Docket No. 82-0630_84-0781

SECRETARY OF LABOR,

Complainant,

GENERAL MOTORS CORPORATION,
ELECTRO-MOTIVE DIVISION,

Respondent.

LOCAL UNION 719, UNITED
AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA,
INTERNATIONAL UNION,

Authorized Employee
Representative.

DOCKET NOS. 82-0630,
84-0781,
84-0816

DECISION

Before: MONTOYA and WISEMAN, Commissioners.[[1/]]

BY THE COMMISSION:

Certain employees of General Motors Corporation, Electro Motive Division ("GM"), filed requests with GM for access to its medical and exposure records concerning them. Those requests were made pursuant to the records access rule, 29 C.F.R. ї 1910.20, promulgated by the Secretary of Labor's Occupational Safety and Health Administration ("OSHA"). GM denied the requests on the ground that they related to pending worker's compensation ("WC") claims that those employees had brought against it in Illinois. We now review the merits of the Secretary's citations issued to GM based on those access denials.

GM claims that the access requests were invalid because they effectively change Illinois' WC law, in violation of ї 4(b)(4) of the Occupational Safety and Health Act, 29 U.S.C. ї 653(b)(4). That section states, "[n]othing in this Act shall be construed to supersede or in any manner affect, any workmen's compensation law ..."[[2/]] GM contends that the result of enforcing the employees' requests would be to give employees greater rights than GM has to pretrial disclosure of information relevant to their pending WC proceedings. GM also argues that its refusal to provide access is at most a de minimis violation of the records access rule, warranting no penalty or abatement requirement.

Former Commission Administrative Law Judge Edward A. Bobrick rejected GM's arguments, found a willful and serious violation in all three cases, and assessed a $10,000 penalty in each case. We affirm the judge's findings of violations, but find them non-willful and impose a $1000 penalty in each case, for the reasons that follow.

I. Background

The 1982 case involves William Havell, an employee at GM's La Grange, Illinois, facility. Havell had filed a claim against GM in 1979 under the Illinois Worker's Compensation Act. 111. Rev. Stat. Ch. 480 І 138. The basis for that claim was that Havell "injured his body while working."

In March 1982, Havell submitted to GM, through the law firm that represented him in the WC claim, a signed request for access to "[a]ll medical and exposure records" concerning him. The stated purpose of the request was "Investigation and legal representation." Havell also specifically authorized release of the records to the law firm.

Upon receipt of the records access request, GM sought an opinion from its legal counsel about whether to comply. GM's legal counsel advised that the request was invalid under ї 4(b)(4) of the Act because the "obvious purpose of this request under OSHA is to gather information for use in the [WC] matter that cannot be gathered under the Illinois Compensation law." In support, the counsel noted that the Illinois law allows no prehearing discovery regarding pending WC claims. In denying the records access request, GM set forth the reasons supplied by its counsel.

The Secretary issued a one-item citation to GM in June 1982, with a single $480 proposed penalty. Item 1A alleged a failure to provide Havell's designated representative with access to GM's, medical records on him, contrary to ї 1910.20(e)(1)(i).[[3/]] Item 1B alleged a failure to provide the representative with access to requested exposure records that GM kept concerning Havell, contrary to ї 1910.20(e)(2)(i).[[4/]]

In June 1983, shortly before the hearing on the merits, the Secretary moved to amend the citation to allege that the item was both willful and serious, and to amend the proposed penalty to $4800. The judge granted the motion.

There is no dispute that GM failed to comply with the rule.[[5/]] Accordingly, the Secretary and GM submitted the case for resolution of only the following issues:

....the parties desire to limit this case to the questions of whether Mr. Havell's request for access to medical and exposure records can be valid in view of Section 4(b)(4) of the Occupational Safety and Health Act, the characterization [sic] of the violation, if any, and the penalty, if any....

The two 1984 cases arose out of similar requests for records access, filed by, or on behalf of, two other employees at the same facility. The parties have agreed to be bound in those cases by the final decision in the 1982 case, except that GM has the option of presenting additional arguments on the alleged willfulness and proposed penalties in the 1984 cases.

II. Whether ї 1910.20 violates ї 4(b)(4), as applied here

The language of ї 4(b)(4) (quoted above at n. 2) is quite broad. However, we believe that the United States Court of Appeals for the D. C. Circuit properly interpreted that language in its comprehensive decision in the lead standard case. United Steel- workers of America v. Marshall, 647 F.2d 11891 1234-36 (D.C. Cir. 1980). cert. denied,453 U.S. 913, 101 S. Ct. 3148 (1981). It essentially held that ї 4(b)(4) means only that the Act and OSHA regulations are not to be interpreted to alter the terms of any WC law.[[6]] Accord, Pratico v. Portland Terminal Co., 783 F.2d 255, 264-67 (1st Cir. 1985).

The OSHA records access rule does not change the terms of either Illinois' WC Act or its Occupational Diseases Act. Ill. Rev. Stat. Ch. 48, І 138, 172.36 et. seq. ("Illinois Acts"). Nor must the Illinois Industrial Commission (IIC), which governs the adjudication of cases under both Acts, do anything inconsistent with their terms, as a result of ї 1910.20.[[7/]] Thus, ї 4(b)(4) has not been violated.[[8/]]

Our reading of the court's decision in Steelworkers supports this conclusion. The issue in Steelworkers was whether the medical removal protection ("MRP") benefits for employees provided by the lead standard superseded or affected WC laws in violation of ї 4(b)(4). The employers argued that because MRP benefits exceeded the benefit levels under WC laws for lead exposure, MRP in effect impermissibly modified those laws. The court held that "though MRP may indeed have a great practical effect on workmen's compensation claims, it leaves the state schemes wholly intact as a legal matter, and so does not violate Section 4(b)(4)." 647 F. 2d at 1236 (emphasis in original). If MRP, which largely negated the WC limitations on employees' recovery for lead-related illness, does not "affect" WC laws for purposes of ї 4(b)(4), certainly the records access rule that is now before us does not "affect" them.

There was testimony that pretrial "discovery" per se is not provided for under the Illinois Acts.[[9/]] However, those Acts provide ample opportunity for both WC claimants and their employers to obtain medical and exposure records for use in WC proceedings. For example, the Illinois Acts require that every person rendering treatment or services in connection with a claim must turn over their records to any party on written request. Id., І 138.8(a).[[10]] The IIC may permit pre-trial depositions of any person whose testimony is deemed necessary by either party, for use as evidence at trial. Id., І 138.16.[[11/]] The IIC is required to issue subpoenas at the request of either party for the attendance of witnesses and production of documents. Id.[[12/]]

Havell's effort to obtain information about his health through the records access rule violates neither the letter nor the spirit of the Illinois Acts. Procedures under those Acts are designed to minimize costs and to simplify and speed the process, so that an eligible employee may gain prompt and equitable compensation. E.g., ІІ 138.16, .16a. See Kelsay v. Motorola, 74 Ill. 2d 172, 180-81, 384 N.E.2d 353, 355-57 (1978). As a result, those Acts do not provide for the pretrial discovery allowed in certain other civil proceedings. Records access under ї 1910.20, however, does not conflict with these objectives because such access does not slow down or otherwise interfere with Illinois WC proceedings. The Illinois Acts are not intended to negate information rights that employers or employees have under other laws.

It is also noteworthy that Congress did not anticipate that the required disclosure of employer records on toxic materials or harmful physical agents would violate ї 4(b)(4). The Act instructs the Secretary to issue regulations requiring employers to maintain accurate records of all monitoring or measuring mandated under the Secretary's standards. ї 8(c)(3) of the Act, 29 U.S.C. ї 657(c)(3). It further states:

Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents.

Id. (emphasis added). Section 8(c)(3) of the Act requires appropriate provisions for access by each employee to medical and exposure records.

Also, we agree with OSHA's formal interpretation that the rule is not rendered unenforceable by the mere fact that an access request is related to private litigation, including WC litigation. Access to Employee Exposure and Medical Records; Partial Stay; Interpretations, 46 Fed. Reg. 40,490 (Aug. 7, 1981).[[13/]] That interpretation was issued long before the citations in these cases, and it is consistent with the specific mandate of records access in the Act.

That interpretation shows that ї 1910.20 was not intended to change WC discovery provisions. OSHA made clear that the rule does not require disclosure of records created by the employer in anticipation of litigation and which would be unavailable to the employee in WC proceedings for that reason. Here, GM does not claim that the requested records fall under that exception to discovery (the so-called "work product" doctrine), or under any other specific exemption from discovery. It merely claims that ї 1910 20 unavoidably conflicts with ї 4(b)(4), whenever there is a pending WC claim. Such a notion lacks merit.

Although the access required by the Act may have an indirect, practical impact on the timing of certain disclosures in WC proceedings, it has no legal effect on them. It does not change the terms of the Illinois Acts, or require actions inconsistent with those terms in WC proceedings. We therefore conclude that the rule does not violate ї 4(b)(4).[[14/]]

In a related argument, GM claims that the records access rule violates its due process rights. It relies on Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208 (1973). There, the Supreme Court held that a state criminal statute regarding discovery denied the defendant due process of law. That statute required the defendant to disclose, before trial, the identity of alibi witnesses he planned to have testify. It did not explicitly require the state to disclose the identity of witnesses it planned to call to refute the alibi. The Court stated:

It is fundamentally unfair to require a (criminal) defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.

412 U.S. at 476, 93 S.Ct. at 2212-13. However, we conclude that this decision does not control the cases before us, because it is based on concern for the rights of criminal defendants. The special protections given a criminal defendant are simply not required in civil cases like WC proceedings. The Supreme Court has held that "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92A S.Ct. 2593, 2600 (1972) (full panoply of rights given to criminal defendant does not apply to parole revocations). Accord, e.g., Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902 (1976) (proceedings to terminate Social Security disability benefit payments). WC proceedings need not adhere to the strictures of criminal or even civil judicial proceedings, so long as the substantial rights of the parties are not infringed. E.g., Crowell v. Benson, 285 U.S. 22, 48, 52 S.Ct. 285, 291 (1932) (rejecting claims that summary administrative procedures under Federal WC law, Longshore and Harbor Workers' Compensation Act (LHWCA), violate due process).

Section 1910.20 does not infringe the substantial rights of parties in Illinois WC proceedings. Those rights are not infringed by the mere fact that one party may obtain information from the other under another law, without having to provide reciprocal information. The law that was unsuccessfully challenged in Crowell v. Benson permitted an imbalance of prehearing information. That imbalance was essentially similar to the imbalance that might exist in an Illinois WC proceeding, with or without a related records access request under ї 1910.20.[[15/]] The Court held that due process was preserved nevertheless, because it was implicit under the law that all "facts...and their sources shall be shown in the record and be open to challenge and opposing evidence." Id. The same rights are preserved under the Illinois Acts.[[16/]]

Thus, ї 1910.20 does not deprive parties due process in Illinois WC cases, and GM's due process argument is rejected. We affirm a violation in each of these three cases.

III. Whether the violations were willful

A willful violation is one committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety. E.g., Williams Enterprises, Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD І 27,893, p. 36,589 (No. 85-355, 1987). It is differentiated from other types of violations by a "heightened awareness -- of the illegality of the conduct or conditions -- and by a state of mind -- conscious disregard or plain indifference." Id., However, a violation is not willful if the employer had a good faith belief that it was not in violation. The test of good faith for these purposes is an objective one -- whether the employer's belief concerning a factual matter, or concerning the interpretation of a rule, was reasonable under the circumstances. Id. 13 BNA OSHC at 1259, 1986-87 CCH OSHD at p. 36,591; Mel Jarvis Construction Co., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD І 25,713, p. 32,060 (No. 77-2100, 1981).[[17/]]

Based on the particular circumstances here, we find that GM had an objective, good faith basis for believing that it was not required to comply with the terms of the records access rule. That basis includes, but is not limited to, its reasonable, although in our view incorrect, interpretation of ї 4(b)(4). We cannot find, on the state of these records, that GM's refusal to comply actually was based on an underlying, willful motive. Thus, we find that the violations are not properly classified as willful.

Initially, we note that the issue before us is limited, due to the particular stipulations between the Secretary and GM.[[18/]] As noted above, the Secretary stipulated that she would be bound in the 1984 cases by the final decision regarding the 1982 case. Thus, if the 1982 violation is found non-willful, the 1984 violations also should be found non-willful. Our determination of whether the 1982 violation was willful depends on GM's motives at the time the alleged violation occurred, which of course was before the citation was issued. Events occurring after the citation may be relevant in determining what GM's motives were for violating the regulation, but they could not be the basis for a finding of willfulness in and of themselves.

We therefore first examine GM's initial basis for failing to comply with Havell's request in 1982. The Secretary stipulated that GM routinely complies with records access requests that it deems consistent with the cited regulation, and that GM provided access in response to all of the requests it received in 1982 (approximately 10), except for Havell's. When it received Havell's request, GM sought the opinion of its attorneys on whether to disclose the documents requested, in light of the pending WC claim.

As our earlier response to GM's ї 4(b)(4) arguments indicates, its attorneys had a substantial legal question to answer. The language of ї 4(b)(4) is ambiguous, as the D.C. Circuit noted in Steelworkers. At that time, the Commission had not addressed the permissible effects of the Act on WC cases, and Steelworkers involved a somewhat different issue.

We therefore conclude that it was not imprudent for GM's attorneys to counsel it to ask the Commission to clarify the effect of ї 4(b)(4), before turning over documents relevant to the WC claim to Havell's attorneys. The fact that GM acted consistently with the advice of its legal counsel is also relevant to whether its noncompliance was willful. E.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128-30, 105 S.Ct. 613, 625-26 (1985). Thus, although GM's suggested interpretation of ї 4(b)(4) may seem a bit "strained," as the judge found, there was an objective, good faith basis for GM to believe that it was excused from compliance with the records access rule in the context of Havell's records access request.

In the judge's opinion, the violations were willful because GM singled out employees who had filed WC claims by refusing them access to all medical and exposure records, regardless of whether the records related to those claims. He found that the fact that GM had sought and relied on its legal counsel's opinion did not negate willfulness, because GM did not offer to turn over documents unrelated to Havell's WC claim.

We note, however, that there is no evidence that GM knew, at the time the 1982 citation was issued, that it had records on Havell that were unrelated to the WC claim. When the 1982 violation occurred, the stated basis for Havell's WC claim was merely that he had "injured his body while working." GM's counsel concluded that the records access request arose out of that claim, and that its "obvious purpose" was to gather information for use regarding the WC claim. The fact that the records access request was filed by the attorneys who represented Havell in the WC case underscores the plausibility of that conclusion.

The Secretary contends that GM's willfulness is demonstrated by its failure to provide Havell access to all medical and exposure records, even when the WC claim was amended, a few months after GM contested the citation, to specify that the alleged injury was to the "lower back." This argument is without merit. We cannot base a finding of willfulness on the mere fact that GM did not abate a cited violation during the pendency of these proceedings. Employers are not required to abate alleged violations until their contest is finally decided by the Commission, where the contest is "initiated by the employer in good faith and not solely for delay and avoidance of penalties . . . ." ї 10(b) of the Act, 29 U.S.C. ї 659(b).

Moreover, GM still had good faith bases for believing that compliance was not required, even after Havell's WC claim was amended. GM claimed that Havell's jobs never involved exposure to hazards about which records must be disclosed under the regulation -- "toxic substances or harmful physical agents." See, e.g., ї 1910.20(b)(1).[[19/]] There is no contention that this position was not held in good faith, although GM subsequently waived that position as part of the stipulations. GM also preserved the right to rely on the legal claims of industry in a case then pending, which challenged the validity of the records access rule. Louisiana Chemical Ass'n v. Bingham, 550 F.Supp. 1136 (W.D. La. 1982), aff'd per curiam, 731 F.2d 280 (5th Cir. 1984). There is no claim that GM's reliance on the industry's arguments in that case was not maintained in good faith, although those claims were rejected by the District Court following GM's notice of contest, and were rejected by the Fifth Circuit in May 1984. GM's actions after the 1982 citation do not demonstrate that its initial noncompliance was willful.[[20/]]

Thus, we cannot conclude that the 1982 violation was willful.[[21/]] Because the Secretary has agreed to abandon the claim that the 1984 violations were willful if the determination is made that the 1982 violation was not willful, we find that none of the violations should be classified as willful.

IV. Whether the alleged violations should be termed de minimis

The basis for GM's argument that these alleged violations are de minimis is certain dicta in a footnote to a Commission decision involving a similar records access request. Johnson & Johnson Products, Inc., 11 BNA OSHC 2097, 1984-85 CCH OSHD І 26,988 (No. 81-1339, 1984). There, the Commission vacated citations issued to two companies for denial of employee requests for access to exposure records on the ground that the employees had only requested access to medical records. In the relevant footnote, the commission majority apparently concluded that, even if the employees had included exposure records in their requests for access, the employers' failure to comply with these requests would only have been a de minimis violation of the Act, because the purpose of the requests was to obtain records for use in WC proceedings and WC proceedings are unrelated to the safety and health purposes of the Act.[[22/]]

We must disagree with that dicta. Congress declared in the Act that WC laws serve a similar purpose to the Act:

the full protection of American workers from job-related injury or death requires an adequate, prompt, and equitable system of workman's compensation as well as an effective program of occupational health and safety regulation . . . .

Former 29 U.S.C. ї 676 (1971). (That section of the Act established a National Commission on State Workmen's Compensation Laws, charged with evaluating whether those laws were adequate, prompt, and equitable.)

WC laws promote occupational safety and health because they provide a sure financial recovery for an employee accidentally injured on the job, and make the employer responsible for paying the costs. See S. G. Borello & Sons, Inc. v. Dep't of Industrial Relations, 48 Cal. 341, 769 P.2d 399, 406 (1989) (California WC law). The Federal LHWCA is a comparable WC law. See Calbeck v. Travelers Ins. Co., 370 U.S. 114, 124, 82 S.Ct. 1196, 1202 (1962). That Act is designed to motivate employers to provide "the fullest measure of on-the-job safety" for their employees. Bath Iron Works Corp. v. White, 584 F.2d 569, 575 (1st Cir. 1978). See also Alaska Packers Ass'n v. Industrial Accident Commission of California, 294 U.S. 532, 541, 55 S.Ct. 518, 521 (1935). We therefore conclude that the purposes of the Act and of WC laws are complementary.

We cannot adopt a general classification of de minimis for noncompliance with records access requirements, although a particular departure from the rule's terms conceivably could be so minor as to qualify as de minimis. The Act's recordkeeping requirements "play a crucial role in providing the information necessary to make workplaces safer and healthier." General Motors Corp., Inland Div., 8 BNA OSHC 2036, 2040-41, 1980 CCH OSHD І 24,743, p. 30,470 (No. 76-5033, 1980). Employee access to medical and exposure records also can play a crucial role in protecting the employee's health. See, e.g., Amoco Chemicals Corp., 12 BNA OSHC 1849, 1852, 1856, 1986 CCH OSHD І 27,621, p. 35,901 (No. 78-250, 1986) (employer had medical records indicating that employee had pleural effusion -- a symptom of possible cancer -- but failed to inform employee of condition).

Lastly, we conclude that GM's argument lacks merit because the requests in these cases were not expressly limited to records relevant to the WC claims, and the parties' submissions do not show that only such records were covered by the requests. Havell had worked for GM for 20 years. GM does not dispute in this case that he was exposed to toxic substances and harmful physical agents within the scope of the records access rule. Its job descriptions for the positions held by Havell show that he would have been subject to exposure to carbon monoxide, welding smoke and fumes, dust from grinders, as well as noise from air hammers. Havell also told OSHA's inspector that he had been exposed to caustic chemical solutions in tanks near his work area. GM has not indicated that it attempted at any time to determine whether it has medical or exposure records relative to Havell that go beyond his lower back injury claim. For these reasons, the violations here are not properly classified as de minimis.

V. Whether the violations are serious

The judge found the violations to be serious because access to the records covered by ї 1910.20 is "paramount as a first step in avoiding serious illness and injury caused by exposure in the workplace to the toxic substance." However, the record does not indicate what records GM had relevant to Havell, or whether they related to a serious illness or injury. No evidence was introduced that GM monitored the areas where he worked for toxic substances or harmful physical agents. As the Secretary notes, the rule does not require employers to make records, but merely to provide access to existing records. Thus, the issue is whether a failure to turn over records covered by the rule should be considered serious per se.

The definition of a serious violation under the Act is as follows:

[A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

29 U.S.C. ї 666(k). There have been divergent views expressed on whether violations similar to the violations we affirm here are serious under the definition in the Act. In one case, an employer's failure to pay for medical examinations was termed a serious violation of the inorganic arsenic standard (29 C.F.R. ї 1910.1018). Phelps Dodge Corp, v. OSHRC 725 F.2d 1237 (9th Cir. 1984), aff'ing, 11 BNA OSHC 1441, 1448-49, 1983-84 CCH OSHD І 26,552 (No. 80-3203, 1983). The court affirmed the Commission's reasoning on the issue, stating:

Phelps Dodge interprets the statute to require that to be serious, the violation must potentially cause physical harm. This interpretation is erroneous. Rather, the court looks to the harm the regulation was intended to prevent, and if that harm is death or serious physical injury, a violation of the regulation is serious per se.

725 F.2d at 1240 (emphasis in original). In a later case, the Commission held that the fact that a regulation is designed to protect against a serious hazard does not make every violation of its provisions serious. Duquesne Light Co., 11 BNA OSHC 2033, 2038-39, 1984-85 CCH OSHD І 26,959, pp. 34,602-03 (No. 79-1682, 1984) (isolated, one-day asbestos removal operation involving excessive asbestos exposure was not shown to be sufficient to cause serious physical harm).

Thus, a complex issue is presented. However, we do not find it necessary to resolve the issue at this time, as its resolution here would not affect the abatement requirements or penalties involved and none of the parties' rights will be adversely affected by our decision not to resolve this issue. We hereby limit the effect of the judge's finding that the violations were serious to these cases. That finding is not to be used, for example, as a basis for imposing greater liability on GM in any other case. Nor will the Secretary be constrained in other cases. The Secretary may propose appropriate penalty, classification and abatement requirements in any future citation, and may rely on the underlying facts found here. Also, the union party's rights under the Act are not prejudiced. (For example, the abatement date is unaffected.) There being no harm to any parties, the Commission exercises its discretion not to decide the question of seriousness here. See, e.g., Williams Construction Co., 6 BNA OSHC 1093, 1095 1977-78 CCH OSHD І 22,325, p. 26,895 (No. 11526, 1977) (Commission need not decide whether judge erred in finding violation repeated, where penalty would be appropriate for nonserious violation); Westburne Drilling. Inc., 5 BNA OSHC 1457, 1977-78 CCH OSHD І 21,814 (No. 15631, 1977). See also, Leone Construction Co., 3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD І 20,387, p. 24,322 (No. 4090, 1976) (unreviewed part of judge's decision does not constitute binding Commission precedent).

VI. Penalties

Having found the violations non-willful, we conclude that a $1000 penalty is appropriate for each case. Before the citations were amended to allege willfulness, the Secretary had proposed a penalty of $480 for the 1982 case and $1000 for each of the 1984 cases. After the amendment, the Secretary's proposal was to assess $10,000 in each case. The maximum allowable penalty for either a serious or nonserious violation has been $1000 throughout these proceedings, under 29 U.S.C. ї 666(b) and (c). Cf., Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, ї 3101 (Nov. 5, 990) (OSHA penalty limits increased seven-fold).

Penalties are to be assessed in light of the gravity of the violation, the employer's size, good faith, and history of violations. 29 U.S.C. ї 666(j). The gravity of the violations is substantial. As noted above, the cited provisions derive from an express requirement in the Act that employees have access to medical and exposure records concerning them. The purpose of that requirement is to allow employees to assess their health and factors affecting it. E.g., S.Rep. No. 91-1282 91st Cong., 2d Sess. 17 (1970), reprinted in Legislative History of the Occupational Safety and Health Act, 157 (1971). Records access can play a crucial role in an employee's protection of his or her health, as discussed above.

Also, GM is among the nation's largest corporations, and has a history of violations. As to good faith, although we have found an objective, good faith basis for GM's noncompliance, its failure to provide access after it knew that the requests were not limited to the subject of the WC claims does not indicate a high degree of good faith.

Thus, the citation in each case before us is affirmed as a non-willful violation, and a total penalty of $3000 is assessed, representing $1000 for each case.

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: February 15, 1991

SECRETARY OF LABOR,

Complainant,

ELECTRO-MOTIVE DIVISION,
GENERAL MOTORS CORPORATION,

Respondent.

OSHRC Docket No. 82-0630

DECISION AND ORDER

Appearance:

FRANCIS X. LILLY, Esq., Solicitor of Labor,
JOHN SECARAS, Regional Solicitor,
KENNETH HENRY, Esq., Office of the Solicitor,
Chicago, Illinois for
Raymond J. Donovan, Secretary
of Labor, U.S. Department of Labor, Complainant.

Charles M. Chadd, Esq., Pope, Ballard, Sheppard
& Rowle, Ltd.
for Electro-Motive Division,
General Motors Corporation, Respondent.

Jerome Schur, Esq., Katz, Friedman, Schur & Eagle
Attorney for Local 719, United Automobile,
Aerospace and Agricultural Implement
Workers of America (UAW), the
Authorized Employee Representative.

BOBRICK, Judge

This proceeding was commenced pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafter referred to as the "Act"), wherein Respondent, Electro-Motive Division, General Motors Corporation, contested a Citation issued by Complainant, Raymond J. Donovan, Secretary of Labor, U.S. Department of Labor.[[1/]]

The Citation charged Respondent with a serious violation of the Occupational Safety and Health Standards, Subpart C-General Safety and Health Provisions, 29 C.F.R. ї1910.20, entitled Access to Employee Exposure and Medical records (hereinafter referred to as the "Standard"). The Citation alleged violations of 29 C.F.R. ї 1910.20e(1)(i) and (e)(2)(1) [[2/]] as follows:

1A. 29 C.F.R. ї 1910.20(e)(1)(i): The employer did not, whenever an employee or designed representative requests access to a record, assure that access is provided in a reasonable time, place and manner but in no event later that fifteen (15) days after the request for access is made:

On March 18, 1982, the representative of William Havell requested access to all of Mr. Havell's medical records. None were provided.

1B. 29 C.F.R. 1910.20(e)(2)(i): The employer did not, upon request, assure the access of each employee and designated representative to employees exposure records relevant to the employees:

On March 18, 1982, the representative of William Havell requested access to all of Mr. Havell's exposure records. None were provided.

The Citation was issued as a result of an investigation prompted by a complaint made by an employee to the Occupational Safety and Health Administration (hereinafter "OSHA") concerning a denial by Respondent of a request by the employee for his medical and exposure records.

FACTS OF CASE

The relevant facts in this case are fairly straightforward and, to a great extent, have been stipulated by the parties. [[3/]]

Electro-Motive Division, General Motors Corporation, is and at all relevant times hereto was, engaged in a business affecting interstate commerce, to wit, the manufacture of diesel engines and related activities (Complaint, Par. Il and III; Answer, Par. II and III). At all times relevant to this matter, Respondent had kept and maintained employee exposure records and employee medical records as such terms are defined by 29 C.F.R. ї 1910.20(c)(2)(5) and (6) (Stip. Par. 2).

William Havell, an employee of Electro-Motive since 1962, and during all times mentioned herein, filed a claim against Respondent on or about April 3, 1979, pursuant to the Illinois Workers' Compensation Act (Stip. Par. 2, 3 and Ex. A and G). The employee subsequently filed an amended claim in September, 1982. The injury alleged by the employee in his compensation claim was for an injury to his lower back suffered on January 24, 1979. This workers' compensation claim was pending all during relevant times involving these proceedings (Stip. Par. 3 and Exhibit B). The employee retained a law firm to represent him with respect to his claim for workers' compensation benefits (Stip. Par. 4).

In March 1982, the employee executed an "Authorization for Release of Medical Record Information Pursuant to 29 C.F.R. ї 1910.20" authorizing the release by Respondent of "any and all medical and exposure records" to the attorneys retained by him as his "designated representative" as said term is defined by 29 C.F.R. ї 1910.20(e)(3) (Stip. Par. 6 and Exhibit D). At the same time, the employee executed a "Request for Access to Medical or Exposure Records" requesting that his designated representative, his attorneys, be provided access to "all medical and exposure records" (Stip. Par. 7 and Exhibit E). This request was apparently made pursuant to 29 C.F.R. ї 1910.20 and to joint guidelines developed and agreed to by Respondent and the employees Collective Bargaining Representative, such guidelines being entitled, "Guidelines Implementing the OSHA Standard on Access to Employee Exposure and Medical Records." The request was made on a form provided by the Respondent pursuant to these guidelines (Stip. Par. 5 and 7 and Exhibits C and E). The stated purpose of the request for the records was "investigation and legal representation" (Stip. Par. 6 and 7, Exhibits D and E). Nothing in the authorization or the request for access limited the use of the records sought by the employee or his attorneys (Stip. Par. 7).

Copies of the above mentioned forms were sent by the employees' attorney on March 18, 1982 to Respondent along with a request for all of the employees medical and exposure records. Said request was received by Respondent on March 19, 1982 (Stip. Par. 8 and Exhibit F). Subsequently Respondent, after obtaining a letter from its attorney advising it on matters dealing with access to medical and exposure records under the Standard, refused to comply with the employees request and continues to refuse to comply with the aforementioned request (Stip. Par. 10, 11, Ex. H).

Respondent had granted its other employees, and their designated representatives, access to medical and exposure records and had guidelines for that purpose (Stip. Par. 5). For example, in 1982 Respondent processed approximately ten requests for access in its Electro-Motive Division and provided access in all but the present case (Stip. Par. 5). In this case, upon receipt of employee's request for access, Respondent obtained a legal opinion from its counsel as to the validity of the request (Stip. Par. 5 and 11, Ex. H). Respondent's Counsel's opinion was that the request was invalid because it was made while the employee had a pending workers' compensation claim, and that it sought to gather information, by use of the cited standard, that was denied him under Illinois Law (Stip. Exhibit H). Respondent denied the request and did not provide the employees attorney with the employees medical and exposure records (Stip. Par. 10).

The laws in Illinois relating to injuries or diseases arising out of the course of employment are the Illinois Workers' Compensation Act, Ill. Rev. Stat. Ch. 48, її 138 et seq., and the Illinois Occupational Disease Act, Ill. Rev. Stat. Ch. 48, її 172.36 et. seq. (hereinafter collectively referred to as the "Workers' Compensation Law").

The Illinois Workers Compensation Law does not provide for the type of discovery usually associated with proceedings in the Federal District Courts or before Administrative bodies such as the Occupational Safety and Health Review Commission. However, both the Workers Compensation Law and the rules governing practice before the Industrial Commission do provide their own form of discovery.

The Illinois Workers' Compensation Law provides that the "Commission ... or...Arbitrator shall on written request of either party... issue subpoenas for the attendance of such witnesses and production of such books, papers, records, and documents as shall be designated in said application..." (Ill. Rev. Stat. Ch.48, ї 138.16). Moreover, Section 8 of the Workers' Compensation Law specifically provides for access to medical records:

Every hospital, physician, surgeon, or other person rendering treatment or services in accordance with the provisions of this Section shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer, the employee or his dependents, as the case may be, or any other party to any proceeding for compensation before the Commission, or their attorneys. (I11. Rev. Stat. Ch. 48, ї138.8(a).

This is a form of discovery for both parties (Tr. 86-88, 90, 91).

Following the Workers Compensation Law are the rules governing practices before the Industrial Commission. These rules provide for the issuance of subpoenas to compel witnesses and/or documents to be produced at time of hearing (Resp. Ex. No. 1, Rule No. 3(4). Evidence dispositions can be taken before or after hearings; this includes the use of interrogatories (Resp. Ex. No. 1, Rule No. 3(5). Lastly a claimant /employee must submit himself to an examining physician, as properly arranged by the employer (Resp. Ex. No. 1. Rule No. 2(10).

As a result of Respondent's refusal to provide the medical and exposure records to the employee, as requested, a complaint was filed with the Complainant alleging a violation of 29 C.F.R. ї 1910.20 et. seq. An inspection was thereupon conducted of Respondent. A Citation and Notification of Penalty was issued on May 17, 1982, as a result of the inspection, alleging a two-part, single, serious violation of 29 C.F.R. ї1910.20 and its subparts, along with a proposed penalty of $480.00 (Complaint, Par. IV(c); Answer, Par. IV(c). Respondent duly contested the Citation, giving rise to this case. On August 3, 1982, pursuant to its request, the Authorized Employee Representative, Local Union 719, United Automobile Aerospace and Agricultural Implement Workers of America (UAW), was granted party status in this case.

On June 10, 1983, the Complainant filed a Motion which sought to amend his Complaint and the Citation to allege a Willful-Serious violation of the Act and the regulations promulgated thereunder. This Motion further sought to amend the proposed penalty to $4,800.00. The Motion was addressed at the hearing held herein on June 22, 1983. By reason of the fact that both parties indicated that neither of them would alter or change their planned introduction of evidence, whether the Motion was granted or not, (Tr. 8), the Motion was held in abeyance and taken under advisement for later disposition at the conclusion of the case after all the parties had filed their post trial brief and had an opportunity to brief the issue (Tr. 8).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. WHETHER THE SECRETARY'S MOTION TO AMEND HIS COMPLAINT
AND THE UNDERLYING CITATION AND NOTIFICATION
OF PENALTY SHOULD BE GRANTED

On June 10, 1982, 12 days before trial, the Complainant filed a Motion to Amend his Complaint, which in essence sought to change the nature of the alleged violation from serious to willful-serious, and which amended the proposed penalty to $4,800. Respondent objected to the amendment on the grounds that the case had been pending for approximately a year, the amendment was proffered less then two weeks before trial, and that it seriously changed the nature of the case.

We find that since the Complainant has the burden of proving, by a preponderance of the evidence, the existence of its allegations and since both parties indicated that their proofs offered at hearing would not be affected one way or the other by granting the amendment (Tr. 8), we see no prejudice coming to Respondent by allowing the filing of said amendment.

Case law is quite clear on the matter that in the absence of prejudice, motions to amend are to be freely granted. Miller Brewing Co., 7 BNA OSHC 2.55, 1980 CCH OSHD І 24,168 (1980); United Cotton Goods, Inc., 10 BNA OSHC 1389, 1982 CCH OSHD І 25,928 (1982); Brown & Root, Inc., 8 BNA OSHC 1055, 1980 CCH OSHD І 24,275 (1980). Accordingly, Complainant's Motion to Amend his Complainant is hereby GRANTED.

II. WHETHER 29 C.F.R. ї 1910.20 et. seq. VIOLATES SECTION
4(b)(4) OF THE ACT, 29 U.S.C. ї 653 (b)(4)

Respondent raises as the principal issue in this case, and as its primary defense to the Citation, that enforcement of the cited standard, by way of the Citation, under the facts of this case runs afoul of Section 4(b)(4) of the Act. Section 4(b)(4) specifically mandates that:

Nothing in this Act shall be construed to supercede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

In its factual context Respondent raises the argument whether 29 C.F.R. ї 1910.20, et. seq., "on access to employee records can validly permit an employee with a pending workers' compensation claim to have access to his employer's medical and exposure records for use as discovery in that case at a time when he is denied those records under state workers' compensation law."

Respondent essentially argues that the Illinois Workers Compensation Law does not permit pretrial discovery by one party, the employee in this case, against the other, that being the Respondent; and that if the employee (or his attorney) is allowed use of 29 C.F.R. ї 1910.20 to gain access to these records, the employee would be granted a right that is denied him under Illinois compensation law and give him an unfair advantage not otherwise provided for in the Workers' Compensation Law.

Respondent views the employee obtaining his medical and exposure records under 29 C.F.R. ї 1910.20 prior to the compensation hearing, when as it alleges there is no such right available under the Illinois Workers' Compensation Laws, as the granting of a right that

"would upset the careful balance that exists in the Illinois law in the trial of workers' compensation cases and would grant rights to employees that they do not possess under state compensation law."

Respondent sites his expert witness in compensation law as support for this effect (Tr. 80, 81, 89). Thus goes Respondents argument that to require it to produce the medical and exposure records would run against the very prohibition of Section 4(b)(4) of the Act since allowing the request for access in this case would both enlarge the rights of employees and diminish the rights of employers under the Workers' Compensation Law. This in Respondent's mind is a preemption of state law relating to workman's compensation. Respondent in support of its argument cites: United Steelworkers of America v. Marshall, 647 F. 2d 1189, 1235-36 (D.C. Cir. 1980); cert. denied, 453 U.S. 913 (1981). We disagree with Respondent's position for several reasons.

The thrust of Respondent's argument in this case is that the cited Standard upsets what it perceives as a balance struck by the Illinois Workers' Compensation Law between employers and employees, and thus application of the Standard violates the underlying enabling statute. The Standard does this, according to Respondent, by granting rights to employees which they do not have under Illinois law. We fail to see this result.

In finding our way in resolving the issues herein it is important to start at that modicum of legislative history that might impact upon our understanding of the full implications of Section 4(b)(4) of the Act. It appears that all that is known about 4(b)(4) is that at the time of the passage of the Act, all fifty states had legislated some form of workers' compensation system that applied to work related accidents and injuries (A. Larson, 1 Larson's Workmen's Compensation, Desk Edition, Section 5.30, at 2-17 (1980 with 1983 Cumulative Supplement). We see that Congress, being concerned about state workers' compensation benefits, had no intention of infringing upon states' rights in this area; and this is about all we know about Congress' intentions. (See, e.g., S. Rep. No. 1282, 91st Cong., 2d Sess. 2 (1970), at 18 and note 55 at 25; Legislative History of the Occupational Safety and Health Act of 1970, 92nd Cong., 1st Sess. (June, 1971) note 53 at 165).

The United States Court of Appeals, in United Steelworkers of America, AFL-CIO-CLC v. Marshall, et al., 647 F. 2d 1189 (D.C. Cir. 1980), cert. denied, 101 S. Ct. 3148 (1981) examined Section 4(b)(4) in the course of its review of the Secretary's newly promulgated lead standard (29 C.F.R. ї 1910.1025, et. seq.). Finding the legislative history to be of little value in its review of this section (647 F. 2d, at n. 70, 1234), the Court proceeded to seek the best reading of the section. The Court followed this path as a result of its opinion that a literal reading of it would indicate that "any health standard that reduces the number of workers who become disabled will of course 'affect' and even 'supersede' workers' compensation by ensuring that those workers never seek or obtain workmen's compensation benefits" (647 F. 2d, at 1234-1235). What the Court did recognize here, as a general proposition, was that almost everything associated with the Act would have some practical effect on state workers' compensation laws.

The court then turned its attention to just "what does Section 4(b)(4) mean,..." 647 F. 2d at 1235. The Court in this regard stated:

We see two plausible meanings. First, as courts have already held, Section 4(b)(4) bars workers from asserting a private cause of action against employers under OSHA standards. Jeter v. St. Regis Paper Co., 507 F. 2d (5th Cir. 1975); Byrd. v. Fieldcrest Mills, Inc., 496 F. 2d 1323 (4th Cir. 1974). Second, when a worker actually asserts a claim under workmens' compensation law or some other state law, Section 4(b)(4) intends that neither the worker nor the party against whom the claim is made can assert that any OSHA regulation or the OSH Act itself preempts any element of the state law. For example, where OSHA protects a worker against a form of disablement not compensable under state law, the worker cannot obtain state relief for that disablement. Conversely, where state law covers a wider range of disablements than OSHA aims to prevent, an employer cannot escape liability under state law for a disablement not covered by OSHA. In short, OSHA cannot legally preempt state compensation law, even if it practically preempts it in some situations. (647 F. 2d, at 1235-1236)

The Court concluded that although the lead standard's Medical Removal Programs may "have a great practical effect on workmens' compensation claims, it leaves the state schemes wholly intact as a legal matter, and so does not violate Section 4(b)(4)." 647 F. 2d at 1236. The Court thus took the position that only substantive intrusions into state workers' compensation laws would be violative of Section 4(b)(4). We likewise will follow this general principal. As will be discussed below we fail to find any substantive intrusions into the Illinois Workmens' Compensation Laws, as argued by Respondent, which would justify our finding any involvement of Section 4(b)(4) in the enforcement of the Citation herein. At best Respondent's claim rest upon a procedural rule having little, if anything, to do with the basic rights and obligations within the Workmans' Compensation Law, and has little impact upon the disposition of a workman compensation claim which may go to hearing.

Respondent makes much of the proposition that some documents used at a workman's compensation hearing are only available to each party at the "time of hearing" and not before. In Respondent's view "the Illinois Workers' Compensation Laws do not permit pretrial discovery by one party from the other," and that "the OSHA rule on access to records cannot be used to override rights existing under state workers' compensation law." We find that the facts of this case and the implications reached from these facts are not consistent with Respondent's view.

Under the rules governing practice before Illinois Industrial Commission, subpoenas for documents, depositions and interrogatories, prior to trial are allowed (Ex. R-1, Rules 3-(4) and (5). Another example of prehearing discovery is Commission Rule No. 11-(7)(A)(3) and (C). This rule requires that, where an employer claims insufficient information to determine liability for the payment of temporary total compensation, said employer shall have the responsibility of seeking out said information. The employee is required to provide the appropriate authorizations to the employer to facilitate this release of medical information (Resp. Ex. No. 1). Additionally, the statute empowers employers to require employees to undergo physical examinations, at the employer's expense, and receive the results from said examination. All of which is prior to hearing (Ill. Rev. Stat. Ch. 48, Sections 138.12 and 19(c). True, Illinois Workmens' Compensation Law does provide for the production of some documents only at time of hearing but these provisions have the sole purpose of making sure that "the process and procedure before the Commission (shall) be as simple and summary as reasonably may be." (Ill. Rev. Stat. Ch. 48, Section 138.16). Lastly, of course, Section 8 of the Illinois Workmans' Compensation Law specifically provides for access to medical records, without any reference to the date of the compensation hearing.

In view of the prehearing discovery allowed under the Worker's Compensation Law, among its other provisions, Respondent's characterization that the timing of the production of a medical record is some sort of substantive right rings a hollow note; we believe Respondent incorrectly eschews what is clearly a minor procedural matter so as to achieve a particular result herein. This we find is particularly true since as a matter of custom and practice in workman's compensation proceedings the very documents which now forms the basis of this case are generally exchanged by parties prior to the compensation hearing (Tr. 90-91).

We fail to find any substantive intrusions, as a matter of fact and law, into the Illinois Workmens' Compensation Law, as alleged by Respondent, (or otherwise under any other set of facts), in having an employer comply with the cited Standard. Looking directly to the Standard we find an absence of any provision providing workers with greater or lesser benefits in state workmen's compensation claims, nor can such an effect be attributed to this Standard. Additionally, we find no provision providing benefits for illnesses and injuries not recognized under some state's workers' compensation laws. The only right that is provided by the cited Standard is the right of an employee to control his own destiny by granting him the tools through which he can ascertain what effects his work environment may have had, is having, or will have, on his body.

True we do find some practical effects upon the timing of the exchange of some documents that may or may not be used in a workman compensation hearing, but as a matter of law, this has no substantive significance whatsoever and is nothing more than incidental in nature. Indeed the Courts recognize that the Standard may have some practical affect on compensation laws, but that this is of no legal significance since the cited Standard, as written and as enforced, leaves theUnited Steelwor compensation law wholly intact. United Steelworkers of America,AFL-CIO-CLC v. Marshall, et al, supra, at 1236. Additionally the Courts have recognized that incidental intrusions into other areas of interest, resulting from compliance with the Standard, does not affect the validity of the Standard or render the Standard unenforceable or flawed. This is so because the Standard "is a duly authorized regulation, reasonably related to its underlying statute"...and its goal is to promote healthful working conditions." Louisiana Chemical Association v. Bengham et al, 550 F. Supp. 1136, at 1145 (W.D. La. 1982), affirmed 731 F. 2d 280 (5th Cir. 1984).

Within a practical setting it is interesting to note, as above mentioned, that the early production of the documents, which Respondent so dearly and assiduously claims to be a violation of Section 4(b)(4) are, prior to the hearing, customarily exchanged between the parties (Tr. 90, 91).

The obvious conclusion to be drawn is that enforcement of 29 C.F.R. ї 1910.20 does not violate Section 4(b)(4). Although there may be some practical affects on state workers' compensation proceedings, and in this case such practical affects appear minimal, the early production of the requested records by way of the Standard has no substantive effects whatsoever. The Standard grants to parties under Illinois law no greater rights than already possessed. Respondent's argument that 29 C.F.R. ї 1910.20 is in violation of Section 4(b)(4) of the Act, as a matter of law, is found in error.

Respondent makes much of the fact that the employee, who had requested his medical or health records, had filed a workmens' compensation claim for an injury to his back...and that he would get and use the records, prior to the compensation hearing.

Indeed, Respondent's arduously proclaims that by reason of this, to find the Standard enforceable and require production of the medical records to the employee/claimant, would be tantamount to making employers "helpless" in preparing their defenses to claims, thus "materially changing the structure and fabric of Illinois Law" and finally creating a "one sided proceeding" violating "the dictates of due process of law." We find it difficult to grasp the enormity of the situation, as proclaimed by Respondent, for several reasons. First, as above mentioned, there is significant pre-hearing discovery provided by the Illinois Compensation Law and Rules Governing Practice used before the Industrial Commission hearing these cases (pp. 12, supra). Secondly even assuming, arguendo, that everything Respondent claimed the employee was going to do with the records he in fact did do, and the employee had gained an advantage, we would still, nonetheless, find Respondent's argument without persuasion since the Courts have recognized that such advantage is incidental and of no legal consequence when looking to the promotion of healthful working conditions under the Standard and Act itself. Louisiana Chemical Association v. Bingham et al, supra at 1145[[4/]]. Lastly Respondent's argument carefully omits or glosses over some of the vital facts of this case, and the practical and significant ramifications which would result if we were to acquiesce to it's argument.

Looking to the record of this case, we find respondent carefully omitting any reference to the fact that the employee from the start requested both his "medical and exposure" records (Stipulation of Fact, Para. 7 and 8, Ex. D, E, F). Respondent's response to this request was that no documents of any kind were to be provided to the employee, and indeed none were provided (Stipulation of Fact, Para. 10, 11, Ex. H). With respect to Respondent's failure to provide exposure records, these records hardly seem relevant to a back injury claim. Health records which might show health problems by reason of exposure to toxic substances is also hardly a type of record which might relate to an employee's back injury. That the employees request was made solely for the purpose of getting medical records for use in his compesation case is not clear from this record, and was certainly not definitely known to Respondent. [[5/]] The request came approximately three years after the filing of the workmans' compensation claim. The employee informed the Compliance Officer who investigated the case of his carobn monoxide exposure (Tr. 37). He complained of chemical exposure in his complaint to OSHA. He worked near tanks holding caustic chemicals and was exposed to welding fumes (Tr. 37,44).

It would hardly seem reasonable to any fair minded person that under the circumstances of this case, General Motors Corporation is a "helpless" employer, as it characterizes itself, being put through the paces by an employee who, for whatever reason, sought to obtain his medical and exposure records, as did the employee in this case. Respondent's logic seems a bit askew in its position that the Illinois law on workmens' compensation would be turned on its head if enforcement of the Standard allowed for an employee to get his medical and exposure records prior to a compensation hearing which involved a back injury. If anything, it is the cited Standard that is being set upon when an employee, who complains of exposure to carbon monoxide and other chemicals, is denied his medical and exposure records solely by reason of the fact that three years earlier he filed a workmans' compensation claim for a back injury. We find the actions of Respondent in this regard most egregious since only a part of the records sought by the employee might have had some relevance to the workmans' compensation claim. We can not find any real practical disadvantage to the Respondent, of any significance, by way of the employee having access to its own medical and exposure records prior to the compensation hearing date.

As above discussed we do not find any legal or factual significance in the application of Section 4(b)(4) by reason of the requested documents being provided under the cited Standard, albeit that part of said documents might possibly being used later in a workmens' compensation proceedings. Quite the contrary, we would find considerable harm done to the purposes of the Act, the rights of the employee, and the benefits due him under the Act if we were to apply Section 4(b)(4), as argued by Respondent. In reaching our conclusions that 29 C.F.R. ї 1910.20 does not violate Section 4(b)(4) of the Act, we find a rather significant synergistic practical result involving and combining attainment of the purposes of the Act with providing an employee with a timely method to recognize occupational dangers to his health and whether he had indeed suffered adversely from the effects of his exposure to the hazardous occupational safety or health condition. We find, in rejecting Respondent's argument, a practical and equitable result, comporting with fundamental fairness and ordinary due process.

The employee access rule, 29 C.F.R. ї 1910.20 et seq., is essential to generate information called for by key provisions of the Act. As the House Committee stated, "[a]dequate information is the precondition for responsive administration of practically all sections of this bill." 45 Fed. Reg. 35245. Adequate standards cannot be formulated by OSHA without the participation of employees, whose firsthand experience is frequently critical to bringing a hazard to the attention of OSHA under 29 U.S.C. 657 (f)(1). 45 Fed. Reg. 35245. To participate, employees need all available information about hazards in their workplaces. Employee participation in achieving safer, healthier workplaces is crucial since, as the Supreme Court has recognized, "OSHA inspectors cannot be present around the clock in every workplace." Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1979). This is particularly true at the present time when government emphasis is off regulatory enforcement. Currently there is more of an onus upon the employee to be on the alert for occupational safety and health hazards so as to avoid their dangers. Uninterrupted access to ones own exposure and medical records could not be more important to the employees well being, especially in a time when exposure to exotic and unusual chemicals have an effect upon individuals only discernable through close medical observations. [[6/]]

As pointed out by the Authorized Employee Representative in its Brief, if we were to look at the problem in its practical day to day and on the job setting, to allow Respondent's position would produce anomalous response. For instance, an employee denied access to his medical and exposure records would not be able to decide intelligently whether to seek medical treatment for suspected injuries other than those of the workmans' compensation claim. A worker under Respondent's proposed interpretation would be denied information concerning his exposure to toxic materials at least for the duration of his claim, including appeals, or until the Illinois three year statues of limitations had run. An employee with an injured back would be unable to learn whether he had been exposed to asbestos or other toxins. Family members who may have been exposed to toxic material, through contact with the employee, would be deprived of all knowledge necessary to seek treatment under Respondent's rule.

Finally, as argued by the Authorized Employee Representative, to follow Respondent's argument on no access would in essence harm workplace health and safety by denying necessary information to all employees who happened to have a workers' compensation claim. Such a claim could be pending for years. During this time the Employer could deny his employee crucial knowledge affecting medical treatment -- even for conditions wholly unrelated to the compensation claim. For instance, an employee with a claim pending for a finger injury could be denied information about exposure to toxic chemicals affecting his lungs. This information might be needed by the employee's treating doctor. In effect an exposed employee or a sick employee would have to choose between his State sanctioned compensation claim or his health. To follow Respondent's argument and interpretation of Section 4(b)(4) would in effect be a danger to employees who have compensation claims pending and who needed access to medical records for other occupational safety and health matters.

Respondent's approach would lay the Act's procedures open to cynical gamesmanship in which a worker with a compensation claim is forced to choose between filing the compensation claim or seeking access to his medical and exposure records. Thus Respondent's attitude would chill workers' compensation remedies mandated by Illinois Law ...which in itself could be said to be a substantive diminishment of compensation laws on employment injuries. Frankly we find this situation more of a legal and practical reality than the one forwarded by the Respondent as allegedly impacting on substantive rights under the Workmans' Compensation Law.

While Respondent portrays the employee who requested his medical and exposure records as an individual who seeks an advantage in a workmens' compensation hearing, we see it otherwise when looking to the totality of the situation. We see Respondent's actions as a definitive effort to disenfranchise the employee from the benefits of the Act by prohibiting him, and other employees similarly situated, from access to their own medical and exposure records if they choose to file a workmans' compensation claim. The fact that an employee may get its medical records earlier then Respondent believes he should pales thin in light of the practical effects on the ability of the employee to recognize occupational safety and health hazards discernable only through the medical and exposure records. We do not find that depriving the employee of this substantial and important adjunct to effective occupational safety and health hazard recognition, as obtainable under 29 C.F.R. ї 1910.20, is consistent with any reasonable interpretation of the Act or the Illinois Workmens' Compensation Law.[[7/]]

SUMMARY

Illinois Workman Compensation legislation seeks to provide employees with "prompt and equitable compensation for their injuries" and with "efficient remedies." Kelsay v. Motorola, 74 Ill. 2d 172, 180-81, 384 N.E. 2d 353, 356-57, 23 Ill. Dec. 559, 562-63 (1979). No part of the Illinois workers' compensation statute forbids employees access to their own medical and exposure records, and Respondent has cited no such statutory authority for that position (Resp. Br. pp. 12-14). We fail to dicern timely employee access to records as having any damage, in any way, on the Workers' Compensation Law dealing with compensating employees for all accidental injuries arising out of their course of employment or upon the employer ability to defend such claims. Compliance with an employee's records request cannot possibly be used to force compensation where it is not warranted, and that is the simple truth of this case.

Liabilities of an employer to pay compensation for injuries are not increased by employee's access to records under the Standard. There is no change of substantive rights under the Standard. There are no new causes of action created. There are no additional bases for recovery allowed. The number of weeks of compensation allowed by Illinois is not increased. Because there is no substantive change in employees rights, Section 4(b)(4) is not involved let alone contravened. No disclosure resulting from employee access under the cited Standard can affect the employer's legal burden, which is to compensate for injuries covered by the Illinois statute. In exchange for the Illinois Workman's Compensation Law's denial of common law tort defenses, the amount of employer's liability is limited by statute to a strict schedule. Access to records, therefore, cannot affect whether the Worker's Compensation Law would regard an employer as liable for compensation or amounts to be paid if liability is determined.

Respondent's claim that pre-hearing access by both parties to the records, that it alone presently possesses, would somehow "upset the balance" of workers' compensation seems disingenuous at best (See Resp. Br. p. 17). The "balance" enacted by workers' compensation law is one in which employer and employee each gave up tort claims and defenses in favor of the certainty of a statutory schedule. Kelsay v. Motorola, 74 Ill. 2d 172, 384 N.E. 2d 353 (1979). Employee access to medical records cannot affect this statutory balance, especially in view of the fact that the Illinois Workmens' Compensation Law, as well as the Rules of Practice before the Illinois Workmens' Compensation Commission, provide for significant pre-hearing discovery, as above discussed.

Accordingly, we find no enlargement, or affect in any manner, by the Standard on the common law or statutory rights, or duties of the workmens' compensation laws and as such reject Respondent's arguments that Section 4(b)(4) has application in this case.

III. WHETHER RESPONDENT VIOLATED
29 C.F.R. ї 1910.20(e)(1)(i) and (e)(2)(i)

In the present case it is undisputed that the individual making the request for medical and exposure records was an employee of Respondent. Moreover, there is no dispute that Respondent failed to provide the employee, through his authorized designated representative, access to the employee's medical records and exposure records, although it acknowledged that such records did exist. The facts show that the guidelines implemented by the Respondent to govern such access were compiled with by the employee or his representative. Moreover, the employer's guideline did not contain a prohibition against the release of such information to an employee who had a pending workmen's compensation case against the Respondent (see generally Stipulation of Facts and Admissibility of Documents and the Exhibits attached thereto).

In the absence of any statutory or regulatory infirmity, it is evident that the request of the employee's designated representative fell within the purview of the standard and was in conformance with Respondent's own guidelines therein. Respondent's failure to provide access to the employee's designated representative of the requested medical records and exposure records is found violative of 29 C.F.R. ї 1910.20(e)(1)(i) and (e)(2)(i).

Since Respondent's failure to comply with the Standard involved significant safety and health considerations, we find the violation to be serious in nature, within the meaning of Section 17k of the Act. (See pp. 18-20 supra). To better understand the serious nature of the violation resulting from Respondent's actions, it bears repeating what had been earlier stated about the importance of speedy and uninterrupted compliance with the standard.

In the case of Uniroyal, Inc. 1983 CCH OSHD І 26,439, we stated:

"Speedy and ready access to this information by employees, or their designated representative, is paramount as a first step in avoiding serious illness and injury caused by exposure in the workplace to the toxic substance. The action of Respondent in delaying and hindering access of the employee to this vital information, which is made readily accessible by reason of the records access regulation, represents a significant hazard to the safety and health of employees." (slip opinion, p.14)

The Citation alleging a serious violation will accordingly be affirmed.

        IV. WHETHER THE SERIOUS VIOLATION OF
    29 C.F.R ї 1910 20 ET SEQ CONSTITUTED A
           WILLFUL VIOLATION OF THE ACT

The Complainant in this case alleged that the conduct of Respondent in denying access to an employee of his medical and exposure records, as provided by 29 C.F.R. ї 1910.20 et seq. was willful in nature since it involved a conscious and deliberate act to disregard the standard with full knowledge of what conduct was required under the standard. The Respondent, on the other hand, maintains that even though it denied access of the records such denial was neither indifferent to nor in disregard of the regulation's requirements. Respondent points out that once it received the employee's request, it sought and followed the advice of its attorney; its counsel's advice was that the access regulation could not validly permit access to medical and exposure records while a workers' compensation claim is pending.

Respondent argues that an action cannot be willful unless it is taken "in disregard of the action's legality," citing P.A.F. Equipment Company, Inc., supra; Intercounty Construction Co. v. OSHRC, 522 F. 2d 777, 779-80 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976); Donovan v. Capital City Excavating Co., 712 F. 2d 1008, 1010 (6th Cir. 1983). Respondent goes on to argue that it did not act in disregard of the legality of its action. In fact, by seeking an opinion from its counsel, it took the most positive-good faith-step it could have taken with regard to determining the legality of its action and as such acted in good faith. Respondent cites, as support for this position 52 Am. Jr. 2d at pp. 236-37, and Lacey v. Porter, 37 І 635, 637 (Cal. 1894) in which the court stated:

"taking the advice of counsel, .... tends to show good faith and honest motives and the absence of malice..."

Respondent further relies on the Commission's ruling in Mel Jarvis Construction Company, Inc., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD 25,713 for the proposition that "a violation cannot be willful if the employer had a good faith opinion that the condition in question conformed with the requirements of the standard."

While Respondent argues that its actions were based on a legal interpretation and guidance from its counsel, and as such if there was a violation of the Act it most assuredly by reason of this was not willful in nature, we find the Complainant drawing us to the specific facts of the case, maintaining that Respondent's knowing refusal amounted to a willful violation.

Looking to applicable case law we find that the majority of courts have found a willful violation as one involving voluntary action, done either with an intentional disregard of, or plain indifference to, the requirements of the statute. Georgia Electric Company v. Marshall, 595 F. 2d 309 (5th Cir. 1979); Western Waterproofing Company v. Secretary of Labor, 576 F. 2d 139 (8th Cir. 1978); Intercounty Construction Co. v. OSHRC, 519 F. 2d 1200 (3rd Cir. 1975). None of these cases require the showing of a bad motive in order to prove willfulness. Thus, a violation is willful when it is intentional, knowing or voluntary, C.N. Flagg & Company, Inc., 1974-1975 CCH OSHD І 18,686 (R.C. 1974); or involves an element of indifference to the law. F.X. Messina Construction Corp. v. OSHRC, 505 F. 2d 701 (1st Cir. 1974).

With all due respect to Respondent's counsel, we cannot allow Respondent to hide behind asserted legal defenses as a shelter from conscious and intentional defiance of the law. Respondent ran the risk that its strained interpretation of the access regulation would prove to be wrong and must now bear the consequences of that risk. As a casual, but clairvoyant, observer of life once said, "you pays your money and you takes your choice." Respondent made its choice in denying its employees significant and important health and safety benefits in choosing not to comply with the standard. In doing so it singled out a particular segment of its employee population. . . i.e., those who had filed a workman's compensation claim against it. We find the impact and implication of this choice of action by Respondent all but too clear; we see these actions of Respondent as deliberate in meaning and purpose. Those employees who were engaged in workmen's compensation claims would be dispossessed from and denied the benefits of 29 C.F.R. ї 1910.20 et. seq. We reach the conclusion that this was Respondent's purpose and this was Respondent's intention.

I will not re-review Respondent's flimsy rationale of the sins of an employees'/claimant's early access to his medical or exposure records which would be garnered through an employer's compliance with the cited standard; this being, according to Respondent, as a just and decent reason for finding other then a willful violation of the Act or for finding no violation at all. I merely look to the totally of situation in which an employer refuses all medical and exposure records to an employee who files a workman's compensation claim, regardless of the nature of the claim and the extent of the health and exposure records.

In the instant case we have an employee who's workman's compensation claim involved a back injury. This employee, a long-term employee of Respondent, held many different jobs in many different areas of Respondent's facility. While he complained of exposure to carbon monoxide, who can say what other unsafe or unhealthful conditions he may have been exposed to during the course of his employment. His job history reveals that he has been exposed to all areas of the facility and to such dangerous substances as welding smoke and fumes, dust from grinders and noise from air hammers (apparently during the period he was Fitter Locomotive), bulk oil, acids, carboids, coolants, grease, gasoline and other inflammable materials (as a stockkeeper), paint, dust and dirt (as Service work - Class "B"), exhaust fumes (as Trucking-Automatic), noise from engine test and air hammers (as Crib Attendant) (Stip. І 8 and Ex. G). Without the requested records this employee is severely handicapped in his attempt to determine what occupational dangers to his health have been or are now present.

In this case we are not dealing with an employer who held back a portion of a medical record dealing with the subject matter of a workmen's compensation claim, and then claiming the good faith belief in the application of Section 4(b)(4). Perhaps under these circumstances we would find that the violation was other then willful. But this is not the case herein. The cold hard facts are that Respondent refused all medical and exposure records to an employee who had engaged it in a workman's compensation proceeding. It refused access to exposure records when such were obviously not a part of the workman's compensation proceeding; it refused access to medical records having nothing to do with the nature of the injury involved in the compensation claim. We find the underlying message of Respondent's to its employee's discernable and decisive --- don't file any workman's compensation claims if you want access to your medical and exposure records--don't seek the relief provided under the Standard if you file a workman's compensation claim.

Notwithstanding Respondent's argument made herein, we find that Respondent fully and deliberately chose to disregard the requirements of the Act and thwart compliance with 29 C.F.R. ї 1910.20 et. seq. [[8/]] We find that Respondent's actions were purposeful in nature designed to achieve a predictable result. Accordingly we find in Respondent's actions an intentional and knowing conduct designed to avoid compliance with the Standard and as such is determined to be willful in nature. The Citation will thus be affirmed as a Willful-Serious Citation.

PENALTY

In this case we are involved with a standard that for employees represents the most effective and expedient means for learning whether or not they are or have been exposed to unsafe or unhealthful work conditions, and whether these work conditions are or have been effecting their health.

The facts of this case rather plainly speak for themselves showing that Respondent purposefully denied to certain of its employees the benefits of the Standard. Respondent, contrary to the agreements reached with the employee's Collective Bargaining Representative on access to medical records, began a program of singling out those employees who filed out workmen's compensation claims to deny them benefits of this most important standard.

We find it more than coincidental that Respondent's refusal to allow access to medical or exposure records involved only those employees who filed workman's compensation claims. We find it more then coincidental that the refusals for access followed the ostensible obtaining of legal advise claiming involvement of Section 4(b)(4) of the Act, when in fact, none obviously existed. It is more then coincidental that all medical and exposure records were denied, whether they related to the subject matter of the workman's compensation claim or not.

We have found Respondent's actions willful in nature since they were, deliberate, intentional and in complete disregard of the mandated purpose of the cited standards. But we find more than that in this case.

Respondent's action went beyond intent; they were purposeful in nature aimed at the identifiable segment of its workforce, and solely designed to burden or discourage employees who might seek redress for injuries under the States Workmen's compensation law by denying them benefits obtainable under the Standard. Respondent's conduct placed employees in the untenable position of having to chose between the benefits of the Act, as provided under the cited Standard, or continuation of their workman's compensation claim. These egregious actions of Respondent not only tore at the basic fabric of the Act, but by their very nature sought to suborn the Acts remedial purposes. After considering those factors setforth in section 17(j) of the Act, the above mentioned discussion, and considering the record as a whole, we find it appropriate to assess a civil penalty of $10,000.00.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, as set out in my Decision and Order, and for good cause shown, it is ORDERED:

1. That item 1A and 1B of the Willful-Serious Citation is AFFIRMED.

2. A penalty of $10,000 is assessed.

Edward A. Bobrick
Judge, OSHRC

Chicago, Illinois

DATED: March 19, 1985

FOOTNOTES:

[[1/]]Chairman Foulke took no part in the consideration or decision of this case.

[[2/]]The section provides in full:

Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

[[3/]]At the time of the alleged violation, the cited provision stated:

ї 1910.20 Access to employee exposure and medical records.

(e) Access to records-(1) General. (i) Whenever an employee or designated representative requests access to a record, the employer shall assure that access is provided in a reasonable time, place, and manner, but in no event later than fifteen (15) days after the request for access is made.

The records access rule was amended in 1988. Final Rule: Access to Employee Exposure and Medical Records, 53 Fed. Reg. 38,140 (Sept. 29, 1988). However, those amendments have no effect on these cases.

[[4/]]At the time of the alleged violation, that provision stated:

(e) Access to records--

(2) Employee and designated representative access - (i) Employee exposure records. Each employer shall, upon request, assure the access of each employee and designated representative to employee exposure records relevant to the employee....

[[5/]]Also, GM stipulated that "for purposes of this case only" it would not contest the Secretary's allegation that Havell was exposed to toxic substances or harmful physical agents within the meaning of 29 C.F.R. ї 1910.20. (Access to records under the rule must be provided only regarding employees exposed to those hazards.)

[[6/]] The court stated that the legislative history of the Act contains essentially nothing about ї 4(b)(4), and that the provision is "vague and ambiguous on its face." 647 F.2d at 1234 and n. 70. The court noted that any OSHA health standard might have some practical effect on WC claims -- by reducing the number of accidents and claims, for example.

It held that Congress did not intend to prohibit such practical effects. Instead, the court saw two plausible meanings for ї 4(b)(4) -- it bars (1) a private cause of action by employees against employers under OSHA standards, and (2) claims in non-OSHA cases (including WC cases) brought by employees that the Act or regulations thereunder preempt any element of the applicable law.

[[7/]] The IIC has the same jurisdiction, powers and duties under both Acts. Id., І 172.48.

[[8/]] Statutes should be construed so as to avoid a conflict between them, if possible. See, e.g., H. P. Welch Co. v. New Hampshire, 306 U.S. 79, 85, 59 S.Ct. 438, 441 (1939); Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994 (1978).

[[9/]] GM presented testimony from Ralph W. Miller, Jr., a member of the IIC, to that effect. However, Miller acknowledged the validity and enforceability of the disclosure provisions of the Illinois Acts discussed below.

[[10/]] That section provides:

. . . Every hospital, physician, surgeon or other person rendering treatment or services in accordance with the provisions of this Section shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer, the employee or his dependents, as the case may be, or any other party to any proceeding for compensation before the Commission, or their attorneys . . . .

[[11/]] The relevant portion of that section provides:

The Commission upon application of either party may issue dedimus potestatem directed to a commissioner, notary public, justice of the peace or any other officer authorized by law to administer oaths, to take the depositions of such witness or witnesses as may be necessary in the judgment of such applicant . . .

[[12/]] The relevant portion of that section provides:

The Commission, or any member thereof, or any Arbitrator designated by the Commission, shall on written request of either party to the dispute, issue subpoenas for the attendance of such witnesses and production of such books, papers, records and documents as shall be designated in the applications, . . . .

See also Id., І І 138.12, 172.47(a) (physicians' reports must be made available to other party by time of trial); І 138.19(c) (IIC may require medical examination of employee, with copy of report to both parties). The Illinois Acts have been revised in some respects. E.g., Ill. P. A. 86-998, ї 1, eff. Dec. 18, 1989. None of those changes affect these cases, however.

[[13/]] OSHA stated:

3. Privileged records. The question has been raised whether an employer must provide access to records which are created solely in anticipation of litigation and which are otherwise privileged from discovery under the prevailing rules of procedure or evidence. An example could be a medical opinion prepared for the employer for purposes of aiding the employer's case by a company physician after a workmen's compensation claim has been filed. It has been OSHA's interpretation that the standard does not contemplate coverage of such a record if the record would not otherwise be available to the employee or his attorney in the litigation. On the other hand, the mere fact that a medical record (see definition at 29 CFR 1910.20(c)(6)) not originally created in anticipation of specific litigation will ultimately be used as evidence in a private legal proceeding does not put it outside the scope of the standard.

Id., col. 3 (emphasis added). The preamble to the 1988 revision of the standard reaffirmed and reprinted the 1981 interpretation, in discussing the term "employee medical record." Final Rule: Access to Employee Exposure and Medical Records, 53 Fed. Reg. 38,140, 38,150-51 (Sept. 29, 1988).

[[14/]] The burden of proving the invalidity of a cited standard is on the employer. Commission Rule 36(b)(1), 29 C.F.R. ї 2200.36(b)(1). Cf. Puget Sound Tug & Barge, 9 BNA OSHC 1764, 1774, 1981 CCH OSHD ї 25,373, p. 31,594 (No. 76-4905, 1981) (burden of proof of exemption from OSHA jurisdiction under ї 4(b)(1) of the Act is on employer).

[[15/]]The employer in Crowell v. Benson protected the fact that the law permitted ex parte inquiries by the judge regarding the merits of the case. Id. Therefore, the employer argued unsuccessfully, one party could prevail based on "unknown sources of information," depriving the other of a fair hearing. Id. The practice challenged in Crowell v. Benson is also authorized by І 138.19(b) of the Illinois Acts.

[[16/]]The Illinois Acts contemplate public hearings, with a full opportunity for each party to present evidence and meet opposing evidence, including surprise evidence. Decisions are to be based on written "findings of fact and conclusions of law, separately stated." Id.

Also, there is meaningful review of the arbitrator's decision by IIC. І 138.19(e), (f). No legal duty to pay compensation arises until the relevant proceedings before the IIC are completed. І 138.19(f), (g). Thus, a party claiming that due process was denied before the arbitrator may obtain meaningful review of the issue before any rights are irreparably affected. See, e.g., In Matter of Claim for Compensation under LHWCA, 889 F.2d 626, 630-32 95th Cir. 1989) (opportunity for meaningful review of initial decision within WC tribunal preserves due process), cert. denied sub nom, Louisiana Insurance Guaranty Ass'n v. Abbott, U.S., 110 S. Ct. 1813 (1990). There are sufficient protections under Illinois Acts to avoid unfairness to an employer faced with surprise evidence. (We note that no actual surprise evidence has been alleged here.)

[[17/]] The Secretary notes a statement in a recent court decision that a willful OSHA violation may be found "even if [the employer] has a good faith belief that its own policy is wiser." RSR Corp. v. Brock, 764 F.2d 355, 363 (5th Cir. 1985). However, the court found willfulness in that case because RSR knew that its policy did not conform to the law. Here, the evidence shows that GM had a good faith basis for claiming that its conduct was consistent with the law.

[[18/]] The union party has not sought to overturn the stipulations.

[[19/]] The records access rule was not intended to cover trips, falls, cuts, and similar non-chronic traumatic injuries. Preamble to Final Rule on Access to Employee Exposure and Medical Records, 45 Fed. Reg. 35,212, 35,258, 35,267 (1980) (definition of "toxic substances and harmful physical agents" [ї 1910.20(c)(11)] "excludes traumatic safety hazards such as trips, falls, cuts, etc.. but includes repetitive motion (ergonomic) stresses due to their subtle and chronic nature").

[[20/]]We also find it difficult to ascribe willful disregard to GM in light of the conclusion by the commission majority in Johnson & Johnson Products, Inc., 11 BNA OSHC 2097, 1984-85 CCH OSHD І 26,988 (No. 81-1339, 1984). As discussed in the next section, they concluded that a records access request related to WC proceedings is essentially unenforceable because failure to comply with it is de minimis. Although that conclusion is erroneous, it lends some credence to GM's initial reaction to Havell's request.

[[21/]]The union argues that GM's noncompliance was shown to be willful because GM's guidelines for providing employees access to medical and exposure records did not make an exception for records related to WC claims. GM's guidelines had been developed jointly with the union. We reject the union's argument because there is no showing that the topic of WC related records was raised by the union or considered by GM during development of the guidelines.

[[22/]] One of the employers had denied access specifically because it considered the use of the records access standard for purposes of discovery in WC cases to be inappropriate. The Commission majority stated:

Even if we were to find that there was a violation, we would find that, under the circumstances of this case, it was de minimis. A de minimis violation is one in which there is technical noncompliance with a standard but the departure from the standard bears so little relationship to employee safety or health that it is inappropriate to assess a penalty or require abatement of the violation. . . The records here were sought for discovery purposes for a proceeding unrelated to the safety and health purposes of the Act . . . .

11 BNA OSHC at 2100 n.8, 1984-85 CCH OSHD at p. 34,709 n.8 (citations omitted).

[[1/]] Jurisdiction of the parties and the subject matter herein is confirmed upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

[[2/]] ї1910.20 Access to employee exposure and medical records.

(e) Access to records (1) General (i). Whenever an employee or designated representative requests access to a record, the employer shall assure that access is provided in a reasonable time, place, and manner, but in no event later than fifteen (15) days after the request for access is made.

(ii) Whenever an employee or designated representative requests
a copy of a record, the employer shall, within the period of time previously specified, assure that either:

(A) A copy of the record is provided without cost to the employee or representative,

(B) The necessary mechanical copying facilities (e.g., photocopying) are made available without cost to the employee or representative for copying the record, or

(2) EmpIoyee and designated representative access -(1) Employee exposure records. Each employer shall, upon request, assure the access of each employee and designated representative to employee exposure records relevant to the employee. For the purpose of this section, exposure records relevant to the employee consist of:

(A) Records of the employee's past or present exposure to toxic substances or harmful physical agents,

(B) Exposure records of other employees with past or present job duties or working conditions related to or similar to those of the employee,

(D) Exposure records pertaining to workplaces or working conditions to which the employee is being assigned or transferred.

[[3/]] Both a trial transcript and Stipulation of Facts make up the record in this case. References to the Stipulation of Facts and Admissibility of Documents executed by the parties shall be denoted as "Stip. Par.__. Transcript references are denoted as "Tr.__." Trial exhibits are denoted as "Comp. Ex. No.__ or "Resp. Ex. No.__."

[[4/]] A claim concerning 29 C.F.R. ї 1910.20 et seq., analogous to Respondent's claim herein was placed before the Court. The Court dealt with it in a very practical manner stating:

"LCA ... asserted that the agency's principal motivation for enacting the rule was to gain a benefit for employees and unions which they have been unsuccessful in securing through the NLRB. Specifically, the benefit of records access. The court must make little of such an allegation for two reasons. First, the records access rule is a duly authorized regulation, reasonably related to its underlying statute. While the rule undoubtedly enhances the bargaining status of unions, it is plain on the record that this result was simply incidental to fulfilling the statutory goal of promoting healthful working conditions." 550 F. Supp. at 1145

[[5/]] We assume these records exist since Respondent never replied to the request of the employee indicating that no exposure records or health records existed. Looking to the manner in which Respondent proceeded if it is later found that no exposure or other health records exist, we would be kidding ourselves to believe that Respondent would have turned over such records in any event if they had in fact existed at the time of request (see pp. 26-29, infra).

[[6/]] Access to records enhance the ability of employees to decide whether or not to request a Health Hazard Evaluation by NIOSH under Sec. 20(a)(6), 29 U.S.C. ї 669(a)(6). Sixty to seventy percent of all evaluation requests come from workers or their representatives. 45 Fed. Reg. 35246. Access to records enables employees to provide NIOSH with information that it requires to set priorities on its limited resources to conduct Health Hazard Evaluations. Respondent has offered no reason why this work of NIOSH should suffer because of the existence of a worker's compensation claim. Additionally, Respondent's refusal to abide by 29 C.F.R. ї 1910.20 undermines the very purpose of the Act in preventing employee ignorance about workplace hazards; a result Congress specifically sought to eradicate. The House Committee on Education and Labor stated:

Basically the worker needs to have adequate advance knowledge of hazards in order to protect himself from damaging exposures...Since inadvertent exposure to unknown products or processes often causes severe and immediate reactions, the exposed worker must know what type of exposure he has suffered in order to use proper treatment. The worker especially needs this information in cases of toxic substances which have delayed or latent ill effects. Legislative History at 150.

Additionally, Respondent's discussion of the recently enacted Illinois access to records statute is interesting but factually incorrect, and the inference drawn from it, regardless of the facts, erroneous. We see no indication that the House, Senate, or Governor ever considered this legislation in terms of its interaction with the state's workmen's compensation laws. Furthermore, the House passed version of the bill provided for access to medical records, a provision not included in the Senate passed version. The House ultimately accepted the Senate's version of the bill. Thus the legislation which reached the Governor's desk did not provide for access to medical records. However, in printing the legislation for signature, a poor proofreading job had been performed and thus, although access to medical records had been deleted, all such references had not been removed from the legislation itself. The Governor's amendatory veto of those references therefore, was merely a completion of the proofreading of the legislation. (See Illinois 1983 House debate on House Bill No. 2035, May 19, 26 and October 19; Illinois Senate 1983 debate June 16, 23, and November 2 -- Ex. A and B to Complainants' Reply Brief filed July 19, 1984).

[[7/]] We need not review Respondent's reading of the legislative
history of the Illinois Compensation Laws, other then to say that we find Respondent's argument concerning the so-called "balance" struck by Illinois law a product of Respondent's creative thinking. As in most administrative law proceedings, discovery has been severely limited or proscribed in the name of expeditious handling of cases. Such an intent is evident in Occupational Safety and Health Review Commission proceedings and was clearly stated by the Illinois legislature in the body of the statute itself. Indeed, Illinois courts have recognized that the purpose of the Workmen's Compensation Act is to provide prompt, sure and definite compensation, together with quick and efficient remedy, to employees for every injury, accident and/or death suffered in the course of employment without having to show negligence on the part of the employer but subject to the limitations specified by the Act. Moushon v. National Garages, Inc., 9 Ill. 2d 407 (1956); O'Brien v. Ratenbush, 10 Ill. 2d 167 (1956); Pathfinder v. Industrial Commission, 62 Ill. 2d 556 (1976); Laffoon v. Bell & Zoller Coal Co., 65 Ill. 2d 437 (1976); Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978).

[[8/]] Respondent has directed our attention to the case of Trans World Airlines, Inc. v. Thurston, ______U.S.____ 53 2W 4024 (1985) (hereinafter "TWA") for the proposition that if a company seeks advise of counsel, and acts upon same in violation of the law, it cannot be found guilty of a willful violation. After a careful reading of this case, we find the holding of the court inapposite to the facts of the instant case. In TWA the court found that "TWA officials acted reasonably and in good faith in attempting to determine whether their plan would violate the ADEA," (Age Discrimination in Employment Act 29 U.S.C. ї 621 et seq.) Quite clearly the court's ruling does not provide unconditional absolution from one's legal transgressions if the transgression could be traced back to reliance upon advise of counsel. In TWA the employer sought conformance with the ADEA in a very technical work setting having complex legal and factual elements to it. The employer's acts, which ultimately resulted in a violation of the ADEA, were rationally designed from the start, aimed at gaining compliance with ADEA, while attempting to comply with the collective-bargaining agreement. In the instant case we find an employer seeking to avoid compliance with the Act, not one attempting compliance as we do in TWA. We fail to find in Respondent's actions that degree of reasonable conduct and good faith used as a touchstone for the Court in TWA to find other than willful conduct (pp. 26-28, supra). That element is absent in this case when viewing the realities of the legal proposition relied upon. Accordingly, we find no application of the holding in TWA to the legal or factual issues of this case.