Dennis H. Markusson to R. B. Von Wald on Amending Waukegan's OSHA Logs (1979)

An eight-page memo of April 19, 1979, marked attorney's work product, from Dennis H. Markusson, Johns-Manville's associate general counsel, to R. B. Von Wald, copied to G. Earl Parker, on the Waukegan plant's failure to record occupational disease cases on OSHA logs since July 1972, "a total of 23 cases." Markusson found "certainly a prima facie indication that we have failed to comply with recording and reporting regulations with respect to occupational illness." He recommended amending the logs back to 1972 by addenda, with workers who did not want the union told entered as "John Doe 1, John Doe 2, etc."

What it shows

Markusson's sixth recommendation was "That OSHA not be specifically advised of our amendment to OSHA records as outlined above," and the amended annual summaries were not to be reposted for inspection. Disclosure, he reasoned, would not establish good faith, was not legally required, and "would carry with it the strong likelihood of an immediate citation." He judged that the criminal provisions of the Occupational Safety and Health Act did not apply, since the omission was a failure to keep records rather than a false statement, and put possible civil penalties at more than $50,000. The memo answered Szcygielski's report and took a different course from Dr. Kotin's memo, which had urged reporting the cases to OSHA at once.

In Johns-Manville's chronology

Johns-Manville's own chronology of what the company knew describes this document as follows:

Memorandum to R.B. Von Wald from D.H. Markusson, 4/19/79 regarding OSHA Reporting System - Occupational Disease - Waukegan. The memorandum concerns the information received from the Waukegan facility that Waukegan has not logged 23 individuals identified as having pneumoconiosis since the effect date of OSHA in 1972. On page 2, Markusson recommends that "6. OSHA not be specifically advised of (Manville's) amendment to OSHA records as outlined above." On page 3, Markusson states that there is certainly a prima facie indication that Manville has failed to comply with recording and reporting regulations with respect to occupational illness.

On page 4, Markusson states that Manville should treat the 23 cases identified by Waukegan as information requiring the amendment of OSHA logs of occupational injuries and illnesses. Further on page 4, Markusson states that there has been concern expressed that due primarily to the length of time during which pneumoconiosis cases have not been entered on the OSHA log and the particularly extensive nature of asbestos related disease that Manville might be subject to the criminal penalty sections of the Occupational Safety and Health Act. Based upon the analysis, Markusson does not feel the criminal sanctions section of the Occupational Safety and Health Act are applicable to the Waukegan situation, and at the very least Manville has a strong defense to any attempt to proceed against the company for criminal sanctions.

On page 6, Markusson states an item of serious concern at Waukegan and the subject of NLRB litigation is the disclosure to the union of the identity of individuals with occupationally related illnesses. On page 7, Markusson suggests that Waukegan amend Manville's logs entering those employees who request that his identity not be made known to the union as John Doe 1, John Doe 2, etc. Continuing on page 7, Markusson suggests that at the present time OSHA not be advised as to the amendment of Manville's logs and OSHA records. The reasoning in arriving at this recommendation is that nothing will be gained by making such a disclosure to OSHA at the present time. Legally, Manville will not establish good faith by making such a disclosure, and secondly, there is no legal obligation to make such a disclosure. In the author's judgment, such a disclosure to OSHA would carry with it the strong likelihood of an immediate citation.

Related documents

• Dr. Paul Kotin to F. L. Pundsack on Waukegan's Failure to Report Occupational Disease Cases to OSHA (1979)