Docket No. 84-0985

SECRETARY OF LABOR,
Complainant,

v.

EMERSON ELECTRIC COMPANY,
ELECTRONICS AND SPACE DIVISION,
Respondent.

OSHRC Docket No. 84-0985

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. з 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. зз 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. з 659(c).

At issue is a single citation alleging a violation of 29 C.F.R. з 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 1904.7(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 1904.4.

The facts are not in dispute. An OSHA compliance officer arrived at Emerson Electric's workplace to conduct an inspection in response to an employee complaint. The compliance officer requested permission to inspect the workplace and to examine the company's OSHA forms, No. 101 and No. 200, for the years 1982 through 1984. Emerson Electric's personnel manager consented to a warrantless inspection of the workplace limited to the allegations stated in the employee complaint, but she refused to allow the access to injury records required by section 1904.[[7]] unless OSHA forms, obtained a warrant or issued a subpoena. OSHA neither obtained an inspection warrant nor issued an administrative subpoena. Instead, it issued the citation now on review.

At the hearing before Commission Administrative Law Judge James D. Burroughs, the parties stipulated to the facts. The only issue before the judge was whether the Fourth Amendment requires OSHA to obtain a warrant or issue a subpoena when it wishes to examine required injury records. Judge Burroughs vacated the citation, holding:

Emerson had a constitutional right to insist that the compliance officer issue an administrative subpoena or obtain a warrant to search with a violation for exercising his rights under the fourth amendment.

We reach the same conclusion, although for somewhat different reasons.[[1]] 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 Kings Island, OSHA neither obtained an inspection warrant nor issued an administrative subpoena compelling production of the injury records. Accordingly, for the reasons stated in Kings Island, we affirm[[2]] the judge's order vacating citation 1 unless the Secretary requests an opportunity to introduce evidence contrary to officially-noticed documents within 15 days of this decision.[[3]]

FOR THE COMMISSION
RAY H. DARLING, JR.
Executive Secretary

DATE: MAR 15 1987

SECRETARY OF LABOR,
Complainant,

EMERSON ELECTRIC COMPANY,
ELECTRONICS AND SPACE DIVISION,
Respondent.

OSHRC Docket No. 84-0985

APPEARANCES:

Larry A. Auerbach, Esquire, and Michael K. Hagan, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.
William T. Weidle, Jr., Esquire, Office of Frank L. Pellegrini, St. Louis, Missouri, on behalf of respondent.

DECISION AND ORDER

Burroughs, Judge: Emerson Electric Company, Electronics and Space Division ("Emerson"), contests an alleged violation of 29 C.F.R. з 1904.7 for failure to make available OSHA forms 101 and 200 for the years 1982, 1983 and 1981 for examination during a complaint inspection conducted on July 18, 1984, to its Longwood, Florida, plant. The parties fully stipulated the facts for determination by the Commission.

On July 11, 1984, the Tampa, Florida, area office of the Occupational Safety and Health Administration ("OSHA") received a complaint from an employee of Emerson concerning employee exposure to the chemical trichloroethane at the Longwood, Florida, plant. The complaint alleged that employees in the manufacturing building were exposed to concentrations of trichloroethane that were causing illnesses, headaches, and stomach problems (Ex. 1).

Based on his evaluation of the complaint, the OSHA area director directed Compliance Officer John P. Santa Cruz to conduct an inspection of the plant.

Santa Cruz arrived at the plant on July 18, 1984, and presented a copy of the complaint to Bob Ranor, the plant manager, and Jo Rippetoe, the personnel manager. Santa Cruz requested permission to conduct an inspection of the plant and asked to examine OSHA forms 101 and 100 for the years 1982, 1983 and 1984.

After consultation with Emerson's corporate headquarters, Rippetoe agreed to permit a warrantless inspection limited to the allegations set forth in the employee complaint but refused to provide OSHA forms 101 and 1900 for examination. She advised Santa Cruz that the forms would not he provided except pursuant to a warrant or subpoena.

No recorded statistics, figures or written records were provided to Santa Cruz which would have enabled him to calculate the lost workday injury ("LWDI") rate pursuant to the methodology required by OSHA's Field Operations Manual. Santa Cruz was informed by Rippetoe that she was advised by Sheila Feldman of Emerson's corporate industrial relations staff in St. Louis, Missouri, that the establishment's LWDI rate was 2.9 for 1983 and 5.2 for 1982.

Under the general inspection procedures followed by the Secretary, the records sought by Santa Cruz are used in calculating the establishment's LWDI rate.

The LWDI rate calculated is compared to the most recently published BLS national rate for manufacturing. If the LDWI rate is below the BLS rate, a comprehensive safety inspection is not to be conducted. If the computed LDWI rate is at or exceeds the BLS rate for manufacturing, a comprehensive inspection is to be conducted by the compliance officer.

Although Emerson refused to provide the requested OSHA forms 101 and 200, no representative of the Secretary sought or obtained a warrant or administrative subpoena in order to determine whether Emerson maintained OSHA forms 101 and 200 or to examine those forms for 1982, 1983 and 1984 if they were maintained. The Secretary proceeded by issuing an "other" citation to Emerson on September 11, 1984, alleging a violation of 29 C.F.R. з 1904.7 for not making the forms available for inspection.

The cited regulation, 29 C.F.R. з 1904.7,[[1/]] requires an employer to provide to any representative of the Secretary of Labor, upon request, the records provided for in зз 1904.2, 1904.4 and 1904.5, for inspection and copying. Section 1904.2 [[2/]] requires an employer to maintain a log and summary of all recordable injuries and illnesses on a form known as OSHA No. 200 or an equivalent. Section 1904.4 [[3/]] requires a supplemental record of each recordable occupational illness or injury to be maintained on an OSHA form 101 or equivalent.

The regulations in issue have been validly promulgated pursuant to sections 8(c)(1) and (2),[[4/]] 29 U.S.C. зз 657(c)(1) and (2), of the Act. Section 8(c)(1) of the Act requires an employer to "make, keep and preserve, and make available to the Secretary" the records which the Secretary prescribes "by regulation as necessary or appropriate for enforcement of the Act or for developing information regarding the cause and prevention of occupational accidents and illnesses." Section 8(c)(2) specifically states that the Secretary shall prescribe regulations requiring employers "to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses." The use of the words shall prescribe implies that there was a mandatory requirement imposed upon the Secretary to promulgate appropriate regulations to effectuate the stated purpose.

Sections 1904.2 and 1904.4 of 29 C.F.R. comply with the requirements of sections 8(c)(1) and 8(c)(2) of the Act since they relate to the enforcement of the Art or the developing of information regarding the causes and prevention of accidents and illnesses. The Secretary has been granted specific authority to promulgate regulations for this purpose. The OSHA forms 101 and 200 are firmly established as required records under the Act and the regulations. Emerson does not argue to the contrary.

In order to establish a violation of 29 C.F.R. з 1904.7, the Secretary need only show that a request was made for the forms by one of his representatives and that Emerson failed to provide the records for inspection an d copying. The parties stipulated that Santa Cruz requested the forms on July 18, 1984, and that representatives of Emerson denied the request. A violation of the requirements of the regulation has been established.

Once it refused to make the records available. Emerson submits that the Secretary had to either apply to a U.S. Magistrate for a warrant or issue an administrative subpoena to compel production of the documents. Pertinent portions of the Secretary's Field Operations Manual were stipulated a, exhibit four. Where an employer refuses to allow access to the injury or illness records needed to perform a records review for purposes of determining whether the employer is to receive a comprehensive inspection, the manual states the compliance officer is to proceed as for any other case of refused entry.[[5/]] In such case, the area director is to notify the Regional Administrator who in turn consults with the Regional Solicitor when appropriate to determine if an administrative subpoena or a warrant should be sought.[[6/]]

In lieu of seeking a warrant or issuing an administrative subpoena, the Secretary cited Emerson for a violation of 29 C.F.R. з 1904.7. Emerson chose not to comply, and the Secretary has been prevented from examining and copying the forms. Emerson argues that the issuance of the citation was a "'coercive penalty' for the exercise of its Constitutional right and is unconstitutional under the Fourth Amendment." This is not a classic fourth amendment case since there has been no actual search and seizure. Emerson still retains control of the forms. None of the Secretary's representatives have sought to enter Emerson's premises against its will to search the premises or to seize or examine the forms without its consent. What Emerson seeks is not to prevent an unlawful search and seizure, but an immunity to the provisions of 29 C.F.R. з 1904.7 unless the Secretary seeks a search warrant or issues an administrative subpoena prior to proceeding against it.

The basic purpose of the fourth amendment is "to safeguard the privacy and security of individuals against arbitrary invasions by government officials."

Camara v. Municipal Court, 387 U.S. 523, 528, (1967). The capacity to claim the protection of the fourth amendment depends not upon a property right but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128 (1978). The Secretary submits that the fourth amendment is inapplicable since Emerson had no reasonable expectation of privacy with respect to the forms.

In enacting the Occupational Safety and Health Act of 1970, Congress conferred upon the Secretary broad powers of regulation which are accompanied by investigatory duties and powers designed to enable him to carry out the provisions of the Act. The Secretary of labor is authorized by section 8(1) of the Act to enter and inspect workplaces in order to carry out the purposes of the Act. Where the Secretary. as in this case, receives a written employee complaint that leads him to reasonably believe a violation exists at the workplace, section 8(f)(1) specifically requires him to conduct a "special inspection" as soon as possible to determine if the violation or danger exists. The Act nowhere states that the Secretary must secure a warrant before conducting a search; however, employers are not required to submit to his demand to inspect. The right to inspect is subject in all cases to judicial supervision. This is made clear by the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816 (19118), where the Court held that the fourth amendment requires that a warrant be obtained by Secretary prior to conducting a nonconsensual inspection under section (a) of the Act.

In Barlow's, Inc., an OSHA inspector entered the customer service area, presented his credentials to the president and general manager and informed them that he wished to conduct a search of the working areas of the business. The compliance officer was refused admission since he did not have a search warrant. The Secretary relied on section 8(a) of the Act, 29 U.S.C. з 657(a), which authorizes him to conduct inspections of workplaces. The Court in Barlow's, Inc., was concerned over the fact that "[t]he authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search." 436 U. S. at 323. The Court was of the opinion that a warrant would provide assurances from a neutral officer that the inspection was reasonable, was authorized by statute, and was pursuant to an administrative plan containing specific neutral criteria. The Court further noted that a warrant would also set the scope and objects of the search which would set limits on the inspection.

There was no specific reference to or discussion in the body of the opinion as to what procedure must be followed where records are sought that by law must be maintained by the employer. The court makes reference in footnote 22 to records required under section 8(c) of the Act. It points out that section 8(a) does not expressly include any records among those items or things that may be examined, and that section 8(c) states that the employer is to make available his pertinent records and to make periodic reports. The Court then states:

The Secretary's regulation, 29 CFR з 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. з 1903.7 requires inspectors to indicate generally "the records specified in з 1903.3 which they wish to review" but "such designations of records shall not preclude access to additional records specified in з 1903.3." It is the Secretary's position, which we reject, that an inspection of documents of this scope may be effected without a warrant. (underlining added.)

When footnote 22 is read in conjunction with footnote 23, it becomes clear that the rejection is directed to the scope of 29 C.F.R. зз 1903.31 and 1903.7.

Both of these regulations are quite broad in scope. Footnote 23 states that the Secretary limited his submission in the case to the constitutionality of a warrantless search authorized by section 3(a) and expressly declined to rely "upon the order obtained in this case." Since the Secretary did not rely upon the district court order, there was no necessity for the court to reject the document search, which was broad in scope, delineated in the court order.

Unlike зз 1903.3 and 1903.7, з 1904.7 makes reference to specific records provided for in зз 1904.2, 1904.4 and 1904.5. Sections 1904.2 and 1904.4 require employers to keep and maintain forms 101 and 200 or their equivalent. The forms are not to be kept for an employer's private use but for the benefit of the Secretary and for public purposes. Section 1904.7(b)(1) also provides that the form 200 shall, upon request, be made available to any employee, former employee and to their representatives for examination and copying. There was no intention that the forms were to be kept for the private use of an employer. Once the records were compiled pursuant to the Act and regulations, Emerson was in a real sense a custodian for the records. It held the records subject to examination by the Secretary and has no real grounds on which to refuse production for inspection and copying. It has no reasonable expectation of privacy in keeping and maintaining OSHA forms 101 and 200. In compiling and maintaining the required records, it has the incident obligation to permit inspection conditioned upon constitutional safeguards being adhered to in the process of the examination. In this regard, it has a right to be assured that the safeguards are in place before surrender of the records.

A superficial analysis mistakenly leads one to the conclusion that there is no reason to require a warrant or administrative subpoena be issued to examine forms 101 and 200. The inquiry is one that OSHA is authorized by law to make and the forms are relevant to carrying out the purposes of the Act. Obtaining a search warrant would appear to be a needless act since Emerson has no reasonable expectation of privacy to the forms. The scope of the document inspection is specific since Santa Cruz requested the forms by number. There was no fishing expedition. Emerson was never in doubt as to what was required.

The point at issue evolves into a question of determining when the records must be made available for examination. At some point in time, the Secretary is entitled to examine and copy the forms. The Court in Barlow's Inc., footnote 23, makes it clear that the Secretary can exercise the inspection authority "conferred by з 8 pursuant to regulations and judicial process that satisfy the Fourth Amendment." At this juncture, the Secretary has not followed the judicial process that satisfies Emerson's rights under the fourth amendment. The end result may be the same, but the fourth amendment requires that certain procedures be followed in a nonconsensual examination or search. The Secretary's position in this case removes the safeguards granted by the fourth amendment.

In Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S. Ct. 1727, 1731 (1967), the Court held that "[e]xcept in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." One of the troubling factors to the Court was that the practical effect of not requiring a warrant left the occupant to the discretion of the official in the field. It refused to conclude that the protections provided by the warrant procedure were not needed and held that broad statutory safeguards are no substitute for individualized review, particularly when the safeguards may only be invoked at the risk of a criminal penalty. While no criminal penalty is involved in this case, action has been taken against Emerson by finding a violation of 29 C.F.R. з 1904.7.

Emerson submits that the issuance of the citation is a coercive action precipitated by its refusal to allow a search of its premises. The point is made that it has suffered as a result of exercising its rights granted by the Court in Barlow's, Inc. While no penalty has been proposed for the failure to comply with section 1904.7, an immediate abatement date has been specified. Presumably, the fact of abatement will have to be verified by a second inspection, again without a warrant. In the event abatement has not been accomplished, the Secretary could conceivably propose penalties against Emerson for its failure to abate. There is room for abuse in this process. An employer might be coerced into waiving his fourth amendment rights because of the possibility of penalties assessed by the Secretary.

There is room for further abuse in giving broad discretion to compliance officers in the field. OSHA form 101 requires an employer to furnish information as to the place of the accident or exposure, what the employee was doing when injured, and how the accident occurred. In describing how the accident occurred, the forms asks for the following information (Ex. 2):

Describe fully the events which resulted in the injury or occupational illness. Tell what happened and how it happened. Name any objects or substances involved and how they were involved. Give full details on all factors which led or contributed to the accident.

If an employer fills out the form in the detail required, it is possible that representatives of the Secretary in a nonconsensual inspection might be able to use the information to cite the employer for a specific violation of section 5(a)(1) or 5(a)(2) of the Act. In such a case, the Secretary would be able to accomplish through the backdoor what he is otherwise prevented from doing by the decision in Barlow's Inc.

The Secretary's argument in essence means that a compliance officer can walk into the public areas of an employer's business, present his credentials and demand to see forms 101 and 200. There is nothing in Barlow's, Inc., that indicates an employer has limited fourth amendment rights as to the enforcement of any part of the Act. The Secretary's right under section 8 of the Art is subject to judicial process that satisfies the requirements of the fourth amendment.

There is no indication that any provisions of the Act can be enforced in a nonconsensual inspection.

In See v. City of Seattle, 387 U.S. 541, 865 S. Ct. 1737 (1967), the Court concluded that an administrative agency has the right to conduct all reasonable inspections of documents which are contemplated by statute but that the agency must delimit the confines of a search by designating the needed documents in a formal subpoena. This procedure affords considerable safeguards against abuse of the power to inspect by an enforcement officer in the field since the subpoena is issued and enforced by the agency and net the officer in the field.

Where a warrant is secured or an administrative subpoena issued, the decision to enter and examine will not be the product of the unreviewed discretion of the enforcement officer in the field. The employer will also have an opportunity to obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. In this instance, Emerson is being faced with a violation and possible subsequent action for failure to abate without having a ruling on the reasonableness of the demand. Action has been taken by the Secretary to sustain a violation prior to having a judicial officer deciding if Emerson's rights under the fourth amendment must yield to the right of search or administrative subpoena.

While no ill motive is attributed to the Secretary in this matter, it is impossible to conclude that the protections provided by a warrant or administrative subpoena are not needed in or will not be needed in countless cases of like circumstances that might arise in the future. As the court noted in Camara, broad statutory safeguards are no substitute for individualized review. It is impossible to anticipate in what way abuse of discretion might arise.

The review of the forms is part of the inspection process and Barlow's, Inc., prevents a nonconsensual inspection without a warrant. Even if the Secretary's position was sustained, he would not have access to the premises to conduct an inspection to determine if violations, exist in the workplace. In the final analysis, the Secretary will have gained little and the safety of employees in the particular workplace will not be enhanced by this course of action. The public interest does not demand such an exception to the fourth amendment and the Secretary has shown no compelling need as to why he must have a nonconsensual examination and inspection of the forms. The present enforcement procedures open to the Secretary under the rationale of Barlow's, Inc., do not demand an eroding of an employer's rights guaranteed under the fourth amendment.

A significant point in Barlow's Inc., Camara and See is that the Court was concerned with unbridled discretion being given to executive or administrative officers, particularly those in the field, as to when to and whom to search. It was keenly aware that such situations can lead to abuse and disregard for rights of the inspected party. Sustaining the position of the Secretary would give him a license to proceed in the very manner which the Court has sought to prevent. The Court has erected safeguards which must be followed to insure fourth amendment protection for the inspected party.

Where an employer refuses to allow the compliance officer access to the injury or illness records needed to perform a records review to determine whether the employer is to receive a comprehensive inspection, the Field Operations Manual sets out the procedure for obtaining an administrative subpoena or warrant.[[7/]] Each of these procedures would safeguard the rights of the employer since he would be able to obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. Emerson had a constitutional right to insist that the compliance officer issue an administrative subpoena or obtain a warrant to search prior to complying with the request. He may not be charged with a violation for exercising his rights under the fourth amendment. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1721 (1967); See v. City of Seattle., 387 U.S. 541, 87 S. Ct. 1737 (1967). The violation of з 1904.7 is vacated.

In A.B. Chance Co., OSAHRC BNA OSHC 1985 CCH OSHD ╢ (No. 84-519, January 30, 1985), Commission Judge Joe Sparks, faced with an identical issue, held that the employer violated 29 C.F.R. з 1904.7 by refusing to make OSHA forms 101 and 200 available for inspection and copying. He concluded that there was no expectation of privacy on the part of the employer in maintaining the records and that there is no "societal interest to be served by protecting them from disclosure or by requiring a warrant for their production." A similar conclusion was reached by Commission Judge Edwin Salyers in Kings Island, Division of Taft Broadcasting Co., OSAHRC 1983 CCH OSHD ╢ 26,638, (No. 82-1016, July 6, 1983) (review directed). Since these decisions are by Commission Judges and not the Commission, they are not binding precedent and have not been followed for the reasons set forth in this decision.

FINDINGS OF FACT

1. Emerson Electric Company, Electronics and Space Division ("Emerson"), maintains and operates a plant located on Miller Street in Longwood, Florida, which is engaged in manufacturing electronic equipment (Para. II, Complaint and Answer; Tr. 3).

2. On July 11, 1984. the Tampa, Florida, area office of the Occupational Safety and Health Administration received a complaint from an employee of Emerson's Miller Street plant concerning employee exposure to the chemical trichloroethane (Ex. 1; Tr. 3)

3. As a result of the complaint having been received, Compliance Officer John A. Santa Cruz was directed to conduct an inspection of the plant (Tr. 3).

4. On July 18, 1984, Santa Cruz arrived at the plant and presented a copy of the compliant to the plant manager, Bob Raynor, and the personnel manager, Jo Rippetoe (Tr. 3).

5. During the opening conference, Santa Cruz requested that he be permitted to conduct an inspection of the plant and to examine Emerson's completed OSHA forms 101 and 200 for the years 1982, 1983 and 1984 (Tr. 3-4).

6. Riptoes refused to provide OSHA forms 101 and 200 for review and informed Santa Cruz that they would not be provided except pursuant to a warrant or subpoena. She agreed to permit a warrantless inspection limited to allegations stated in the complaint (Tr. 4, 5).

7. No recorded statistics, figures or written records of any kind were furnished to Santa Cruz to enable them to calculate the lost workday injury rate (LWDI). Rippetoe told Santa Cruz that Sheila Feldman of Emerson's corporate industrial relations staff in St. Louis had told her that the LWDI for the plant was 2.9 in 1983 and 5.2 in 1982 (Tr. 4-5).

8. The parties stipulated that, if a violation of 29 C.F.R. з 1904.7 for failure to provide OSHA forms 101 and 200 was determined to have existed, any determined violation should be classified as an "other than serious" violation and no penalties assessed for the violations (Tr. 5).

CONCLUSIONS OF LAW

1. Emerson, at all times material hereto, was engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. Emerson, at all times material hereto, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. Emerson was not in violation of 29 C.F.R. з 1904.7. It did not consent to an examination of the requested forms and made clear to the compliance officer that he would need a warrant or administrative subpoena to examine and copy the forms. The Secretary's right to inspect the records is subject to judicial process that satisfies the requirements of the fourth amendment.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED: That the "other" citation issued to Emerson on September 11, 1984, is vacated.

Dated this 27th day of March, 1985.

JAMES D. BURROUGHS
Judge

SECRETARY OF LABOR,
Complainant,

v.

EMERSON ELECTRIC COMPANY,
ELECTRONICS AND SPACE DIVISION,
Respondent

OSHRC DOCKET NO. 84-0985

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

Executive Secretary

Dated: APR 8, 1987

FOOTNOTES:

[[1]] In particular, we do not agree with Judge Burroughs' conclusion that employers have no reasonable expectation of privacy in their injury records. See Kings Island, slip op. at pp. 6-18.

[[2]] Emerson Electric, the non-petitioning party in this case, did not file a brief on review or otherwise respond to our briefing notice. Here, Emerson Electric's failure to respond to the briefing notice has had no effect on our ability to decide this case because the same issue had been thoroughly discussed in the briefs in Kings Island and in three pending judges' decisions. However, we express our strong disapproval of counsel's failure to provide analysis of the very significant constitutional issue raised here.

[[3]] Our decision in King's 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. {з} 556e. Slip Op. at p.11 n.6. We accordingly afforded the Secretary an opportunity in King's Island to introduce evidence contrary to those officially-noticed documents. We afford the Secretary the same opportunity in this case.

[[1/]] Section 1904.7(a) of 29 C.F.R. provides:
Each employer shall provide, upon request, records provided for in зз 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 provisions of the act, and by representatives of the Secretary of Health, Education, and Welfare during any inspection 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 sections 18 and 24 of the act.

[[2/]] Section 1904.2(a) of 20 C.F.R. provides:
Each employer shall, except as provided in paragraph (b) of this section, (1 ) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but 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 used. The log and summary shall be completed in the detail provided in the form and instructions on form OSHA No. 200.

[[3/]] Section 1904.4 of 29 C.F.R. provides:
In addition to the log of occupational injuries and illnesses provided for under з 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 Form OSHA No. 101. Workmen's compensation, insurance, or other reports are acceptable alternative records if they contain the information in required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

[[4/]] Sections 9(c)(1) and (2) of the Act, in pertinent part, provide:
(c)(1) Each employer shall make, keep and preserve, and make available to the Secretary or the Secretary of Health, Education, and Welfare, such records regarding his activities relating to this Act as the Secretary, in cooperation with the Secretary of Health, Education, and Welfare, may prescribe by regulation as necessary or appropriate for enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.
***
(2) The Secretary, in cooperation with the Secretary of Health. Education, and Welfare, shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.

[[5/]] Paragraph D.I.d. (4) of Chapter III of the Field Operations Manual provides in part:
Administrative Subpoena. If the employer refuses to allow the CSHO access to the injury or illness records needed to perform a records review for purposes of determining whether the employer is to receive a comprehensive inspection, the CSHO shall proceed as for any other case of refused entry....

[[6/]] Paragraph D.I.d.(4)(b) provides:
(b)Upon notification, the Regional Administrator shall consult with the Regional Solicitor when appropriate to determine if an administrative subpoena or a warrant should be sought under the circumstances. If the decision is to obtain an administrative subpoena, the Regional Administrator shall request the Regional Solicitor to take appropriate steps to obtain a subpoena from the Assistant Secretary through the National Solicitor's Office.

[[7/]] There is an apparent conflict in the courts as to whether the Secretary must issue an administrative subpoena pursuant to section 8(b) of the Act, 29 U.S.C. з 657(b), to inspect the records or whether he can inspect them by obtaining a warrant. Compare In Matter of Kulp Foundry, Inc., 691 F.2d 1125 (3d Cir. 1982), and In re Inland Steel Co., 492 F. Supp. 1310 (N.D. III, 1980), with Donovan v. Wollaston Alloys Inc., 695 F.2d I (1st Cir. 1982).