UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. 

AKM LLC d:ba VOLKS CONSTRUCTORS, 

Respondent. 

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OSHRC Docket No. 06-1990 

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BRIEF OF THE AMICUS CURIAE, 

THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS 

LEGAL FOUNDATION 

IN SUPPORT OF VOLKS CONSTRUCTORS 

November 27, 2007 

KAREN R. HARNED 

ELIZABETH A. MILITO 

NFIB LEGAL FOUNDATION 

1201 F Street, N.W., Suite 200 

Washington, D.C. 20004 

(202) 554-9000 

Attorneys for Amicus Curiae 

National Federation of Independent 

Business Legal Foundation 
TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ........................................................................................................... i 

CORPORATE DISCLOSURE STATEMENT .............................................................................. ii 

INTEREST OF THE AMICUS CURIAE ......................................................................................... 1 

ARGUMENT ................................................................................................................................... 1 

CERTIFICATE OF SERVICE ........................................................................................................ 4 

ii 
TABLE OF AUTHORITIES 

Cases 

American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974) ................................................. .3 

Other Authorities 

29 U.S.C. § 658(c) ........................................................................................................................... 2 

Employee Tenure Summary, Sept. 8, 2006; U.S. Department of Labor, Bureau of Labor Statistics 

News ............................................................................................................................................. 3, 4 

NFIB National Small Business Poll: Workplace Safety, Volume 2, Issue 1,2002 ........................ .1 

NFlB National Small Business Poll: Paperwork and Record-Keeping, Volume 3, Issue 5, 2003 ... 

.......................................................................................................................................................... 1 

111 
CORPORATE DISCLOSURE STATEMENT 

Pursuant to the § 2200.35 of the Occupational Health and Safety Review Commission's 

Rules of Procedure, the National Federation of Independent Business Legal Foundation (nNFIB 

Legal Foundation") provides the following corporate disclosure statement: 

The NFIB Legal Foundation is a 501(c)(3) public interest law firm. We are affiliated 

with the National Federation of Independent Business, a 501(c)(6) business association, 

which supports the Legal Foundation through grants and exercises common control of the 

NFIB Legal Foundation through officers and directors. No publicly-held company has 

10% or greater ownership of the NFIB Legal Foundation. The NFIB Legal Foundation 

has no parent or subsidiary corporations. 

Respectfully submitted this 27th day of November. 

~12,~ KAREN R. HARNED 

ELIZABETH A. MILITO 

NFIB LEGAL FOUNDATION 

1201 F Street, N.W., Suite 200 

Washington, D.C. 20004 

(202) 554-9000 

Attorneys for Amicus Curiae 

National Federation of Independent 

Business Legal Foundation 

IV 
INTEREST OF THE AMICUS CURIAE 

The National Federation of Independent Business Legal Foundation ("NFIB Legal Foundation") 

is a nonprofit public interest law finn established to protect the rights of America's small-business 

owners. It is the legal arm of the National Federation of Independent Business, the nation's oldest and 

largest organization dedicated to representing the interests of small-business owners throughout all 50 

states. NFIB members own a wide variety of small businesses. Founded in 1943 as a nonprofit, 

nonpartisan organization, NFIB' s mission is to promote and protect the right of its members to own, 

operate and grow their businesses. To fulfill this role as the voice for small business, the NFIB Legal 

Foundation frequently files amicus briefs in courts throughout the country in cases that will impact small 

businesses. 

The members ofNFIB are affected by the issues presented in this case because most smallbusiness owners lack specialized staff to address OSHA compliance. As a result, most of the work 

associated with OSHA recordkeeping and OSHA inspections falls to the company owner. Accordingly, 

the decision in this case will directly impact the activities ofNFIB's members. 

ARGUMENT 

The issues presented before the Commission in this case are of serious consequence to small 

businesses of all industries. Small-business owners are committed to following the laws and regulations 

that apply to their companies. This is particularly true of the OSH Act, which carries stiff fines and 

penalties. Because small firms cannot afford staff dedicated to compliance, this burden most often falls 

to the owner himself. 1 In fact, 77 percent of small-business owners conduct periodic safety inspections 

themselves.2 Compliance work faIls on top of the other responsibilities common to small-business 

owners: waiting on customers, ordering inventory, and managing all human resources responsibilities. 

1 NFIB National Small Business Poll: Paperwork and Record-Keeping, Volume 3, Issue 5, 2003. pp. 2. 

2 NFIB National Small Business Poll: Workplace Safety, Volume 2, Issue 1,2002. pp. 4. 

1 
Small-business owners spend a great deal of time making sure they comply with the letter of the 

law - and they expect the same from the bodies that regulate them. This case highlights critica1 

inconsistencies among the text of the OSH Act, its corresponding regulations and the agency's 

enforcement of the Act and its implementing regulations. In particular, we are concerned about the 

agency's failure to adhere to the six-month statute of limitations on issuing a citation for a recordkeeping 

violation. 

The Importance of Statutes of Limitations to Small Businesses 

The OSH Act unambiguously provides a six-month statute of limitations for issuing citations. 

According to section 9( c) of the Act "[ 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. § 658(c). In the case presented 

before the Commission, a citation issued in November of 2006 cited recordkeeping violations dating 

back to January 2002. A small-business owner - making a good-faith effort to comply with the 

recordkeeping requirement - would read section 9( c) and assume that he or she no longer had to worry 

about any violations that may have occurred more than six months ago. Clearly, OSHA's practice of 

issuing citations beyond the six-month time limit unfairly exposes a small-business owner to serious 

fines and penalties. 

The sixth-month limit was not included by Congress so that employers could get away with 

violations. Rather, Congress understood the burden of mounting a defense once a claim has become 

stale. An employer's ability to tell its story dissipates sharply as time passes, particularly when it comes 

to subtle details. Memories fade and employees quit, retire or die. This problem is becoming ever more 

acute for employers, exacerbated by trends in employee mobility. The likelihood that all of the 

employees and witnesses an employer needs to tell its story convincingly will still be working for the 

employer dwindles as the alleged recordkeeping violation and injury recedes into the past. 

2 
The American workforce currently has a median job tenure of only four years.3 This number is 

substantially lower (2.9) for workers between ages 25 and 30, and is lower still (1.3) for workers in their 

early twenties.4 The burden of defending stale claims is particularly difficult for small firms to meet. 

Small-business owners lack the time and resources that some large companies may have to research the 

whereabouts of former employees and find evidence for events that might have occurred five years ago. 

The u.S. Supreme Court, on several occasions, has supported the use of statutes oflimitations to 

"promote justice by preventing surprises through the revival of claims that have been allowed to slumber 

until evidence has been lost, memories have faded, and witnesses have disappeared." American Pipe & 

Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). Adhering to such legislatively-mandated statutes of 

limitations is therefore a necessity to ensure legal fairness for the governed. OSHA's practice, as 

illustrated in this case, is contrary to established precedent and places an unfair burden upon the nation's 

small-employers. 

We respectfully ask the Commission to vacate items one through five of Citation 2, in order to 

adhere to Congress's intent when crafting the OSH Act and provide small businesses fairness for 

OSHA's inspections of injury logs. 

Respectfully submitted this 27th day of November. 

q{~R.~ KAREN R. HARNED 

ELIZABETH A. MILITO 

NFIB LEGAL FOUNDATION 

1201 F Street, N.W., Suite 200 

Washington, D.C. 20004 

(202) 554-9000 

Attorneys for Amicus Curiae 

National Federation of Independent Business 

Legal Foundation 

3 See Employee Tenure Summary, Sept. 8, 2006; U.S. Department of Labor, Bureau of Labor Statistics News, 

hUp://www.bls/gov/news/release/nro.htm. 

4 !d. 

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CERTIFICATE OF SERVICE 

This is to certify that on November 27, 2007, a copy of the Brief of Amici Curiae 

National Federation of Independent Business Legal Foundation was served on the following 

counsel of record by First Class, United States Mail as follows: 

Orlando Pannochia, Esq., 

Counsel for Regional Trial Litigation, 

Charles F. James and Michael Doyle, Esq., 

Counsels for Appellate Litigation 

RoomS-4004 

Office of the Solicitor 

U.S. Department of Labor 

200 Constitution Avenue, N.W. 

Washington, D.C. 20036-3419 

Arthur G. Sapper 

Robert C. Gombar 

James A. Lastowka 

McDERMOTT WILL & EMERY LLP 

600 13th Street, N.W. 

Washington, D.C. 20005 

~R.~ KAREN R. HARNED 

ELIZABETH A. MILITO 

NFIB LEGAL FOUNDATION 

1201 F Street, N.W., Suite 200 

Washington, D.C .. 20004 

(202) 554-9000 

Attorneys for Amicus Curiae 

National Federation of Independent Business 

Legal Foundation 

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