SECRETARY OF LABOR,
Complainant,

v.

A. B. CHANCE COMPANY,
Respondent.

OSHRC DOCKET NO. 84-519

ORDER

No response having been received from the Secretary, in accordance with the Commission decision issued March 18, 1987, this case is a final order as of the date of this order.

FOR THE COMMISSION
RAY H. DARLING, JR.
EXECUTIVE SECRETARY


Dated: APR 6 1987

FOOTNOTES:

[[1]]A.B. Chance, the petitioning party in this case, did not file a brief on review or otherwise respond to our briefing notice. At the time we issued the briefing notice, our Rules of Procedure provided that:

If a petitioning party fails to respond to a briefing notice or expresses no interest in review, the Commission may vacate the direction for review, or it may decide the case without that party's brief.

29 C.F.R. § 2200.93(d) (1985). In the usual case where a petitioning party failed to respond to our briefing notice, we would vacate our direction for review. E.g., D.A. & S. Oil Well Servicing, Inc., 13 BNA OSHC, 1987 CCH OSHD (P) (No. 85-604, 1987). However, inasmuch as we have already ruled on the issue in Kings Island, we exercise our discretion to decide the case despite A.B. Chance's failure to participate in these review proceedings. We express our strong disapproval of counsel's failure to provide analysis of the very significant constitutional issue that A.B. Chance asked us to review.

[[2]]Our decision in Kings Island was based in part on documents that we took official notice of under section 7(d) of the Administrative Procedure Act, 5 U.S.C. § 556(e). Slip op. at p. 11 n.6. We accordingly afforded the Secretary an opportunity in Kings Island to introduce evidence contrary to those officially-noticed documents. We afford the Secretary the same opportunity in this case.

Each employer shall provide, upon request. records provided for in §§ 1904.2, 1904.4, and 1904.5, for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provision of the act. and by representatives of the Secretary of Health, Education, and Welfare during any investigation under section 20(b) of the act, or by any representative of a State accorded jurisdiction for occupational safety and health inspections or for statistical compilation under section 18 and 24 of the act.

[[1/]] Section 1904.7(a) of 29 C.F.R. states as follows:

Section 1904.2(a) of 29 C.F.R. provides as follows:

Each employer shall, expect as provided in paragraph (b) of this section , (1) maintain in each establishment a log and summary of all record occupational injuries and illness for that establishment; and (2) enter each recordable injury no later than 6 working days after receiving information that a recordable injury or illness has occurred.  For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be completed in detail provided in the form and instructions on form OSHA No. 200.

Section 1904.4 of 29 C.F.R. provides as follows:

In addition to the log of occupational injuries and illnesses provided for under §1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment.   The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration For, OSHA No. 101.   Workmen's compensation, insurance, or other reports are acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

[[2/]] A concise statement of the legal theory relied upon by the Secretary is found in Cooper's Express, Inc. v. ICC, 330 F.2d 338, 340 (1st Cir. 1964) which states as follows:

It is well settled that Congress may require a corporation engaged in a business subject to federal regulations to keep certain records and make them available for official inspection in order to provide for effective administration and enforcement. Shapiro v. United States 335, U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1781 (1948); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941) ; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Balt. Ohio R.R. v. Int. Com. Comm., 221 U.S. 712, 31 S.Ct. 621, 55 L.Ed. 873 (1911). Such records assume the characteristic of quasi-public documents and their disclosure may be compelled without violating the Fourth Amendment. Bowles v. Glick Bros. Lumber Co., 146 F.2d 566 (9th Cir.), cert denied, 326 U.S. 804, 66 S.Ct. 12, 90 L.Ed. 490 (1945); Rodgers v. United States, 138 F.2d 997 (6th Cir. 1943); United States v. Pine Valley Poultry Distributors Corp., 187 F.Supp. 455 (S.D. N.Y. 1960). In Boyd v. United States, 116 U.S. 616, 624, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886) the Supreme Court recognized that books required to be kept by manufacturers for inspection by revenue officers "are necessarily excepted out of the category of unreasonable searches and seizures." And in Hale v. Henkel, 201 U.S. 43, 77, 26 S.Ct. 370, 380, 50 L.Ed. 652 (1906), the Court, although finding an order for the production of certain corporate books and papers too broad and indefinite, stated: "Of course, in view of the power of Congress over interstate commerce, to which we have adverted, we do not wish to be understood as holding that an examination of the books of a corporation, if duly authorized by act of Congress, would constitute an unreasonable search and seizure within the 4th Amendment."

SECRETARY OF LABOR,
Complainant,

v.

A.B. CHANCE COMPANY,
Respondent.

OSHRC Docket No. 84-0519

DECISION

Before: BUCKLEY, Chairman, and WALL, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

At issue is a single citation alleging a violation of 29 C.F.R. § 1904.7. That regulation states that employers "shall provide" certain injury and illness records "upon request" to "any representative" of the Secretary "for inspection and copying." See section 1.904.7(a). The records that must be provided for inspection and copying include those that the employer is required to maintain on form OSHA No. 200, the log and summary of occupational injuries and illnesses, and on form OSHA No. 101, the supplementary record of occupational injuries and illnesses. See sections 1904.2(a) and 1904.4.

The facts are not in dispute. An OSHA compliance officer arrived at A.B. Chance's workplace to conduct an inspection in response to an employee complaint. The compliance officer requested permission to examine the company's OSHA forms, No. 101 and No. 200, and to inspect the workplace "to look at the complaint items." A.B. Chance's representatives consented to a warrantless inspection of the workplace limited to the complaint items, but refused to allow the access to injury records required by section 1904.7 unless OSHA obtained a warrant. OSHA neither obtained an inspection warrant nor issued an administrative subpena. Instead, it issued the citation now on review.

The case was submitted to Commission Administrative Law Judge Joe D. Sparks on a stipulated record. The only issue before the judge was whether the Fourth Amendment requires OSHA to obtain a warrant or issue a subpena when it wishes to examine required injury records. Judge Sparks answered this question in the negative and therefore affirmed the citation. We reverse.

In Kings Island, Division of Taft Broadcasting Co., OSHRC Docket No. 82-1016 (March 18, 1987), we held that "section 1904.7(a) violates the Fourth Amendment to the extent that it purports to authorize an inspection of required records without a warrant or its equivalent'. . . ." Slip op. at p. 24. Here, as in Kinqs Island, OSHA neither obtained an inspection warrant nor issued an administrative subpena compelling production of the injury records. For the reasons stated in Kings Island, we vacate citation 1 unless the Secretary requests an opportunity to introduce evidence contrary to officially-noticed documents within 15 days of this decision.[[2]]

FOR THE COMMISSION
Ray H. Darling, Jr.
Executive Secretary


DATE: MAR 18, 1987

SECRETARY OF LABOR,
Complainant,

v.

A. B. CHANCE COMPANY,
Respondent.

OSHRC Docket No. 84-0519

APPEARANCES:

James E. Culp, Esquire, Office of the Solicitor, U. S.
Department of Labor, Philadelphia, Pennsylvania, on behalf
of complainant.

William T. Weidle, Jr., Esquire, St. Louis, Missouri, on
behalf of respondent.

DECISION AND ORDER

SPARKS, Judge: The issue in this case is whether the respondent, A.B. Chance Company, must, upon request by an OSHA compliance officer, produce for inspection and copying the OSHA forms 101 and 200. Respondent refused to produce the documents without being served with a search warrant. the Secretary contended a search warrant was not required for such records and on May 14, 1984, issued a citation for an 1904.7.[[1/]]

The facts have been stipulated by the parties and are adopted as findings of fact.


FINDINGS OF FACT

1. The Charleston Area Office received a document on March 1984, which is attached hereto in sanitized form and made a part hereof by reference, regarding the ceramic, electrical insulator facility of A.B. Chance Company at Camden Avenues, Parkersburg, West Virginia. [Marked Exhibit "A"]

2. As a result of that employee complaint, OSHA Compliance Officer Bouglas Ray arrived at the A. B. Chance facility to conduct an inspection on April 9, 1984.

3 A. B. Chance Company's designated representative at that time was Lyle Deem, a general foreman.

4. The union representative was Lawrence Flowers.

5. At the opening conference, Compliance Officer Ray requested that he be permitted to look at the OSHA Forms 101's and 200's which the Company maintained and to look at the complaint items.

6. Mr. Deem indicated that he did rot know where the OSHA Forms 100 and 200 were kept and that the person who had authority to release those documents, Stephen Bailey, Personnel Manager, was not available.

7. After consultation with corporate headquarters, Mr. Deem refused to further permit a warrantless inspection unless and to the extent that Compliance Officer Ray agreed to confine the inspection scope to the complaint items and photographs thereof.

8. Compliance Officer Ray thereafter conducted an inspection of the Complaint items accompanied by Mr. Deem and Mr. Flowers.

9. Following the inspection, Compliance Officer Ray conducted a closing
conference.

10. At the closing conference, Compliance Officer Ray informed Mr. Deem that, while he had found no apparent OSHA violations, he would still need to examine the OSHA Forms 101's and 200's to complete the inspection.

11. Mr. Deem again informed him that he must contact Mr. Bailey.

12.On Apr. 16, 1984 , Compliance Officer Ray telephoned Mr. Bailey requesting that he be permitted, to examine the OSHA 101' s and 200 ' s.

13. On April, 16, 1984, Mr. Bailey informed Compliance Officer Ray that, pursuant to corporate policy, he could not disclose the requested information without a warrant.

14. On May 3 1984, Compliance Officer Ray telephoned Mr. Bailey informing him of the alleged violation for not making the records available..

15. Neither the. compliance officer nor, any other OSHA representative sought or obtained a warrant or subpoena to examine the OSHA 101's or 200's.

16. If a violation should be found, the parties agree that it is appropriately characterized as other than serious and that $0 is the appropriate penalty in light of the statutory factors.

DISCUSSION

The Secretary contends that records required to be kept by law must be produced upon request without the necessity of a search warrant. 2/

Respondent relies upon Marshall v. Barlow's. Inc., 436 U. S. 307 (1978), which held that an OSHA inspection must be conducted by consent or a search warrant. Here respondent consented to an inspection of the items involved in the employee complaint but refused to produce the OSHA forms 101 and 200.

The Supreme Court dealt with the issue of whether records must be produced without a warrant in a footnote to the Barlow's decision as follows:

22. Delineating the scope of a search with some care is particularly important where documents are involved. Section 8(c) of the Act, 29 U.S.C. § 657(c), provides that an employer must "make, keep and preserve, and make available to the Secretary [of Labor] or the Secretary of Health, Education and Welfare" such records regarding his activities relating to OSHA as the Secretary of Labor may prescribe by regulation as necessary or appropriate for enforcement of the statute or for developing information regarding the causes and prevention of occupational accidents and illnesses. Regulations requiring employers to maintain records of and to make periodic reports on "work-related death, injuries and illnesses" are also contemplated, as are rules requiring accurate records of employee exposures to potential toxic materials and harmful physical agents.

In describing the scope of the warrantless inspection authorized by the statute § 8(a) does not expressly include any records among those items or things that may be examined, and § 3(c) merely provides that the employer is to "make available" his pertinent records and to make periodic reports.

The Secretary's regulation, 29 CFR § 1903.3 (1977), however, expressly includes among the inspector's powers the authority "to review records required by the Act and regulations published in this chapter, and other records which are directly related to the purpose of the inspection." Further, § 1903.7 requires inspectors to indicate generally "the records specified in § 1903.3 which they wish to review" but "such designations of records shall not preclude access to additional records specified in § 1903.3." It is the Secretary's position which reject we reject, that an inspection of documents of this scope may be effected without a warrant.

The order that issued in this case included among the objects and things to be inspected "all other things therein (including but not limited to records, files, papers, processes, controls and facilities) bearing upon whether Barlow's Inc. is furnishing to its employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether Barlow's, Inc. is complying with . . ." the OSHA regulations. (Emphasis supplied.)

The Court rejected the broad assertion of the Secretary that all records described in the regulations must be produced without a warrant. But the Court's language
that the inspection of documents "of this scope" was invalid clearly implies that records more limited in scope may pass the Constitutional test.

To ascertain whether the OSHA 101 and 200 forms are within a group of documents, limited in scope, which must be made available upon request, we look first to
see the interpretive touchstone of the fourth amendment. The legal standard to be applied was recently stated by the Supreme Court in Oliver v. United States, ____ U.S. ____, 104 S. Ct.  1735, 1737 (April 17, 1984), as follows:

Since Katz v. United States, 389 U.S. 347 (1967), the touchstone of Amendment analysis has been the question whether a person has a "Constitutionally protected reasonable expectation of privacy." 389 U.S., at 360 (Harlan, J., concurring). The Amendment does not protect the merely subjective expectation of privacy, but only "those expectations that society is prepared to recognize as "reasonable." Id., at 364.

There the Court reaffirmed its holding that "open fields" are not protected by the fourth amendment.

Applying that principle to the instant case, it is noted that the OSHA forms 101 and 200 are kept entirely to fulfill the mandate of regulations issued pursuant to the Occupational Safety and Health Act. They are not general business records. Therefore,it is difficult to envision any expectation of privacy which could attach to such records.Neither is there a societal interest to be served by protecting them from disclosure or by requiring a warrant for their production. See Oliver v. United States, supra; Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 37(1906).

CONCLUSIONS OF LAW

1. Respondent had no reasonable expectation of privacy of OSHA forms 101 and 200.

2. Respondent violating 29 C.F.R. § 1904.7 by refusing to make OSHA forms 101 and 200 available for inspection and copying.

ORDER

1. The other than serious citation issued April 14, 1984, is affirmed.

2. No penalty is assessed.

Dated this 30th day of January, 1985

JOE D. SPARKS
Judge