiff to Bhow an 

overt act violating the statute within the limitations period. 

However, the statutes at issue in those cases, unlike the 

[OSH] Act, require proof of an "overt act" to show s.ny 

violation .... By contrast ... the [OSH] Act penali~es the 

occurrence of noncomplying conditions which are .accessible 

to employees and of which the employer knew or reasonably 

could have known, That is the only "act" that the Secretary 

must show to prove a violation. 

15 BNA OSHe at 2129-2130. Nothing in Ledbetter-affects the analysis 

set forth in General Dynamics, and the Commission thUSI has no reason 

to depart from that decision. 

Toussie v .. 'United States, 397 U.S. 112 (1970), doe~~ not help Yolks 

either. To begin with, it is far from clear that Toussie ha.3 any application 

to civil cases, as Volks contends (Br. 16). See Diamond v. United States, 

427 F.2d 1246, 1247 (Ct. Cl. 1970) ("[t]he Supreme Court's opinion [in 

Toussie] makes clear that the considerations moving the Court to decide 

that the offense was not a continuing one were entwined with the 

criminal aspects of the matter, and holding was limited to criminal 

statutes of limitations") .. In addition, the Toussie Court r.l1ade clear that 

whether a violation was continuing in nature :ls ultimately a matter of 

statutory interpretation. See Toussie, 397 U.S. at 115. In tIle present 

case, a proper interpretation of the part 1904 regulation~~, given due 

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deference to the Secretary"s interpretation 1 CF&I;t 499 U.S .. at 157;t 

confirms that the recordkeeping duty at issue is a contin.uing one 

throughout the five-year retention period. 

Finally, Yolks's reliance on Interamericcls Investments" Ltd. v. 

Federal Reserve Sys., 111 F.3d 376, 382 (5th Cir. 1997), is equally 

misplaced. As Yolks points out (Br. 21 n.25), the court there stated that, 

"[f]or reporting statutes such as the [Bank Holding Com~.any Act).. so long 

as the reporting need not occur within a certain time span, a failure to 

report certain conditions will generally constit.ute a continuing violation 

for so long 'as the failure: to report persists." (]~mphasis ·~ldd.ed). But that 

statement does not support Yolks's position, because the court also 

acknowledged that it "should defer to the agency 'interpretation whether 

a continuing violation theory is available under a certain statute if the 

statute of limitations is entrusted to the agency's interpr(~tation." 

Interamericas Investments, 111 F.3d at 382. As stated alJove;t the 

Secretary interprets section 9(c) of the OSH Act and the )lart 1904 

regulations as authoriZing the citation of unrecorded injl.lries and 

illnesses throughout the five-year retention period, and that 

interpretation is entitle'd to deference. s 

5 Quoting Phillips y. United States, 843 F.2d 438,443 (11th Cir. 1988), 

Yolks states that "Johnson Controls also violates the principle that 

'[sJtatutes of limitations, both criminal and civil, are to b(! liberally 

interpreted in favor of repose. m Br. 16. In so arguing, Volks overlooks 

the statement in Interamericas Investments that "statutes of limitations 

in the civil context are to be strictly construed in favor of the Government 

against repose.'" III F.3d at 382. 

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c. The Commission addresseG~ VoIles's stczleness concerns 

in General Dynamics, 

Volks also contends that ~continuing violations ma.y not be found if 

they are necessarily based on stale facts." Br. 16. Although staleness 

concerns are highly relevant in determining section 9(c)':s scope and 

application, the Commission has already addressed thoE.e concerns in 

this exact context: 

A statute of limitations such as section 9(c) serves important 

purposes: to insure repose by giving stability to h'l1man 

affairs and to spare a person the burde.n of preparing a 

defense after the evidence has been lost, memorie8 have 

faded, or witnesses have departed or di,~d. Howevf~r, those 

concerns do not arise where, as here, the alleged :yiolations 

existed within six months before the citations were issued. 

The Secretary must prove that all elements of the alleged 

violation "occurred71 during that period, regardless whether 

they also "occurred" earlier. In particuJar, the Secretary 

must show that the employer knew, or with the exercise of 

reasonable diligence could have known~ of the errc.rs and 

omissions during the limitations period. 

General Dynamics, 15 BNA OSHC at 2130 n.] 6 (internal quotation marks 

and citation omitted). Given that staleness concerns must be weighed 

against the remedial purposes of the OSH Act, see generally Connecticut 

Light & Power Co. v. Secretary of Labor, 85 F.3d 897 96 (2nd Cir. 1996), 

the Commission'8 resolution of this issue in C;eneral Dyn.amics was 

entirely reasonable, and Volks has not supplied adequatf~ reasons for the 

Commission to change course now. 

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3. Stare decisis counsels in favor o/reaffirming Johnson Controls 

and General Dynamics. 

As the foregoing discussion shows, Vol~~s's challenge to the 

continuing violation rule established in Johnson Controls and General 

Dynamics is not in fact based upon developments that h.3.ve occurred 

subsequent to those decisions. Rather) it is a challenge to the 

correctness of those decisions. The Commission, however, follows the 

principle of stare decisis, see John R. Jurgens1en Co." 12 13NA aSHC 1889~ 

1894 (No. 83-1224, 1986), and that principle weighs heavily against the 

overruling of prior decisions where the only argument fo]· doing so is that 

they were wrongly decided. As the Seventh Circuit has remarked, "if the 

fact that a court considers one of its pre'Vious decisions to be incorrect is 

a sufficient ground for overruling it, then stare decisis is out the window, 

because no doctrine of deference to precedent is needed to induce a court 

to follow the precedents that it agrees with; a court has IlO incentive to 

overrule them even if it is completely free to do so." Tate u. Showboat 

Marina Casino Partnership, 431 F.3d 580, 58~~-83 (7th C:.r. 2005). 

The decisions in Johnson Controls and fJeneral Dyltamics are 

consistent with the policies underlying the OS;H Act and the part 1904 

recordkeeping regulations, and are also consi:stent with the SecretaryJs 

reasonable interpretations of those provisions. Because Yolks has put 

forth no convincing arguments that outweigh stare decisis, t.he 

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Commission should reaffirm the holdings in ,Johnson CO;'1.trols and 

General Dynamics. 

4. The discovery rule is not implicated in this case. 

Yolks devotes a substantial portion of its brief to tJ1.e argument that 

the discovery rule, as adopted in Johnson CorLtrols and (reneral 

Dynamics, is nO longer viable in light of Supreme Court n.nd D.C. Circuit 

precedent. Br. 5-14. This case does not present an occfLsion for the 

Commission to consider that issue, because the timeliness of items 1 and 

2 does not rest upon the discovery rule. 

In the OSHA context, the discovery rule limits the Secretary's 

ability to cite an employer for recordkeeping violations'within the fiveyear retention period. That is, if the Secretar.y discovers or reasonably 

should have discovered failures to record, then section 9(c)'s six-month 

limitations period begins to run from the date of the acttlal or 

constnlctive discovery, even if the disco\Tery o:curs well llefore the 

employer's five-year retention period has expired. See Johnson Controls, 

15 BNA aSHe at 2136; General Dynamics, 15 BNA OSH(~ at 2127-28 & 

n.8. 

In this case, Yolks stipulated that it had not recorcled the injuries 

and illnesses set forth in items 1 and 2 by the time the Secretary 

initiated the inspection in May 2006. AW Dec:. 3. There is no 

suggestion, moreover, that the Secretary kne~T about or should have 

discovered the violations at issue sooner than she did. AW Dec. 5. 

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Therefore, the violations "occurred" for section 9(c)'s purposes no earlier 

than May 2006, and the Secretary issued the citation within six months 

of that "occurrence," in November 2006. AW Dec. 1. Th.erefore, the 

discovery rule simply does not come into play. See General Dynamics, 15 

BNA OSHe at 2127-28 & n.B. 

Even if it were at issue in this case, nothing in the ca!3es cited by 

Yolks requires the Commission to abandon Ule discoveIjr rule outlined in 

Johnson Controls and General Dynamics. VO[~S makes t:1e broad 

assertion that the District of Columbia Circuit "does not recognize 

discovery rules in civil administrative proceedings~" Br .. ei. This misstates 

the holding in 3Mv. Browner, 17 F.3d 1453 (D.C. Cir. 1994). 

In 3M, the' District of Columbia Circuit .held that tile general federal 

five-year statute of limitations, 28 U.S .. C. § 2462 ("sectiol'l 2462"), applied 

to an administrative proceeding in which the :Environme::l.ta1 Protection 

Agency ("EPA") sought to impose civil penalties. 17 F.3d at 1454. The 

court also analyzed when that particular statute of limit~ltions begins to 

run, ibid., specifically recognized that: 

[t]he provision before us, § 2462, is a general statu.te of limitations, 

applicable not just to EPA in TSCA cases, but to tl':Le entire federal 

government in all civil penalty cases, urlless Congress specifically 

provides otherwise. We therefore cannot agree with. EPA that our 

interpretation of § 2462 ought to be influenced by EPA's particular 

difficulties in enforcing TSCA. 

Id. at 1462. 

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Yolks· reads this excerpt to stand for tr.le proposition that 3M holds 

that "enforcement difficulties are, as a matter of law~ ne,rer sufficient to 

justify a discovery rule in civil penalty cases." This reading misstates the 

CQurt's holding. It is clear that the D.C_ Circuit did not '1Vant to interpret 

section 2462 in a manner that was unique to EPA only, since its decision 

would affect a wide range of cases brought urtder a variety of statutes by 

a variety of Federal agencies. In fact, the variety of case:) cited by Volks 

to support its claim that 3M has been "widely followed" \lnderscores the 

many types of cases that are affected by an ir.!terpretation section 2462. 

In contrast, OSHA has its own statute ()f limitatiorls in section 9(c) 

of the Act. The Commission and courts can B.nd do consider OSHA's 

unique enforcement issues when interpreting and ana1y~~ing the Act's 

statute of limitations because their decisions do not impact non .. OSHA 

cases. Yolks ignores this very obvious distinction between section 9(c) 

and section 2462.. Notably, none of the cases Yolks cites as support for 

its statement that the 3M case has been "widely followed" involve section 

9(c). 

Nor-does TRW Inc. Va Andrews, 534 U.S. 19 (2001): provide support 

for Volks' position. In TRW, the Supreme COLlIt held on~Y' that "Congress 

implicitly excluded a general discovery rule by' explicitly i.ncluding a more 

limited one." TRWv. Andrews~ 534 U.s. at 28. As we have explained 7 

Congress did no such thing in section 9(c) of the Act, anci OSHA did no 

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such thing in the recordkeeping regulation. ~ro the cont~ary, the rules 

set out in Johnson Controls and General Dynamics remaLn in effect. 

Thus, the Supreme Court did not hold that a discovery rule is only 

appropriate in cases that {{cry out" for it, as Yolks implies. Significantly, 

the court stopped short of determining whether there is a presumption 

that federal statutes of limitations incorporate a general discovery rule. 

Id. at 27. 

Finally, even ifVolks's reading of TRWwere correct, OSHA's 

recordkeeping regulation does "cry out" for a general disl:!overy rulea As 

noted above, OSHA recordkeeping cases are inherently 1.Indiscoverable--

typically requiring an on-site OSHA inspection and thorough review of 

workers' compensation records and medical records, in addition to an 

employer's OSHA-required recordkeeping records. If OSHA were 

precluded from citing uncorrected recordkeeping errors ':vhen such errors 

are discovered, OSHA would be unable to enforce its inj1.lIY and illness 

recordkeeping regulations, which are essential to the Agt~ncy's purpose of 

protecting employee safety and health, 

5. Items 1 and 2 are not duplicative .. 

In its briefing notice, the Commission a.lso asked t"e parties to 

address whether items 1 and 2 are duplicative. In its bri.ef, Yolks states 

that they are duplicative, but offers no argumentation in support. Br. 

25. That assertion is clearly wrong. 

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Citation items are duplicative when they address the same violative 

conduct and when they "require the same abatement m(!asures." MJP 

Constr. Co., 19 BNA 1638 (No. 98-0502, 2001). Here, the information 

required to complete the OSHA Form 300 log is different from the 

information needed to complete an OSHA Form 301 report, and the 

forms serve different purposes. Thus, while the OSHA Form 300 log 

requires employers to classify work-related injuries and illnesses and to 

note the extent and severity of each case, the OSHA Fortn 301 report 

requires employers to fill out more detailed information a.bout each 

recordable injury or illnesses, including what the emplo)ree was doing 

when injured or ill; how the incident occurrect; the speci::ic details of the 

injury or illness; and the object or substance that harme'd the employee. 

See 66 Fed .. Reg .. at 6025,6031. The completion of an OSHA Form 300 

log, moreover does not abate an employer's failure to cornplete an OSHA 

Form 301 report. 

In this particular case, moreover, item 1 alleged that Yolks failed to 

complete an OSHA Form 301 report for 67 individual recordable injuries 

and illnesses, whereas item 2 alleged that Yolks failed to record 102 

injuries and illnesses on the OSHA Form 300 log.. Thus, the items do not 

cover the exact same failures to record .. 

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6. The duty to complete an OSHA Form 301 rep.:>rt arises 

whether or not the employer has complied with his duty to 

complete an OSHA Form 300 log. 

Finally, Yolks argues that item 1, which charges numerous failures 

to record injuries and illnesses on OSHA Forrn 301 incident reports, 

should be vacated because Yolks never recorded those sa.me injuries and 

illnesses on the OSHA 300 Log. According to Yolks, the cited regulation, 

29 C.F.R. § 1904.29(b)(2), requires employers to complete an OSHA 

Form 301 for each recordable injury and illness "entered on the OSHA 

300 Log,." and sinceVolks never entered the il:ems at isslle on the Form 

300 log, the duty never arose to prepare FOrn:l 301 reports. Br. 24-25. 

That argument is frivolous. The regulations make clear that the 

duty to prepare a Form 301 report is indepen.:lent of the duty to prepare 

a Form 300 log. See 29 C.F.R. § 1904.29(b)(3) ("You mu:st enter each 

recordable injury or illness on the OSHA 300 Log and 3C 1 Incident 

Report with seven (7) calendar days of reCeiV1.Jlg information that a 

recordable injury or illness has occurred (emphasis added)). In addition, 

Yolks's interpretation is perverse: an employer who complies with his 

obligation to report an injury or illness on the OSHA 300 Log has a duty 

to report that same injury or illness on OSHA Form 301, but an employer 

who ignores the duty to complete the OSHA 300 Log is tllereby 

exonerated from any duty to complete Form 301. It is difficult to see how 

that interpretation advances the policies unde~rlying the recordkeeping 

regulations, and it should be rejected by the CommissiorL. 

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B. Yolks's violations o/tlte recordk.eeping regulations ~;etfotth at 29 

C.F.R. §§ 1904.32((1)(1) and 1904.32(b)(3) occurred within six 

months of the citation date. (Citation 2, items 3 an(i 4). 

In Citation 2, item 3" the Secretary alleged that Yolks violated 29 

C.F.R .. § 1904.32(a)(1), which requires emplo:yers to review the OSHA 

Form 300 log for completeness and accuracy and to correct any 

deficiencies, "at the end of each calendar year." AccordiJ1.g to the 

citation, Yolks did not review the logs for accuracy with -respect to the 

2002 through 2005 calendar years. AW Dec. 4 .. Citatio:rl 2, item 4 

charged that Yolks did not have a company executive certify the annual 

summaries for the 2002 through 2005 calendar years fo.r accuracy and 

thus violated 29 C.F.R. § 1904.32(b)(3). Ibid. Like items 1 and 2, these 

items were charged within the six-month limitations perlod under a 

continuing violation ,theory.' 

Yolks argues that these violations were complete" .a.nd the 

limitations period began to run, as of the end of each calendar year at 

issue. Br.26-28 .. The logic of Johnson Controls and Ger;.eral Dynamics, 

however, applies with equal force to these violations. The requirements 

of 29 C.F.R. § 1904.32(a)(1) and (b)(3) are des:Lgned to inHure the 

accuracy of the records that the employer must retain for a five-year 

period, see 66 Fed. Reg. at 6042-6048; see al~so id. at 60·47 (annual 

summary "is also used as a data source by OSHA and Bl."S")., and in that 

sense axe no different from the requirements of the regulations at issue 

in Johnson Controls and General Dynamics. ~;ee, e.g., Johnson Controls., 

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15 BNA aSHe at 2133-2134. Thus, the contlnuing viol::ltion rule set 

forth in those Commission decisions should tle applied t'J these 

violations. 

The record shows that Yolks did not perform its dllties with respect 

to 29 C.F.R. § 1904.32(a)(1) and (b)(3) for the 2002 thrOl:lgh 2005 OSHA 

Form 300 logs and annual summaries by the time that the Secretary 

inspected its worksite in 2006. AW Dec. 3. Therefore, :.tems 3 and 4 

were not time-barred under section 9(c) of the' aSH Act. The AW's 

decision should therefore be affirmed. 

C. VolksJs failure to post the annual summtlry for the lull three-month 

period in 2006 as required under 29 C.F.R. § 1904&32(b)(6) was a 

continuing uiolatio11 throughout 2006; th,-ere!oreJ the citation in this 

case, filed in November 2006J was timelJJ. (Citation 2, item 5). 

Employers are required to complete an annual surnmary at the end 

of each calendar year and to post that summary no later than February 1 

of the following year and to keep it posted until April 30 Df that year. 29 

C.F.R. § 1904.32(b)(6). Here, Yolks complied in part by ))osting the 2005 

annual summary from February 1 through February 28, 2006. AW Dec. 

3. The Secretary cited Yolks in November 2006 for failing to post for the 

entire three-month period, and Yolks contends that the citation was 

untimely under section 9(c). In Yolks's view, ':he violatio'n was complete 

as of May 1, and the limitations period began to run fronl that date. Br. 

Concededly, the precise holding of Johnson Contro,~s and General 

Dynamics cannot be applied to this violation. The infornlation contained 

in an annual summary would be of little use to an emplcyee if it were 

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posted four or five years later, so placing an c.ngoing dut.y upon 

employers to post for any three-month period during the' course of the 

five-year retention period would make little sense. It do(~s make sense, 

however, to place a continuing duty upon employers to I)Ost the previous 

year's annual summary for any three-month :period durirtg the/allowing 

calendar year .. Applying that continuing violation theor:y, Yolks had the 

duty to post the 2005 annual summary from February 1 through April 

30, 2006; but, having failed in that duty, was nonetheless reqUired to 

post for some three-month period in 2006. Because the citation was 

issued in November 2006, before Yolks had posted the 2005 summary 

for three months'in 2006, the citation was timely under section 9(c). 

This limited continuing violation theory is perfectl~r consistent with 

the reasoning in Johnson ControlS and General Dynamics. The 

Commission in those cases acknowledged a continuing duty to record 

throughout the five-year retention period because the recordable 

information is useful, and serves the OSH Act's purpose~l, for the entire 

retention period. Similarly, the three-month posting req-.llrement is 

designed to "raise employee awareness of the recordkeeping process ... 

by providing greater access to the previous year's summary without 

having to request it from management. n 66 F.ed, Reg, at 6046. 6 Raising 

employee awareness in that fashion, OSHA believes, will"improve 

employee participation in the recordkeeping sy'stem." Id. at 6047. That 

6 The rule prior to the 2001 amendments only required ])osting for a 

one-month period. 

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Q1/17/2008 18:08 FAX 2028835488 SOL/aSH 

goal can be achieved if the records are posted during an:y three-month 

period during the following year, even if the employer fails to post during 

the prescribed time period,7 

The Commission should thus hold, in light of the :~easoning in 

Johnson Controls and General Dynamics, that. employers have a 

continuing duty under 29 C.F.R. § 1904.32(bl(6) to post a year's annual 

summary for a three-month period during the following ,~a1endar year. In 

this case, Yolks did not post for three months prior to th.e date of the 

citation. Therefore, citation 2, item 5 was tim.ely under f~ection 9(c) of the 

OSH Act. 

7 OSHA decided that the three-month posting period sh()uld begin on 

February 1 because the thirty days in January would be sufficient for 

employers to prepare the documents to be posted. 66 Fed~ Reg. at 6046. 

Although OSHA stated that "[d]elaying the posting any ft:Lrther would 

mean that employers would not have access t., the SUInr.aary for a longer 

period, thus diminishing the timeliness of the posted information," ibid., 

the preamble makes clear that making the posted information available 

for a three-month period is more important than having ;.t posted by 

February 1. See 66 Fed. Reg. at 6046-47. 

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CONCLUSION 

For the foregoing reasons, the citation and penalty should be 

afflImed. 

Respectfully submitted .. 

January 17, 2008 

GREGORY F. JACOB 

Solicitor of Labor 

JOSEPH M. WOOD''AlARD 

Associate Solicitor frJr 

Occupational Safe·~ and Health 

MICHAEL P. DOYLE; 

Counsel for Appellate Litigation 

~W. QJ)J..t 

lSI ROEERT W. ALDRICH 

Attorney 

U.S. Department of Labor 

Frances :Perkins Blclg .. 

Room S-4004 

200 Constitution Avenue, N,W, 

Washington, D.C. 2'3210-0001 

(202) 69:i-S448 

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141 039/040 
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CERTIFICATE OF SERVICE 

I hereby certify that on the !~day of January, 2008, the following 

counsel of record for Respondent Yolks Constructors was served with 

one copy of the Brief of Complainant Secretary of Labor b)7 facsimile and 

two copies by overnight mail: 

Arthur G. Sapper, Esq. (by first class mail) 

Robert C. Gonbar, Esq. 

James A. Lastowka, Esq. 

McDennott Wills & Emery LLP 

600 13111 Street, N.W. 

Washington, DC 20005 

Karen R. Harded, Esq. (by fust class mail) 

Elizabeth A. Milito, Esq. 

NFIB Legal FOWldation 

1201 F Street, N.W., Suite 200 

Washington, DC 20004 

Ro'bert W. Aldrich 

Attorney 

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