SECRETARY OF LABOR,
Complainant.
v.
BALLY'S PARK PLACE HOTEL & CASINO
Respondent

OSHRC DOCKET NOS. 87-1849 & 88-0337


DECISION

Before: FOULKE, Chairman: and WISEMAN, Commissioner.[[1]]

BY THE COMMISSION:

These cases are before the Commission pursuant to a petition by Bally's Park Place Hotel & Casino ("Bally's) for review of a decision by a Commission Administrative Law Judge. The judge held that Bally's violated two provisions of the records access rule, 29 C.F.R. 1910.20, promulgated by the Secretary's Occupational Safety and Health Administration ("OSHA"). His basic grounds were that Bally's refused to turn over to OSHA and to an employee representative a copy of certain records of employee exposure to airborne iodine at Bally's Atlantic City, N.J., casino. Bally's argues that the records are exempt from disclosure under the attorney work product doctrine--or rule--because they were prepared for its attorney in anticipation of litigation. We find that Bally's objections are well founded, and therefore we vacate the citations.

BACKGROUND

Based on a complaint by a Bally's employee, OSHA wrote Bally's on March 10, 1987,to request that the company investigate iodine emissions from an automatic, cold water glass washing machine located in a bar at its casino. OSHA regulates employee exposure to iodine through the standard codified at 29 C.F.R. 1910.1000. Bally's general counsel, Dennis Venuti, ordered that the machine be tested for iodine emissions, and that a confidential report of the results be sent to him. Bally's hired an outside consultant to do the testing. Venuti testified without contradiction that the test results were prepared for him in anticipation of litigation.[[2]]

Relying upon the attorney work product rule, Bally's denied repeated requests by the employees' union representatives, and by OSHA, to be provided with a copy of the iodine sampling results. The Secretary issued an administrative subpoena to Bally's for the documents. Bally's refused to comply, again on the ground of the work product rule.

The Secretary pursued the subpoena no further. Rather, she issued a citation to Bally's for a willful violation of section 1910.20(e)(1)(i)[[3]] for failure to provide the union representative with access to the iodine sampling results. That citation is the subject of Docket No. 87-1849. Later, the Secretary cited Bally's for a willful violation of section 1910.20(e)(3)(i) [[4]]for failure to provide OSHA with access to those records. That citation is the subject of Docket No. 88-0337. The judge affirmed the citations as serious and assessed penalties of $600 for each.

DISCUSSION

a. Whether the work product rule applies to the records sought

The attorney work product rule has been codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides:

[A] party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. . . .

Fed. R. Civ. P. 26 (b)(3). That rule is applicable in Commission proceedings, because the Commission has not adopted a specific provision differing from it. 29 U.S.C. 661(g) ("Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure"); Commission Rules 2(b) and 52(a), 29 C.F.R. 2200.2(b) and 52(a) ("In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure"). See Continental Oil Co., 9 BNA OSHC 1737, 1741 & n.6 1981 CCH OSHD 25,371, pp. 31,579-80 & n.6 (No. 79-570, 1981).[[5]] Certain exceptions to Fed. R. Civ. P. 26(b)(3) are set forth in a different part of the rule. Those exceptions are not relevant here.

Under the express terms of the rule, the qualified work product protection of Rule 26(b)(3) applies to the iodine sampling records, for discovery purposes, because: (1) the records are documents, (2) they were "prepared in anticipation of litigation," and (3) they were prepared for Bally's attorney by Bally's consultant or agent. See Continental Oil Co., 9 BNA OSHC at 1741 & n,9, 1981 CCH OSHD at pp. 31,579-80 & n.9, citing United States v. Nobles, 422 U.S 225, 238-39 (1975). See also, e.g., McNulty v. Bally's Park Place, Inc., 120 F.R.D. 27, 29-30 (E.D. Pa. 1988) (statement by eyewitness to slip and fall, given to Bally's insurance adjuster when the filing of a lawsuit against Bally's over slip and fall could reasonably be anticipated, was covered by Rule 26(b)(3)).

Nevertheless, the Secretary argues that Rule 26(b)(3) does not govern this case because it involves a subpoena issued before the litigation began, rather than a discovery request. However, the Supreme Court has applied the Rule 26(b)(3) criteria to determine whether a comparable investigative tool, an Internal Revenue Service ("IRS") summons, should be enforced:

Nothing in the language of the IRS summons provisions or their legislative history suggests an intent on the part of Congress to preclude application of the work-product doctrine. Rule 26(b)(3) codifies the work-product doctrine, and the Federal Rules of Civil Procedure are made applicable to summons enforcement proceedings by Rule 81(a)(3).

Upjohn Co. v. United States, 449 U.S. 383, 398-99 (1981), Fed. R. Civ. P. 81(a)(3), referred to in the previous quotation, also applies the Federal Rules of Civil Procedure to proceedings to enforce OSHA subpoenas. It provides:

... These rules apply to proceedings to compel the giving of testimony or production of documents in accordance with a subpoena issued by an officer or agency of the United States under any statute of the United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings.

(Emphasis added). See also, United States v. Rockwell Intl., 897 F.2d 1255, 1265-66 (3d.Cir. 1990) (attorney work product rule may be interposed against IRS summons). OSHA subpoenas are "issued by an officer or agency of the United States," pursuant to section 8(b) of the Occupational Safety and Health Act ("the Act"), 29 U.S.C. 659(b). There is no provision affecting the application of the Federal Rules to such subpoenas.

We hold that the Rule 26(b)(3) criteria determine whether disclosure of Bally's report may be compelled by citation, subpoena, or discovery. Rule 26(b)(3) codifies an historical "public policy underlying the orderly prosecution and defense of claims." Hickman v. Taylor, 329 U.S. 495, 510 (1947) (in performing duty to gather facts for court and client, "it is essential that a lawyer work...free from unnecessary intrusion by opposing parties and their counsel") The mere form of the proceeding should not change the protections for an attorney's work product. Here, the Secretary could have attempted judicial enforcement of the subpoena she issued. As mentioned above, the work product rule would have been fully applicable in such a proceeding.[[6]]

The judge held that the records contained test results and other factual information and were unprotected by the work product rule. He stated that "an in camera inspection revealed that the test was purely technical information." However, as applicable case precedent makes clear, factual portions of a document covered by the qualified privilege of Rule 26(b)(3) are protected by its express terms, unless the special showing of need and lack of alternatives is made. Continental Oil, 9 BNA OSHC at 1741-42, 1981 CCH OSHD at pp. 31,579-80 (factual records contained in respondent's expert investigative report prepared for litigation were protected by work product rule).[[7]]

The Secretary argues that even if the consultant's report is protected by the work product doctrine, the cited standards should be construed to require disclosure of the factual Information in It. She cites the repeated statements in the preamble to section 1910.20 that the basic reason for the regulation is the need for "information." E.g., Access to Employee Exposure and Medical Records: Final Rule, 45 Fed. Reg. 35,212, 35,213 (1980). However, section 1910.20 is expressly limited to access to "records."[[8]] That rule does not require the employer to divulge information, other than the records that are subject to access under the rule. A regulation may not be construed to mean what the agency might have intended, but did not adequately express. E.g., Bunge Corp., 12 BNA OSHC 1785, 1791, 1986-87 CCH OSHD 27,565, p, 35,806 (No. 77-1622, 1986).

As noted above (n.7), the work product doctrine protects only specific "documents and tangible things." Thus, disclosure of the underlying facts mentioned in documents may be pursued by other means. In these cases, however, the Secretary has not attempted by other means to obtain the facts she seeks. Thus, we only decide whether the Secretary is entitled to the records in question. We note, however, that discovery of the underlying facts from Bally's expert consultant might be subject to restrictions in these circumstances, under Fed. R. Civ. P. 26(b)(4)(B).[[9]]

b. Whether the Secretary has abrogated work product protection for employee exposure records under 1910.20

The judge accepted the position of the Secretary's counsel that in promulgating the records access rule, the Secretary eliminated any exception to the disclosure of covered records which may have otherwise applied under the work product doctrine. He based that finding on developments subsequent to the rule's promulgation. We disagree with that conclusion. As mentioned above, the qualified protection for attorney work product has emerged from a basic public policy that has historical roots in the common law tradition.

It is a well-established principle of statutory construction that "[t]he common law ... ought not to be deemed to be repealed, unless the language of a statute be clear and explicit for this purpose."

Norfolk R. & H. Auth. v. C & P Telephone Co., 464 U.S. 30, 35 (1983) quoting Fairfax's Devisee v. Hunter's Lessee, 7 Cranch (11 U.S.) 603 (1813).

There is no "clear and explicit" language in the Act either repealing or authorizing the Secretary to abrogate the work product doctrine. The Secretary's counsel argues that the Act provides authority to abrogate work product protection because Congress provided for access to exposure records by the Secretary and by employees, under sections 8(c)(1) and (3) of the Act, 29 U.S.C. 657(c)(1) and (3). However, those provisions do not mention the work product doctrine. Nor do they expressly grant authority to abrogate it. [[10]] The legislative history of the Act also does not indicate an intention to authorize the Secretary to abrogate the work product doctrine.

Even assuming that something less than "clear and explicit" statutory authority would he sufficient to authorize abrogation of the work product doctrine as to exposure records, no such authority may even be implied here. As discussed above, section 12(e) of the Act affirmatively incorporates the work product doctrine into Commission proceedings, through the Federal Rules of Civil Procedure. Under section 12(e), only the Commission may alter the application of the work product doctrine in its proceedings, and it has not done so. It would not be reasonable to conclude that section 8(c) of the Act implicitly gives the Secretary authority to abrogate work product protection, in view of the fact that Congress contemplated that the work product doctrine would apply in proceedings to review contested citations.

Moreover, an interpretation of a statute or regulation that is contrary to a clear public policy, such as the attorney work product doctrine, is not favored. See, e.g., Creque v. Luis, 803 F.2d 92, 96 (3d Cir. 1986) (clear public policy considerations "exert a significant influence in the process of statutory interpretation by the courts") quoting 2A Sutherland, Statutory Construction, 56.01 (4th ed. 1984). See generally Pillsbury v. United Engg. Co., 342 U.S. 197 (1952). Under these circumstances, we will not defer to the interpretation of the Act advanced by the Secretary's counsel. Cf. Martin v. OSHRC (CF& I Steel Corp.), 111 S.Ct. 1171, 1178-79(1991) (Secretary's interpretations of the Act and of her regulations are entitled to judicial deference where reasonable).

Because the Act does not authorize abrogation of the work product doctrine, the Secretary may not abrogate the doctrine by regulation. "It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress." Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988). The Secretary essentially concedes that there can be no abrogation of the doctrine without sufficient statutory authority.

Even if the Act had authorized the Secretary to abrogate work product protection for exposure records, there is no reasonable basis to conclude that she has done so. The original records access rule contained no provision concerning documents prepared in anticipation of litigation. 45 Fed. Reg. 35,212. Nor did its Preamble discuss the subject. The Secretary's counsel argues that an intent to abrogate work product protection for exposure records is found in an interpretation of the rule that that the Secretary issued in 1981. Access to Employee Exposure and Medical Records; Partial Stay; Interpretations, 46 Fed. Reg. 40,490 (1981). We disagree. That interpretation 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. (emphasis added). Although the interpretation uses medical records as an example of documents that might not be covered by the rule, the passage covers records generally. Read as a whole, the passage indicates to us that the Secretary actually intended not to abrogate the work product doctrine with respect to exposure records. The Commission recently interpreted the same passage, in upholding the Secretary's position that the records access rule does not affect the records disclosure provisions of a worker's compensation law:

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 [Worker's Compensation] proceedings for that reason.

General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2067, 1991 CCH OSHD 29,240, pp. 39,166-67 (No. 82-630, 1991). The Secretary's 1981 interpretation indicates an intent to apply the rule consistently with the work product doctrine.

The Secretary further argues that the 1988 revisions to the records access rule shows an intent by the Secretary to abrogate protection for exposure records. Access to Employee Exposure and Medical Records: Final Rule, 53 Fed. Reg. 38,140 (1988). At that time, the Secretary amended the definition of "employee medical record" to exclude "records created solely in preparation for litigation which are privileged from discovery under the applicable rules of procedure or evidence." 29 C.F.R. 1910.20(c)(6)(ii)(C). Id. at 38,163. No such amendment was written into the standard regarding employee exposure records.

However, the preamble to the 1988 revisions reaffirmed and reprinted the 1981 interpretation in discussing the term employee medical records. Id. at 38,150-51. As discussed above, we conclude that the 1981 interpretation actually shows that the Secretary did not intend to abrogate work product protection for exposure records. We also conclude that the Secretary's silence on abrogation of the work product rule relative to exposure records in the 1988 revisions does not require the conclusion that abrogation as to that category of records was the result which she intended. If anything, that silence may be indicative of the fact that more often than with medical records, exposure records are prepared pursuant to the requirements of an OSHA standard, rather than to prepare for prospective litigation, and thus art not covered by the attorney work product rule. Consequently, application of the work product rule in the context of exposure records would arise less often than with medical records. That could explain why in the 1988 revisions the Secretary made the clarification as to medical records, but saw no need to address the lesser issue of abrogation as to exposure records. Moreover, the Secretary has not established a pattern of enforcement by OSHA in which the agency has considered the work product rule as having been abrogated as to exposure records.

For these reasons, we find no reasonable basis to conclude that the Secretary intended to abrogate work product protection for exposure records under the records access rule.  Under these circumstances deference is not due to the Secretary's interpretation of the rule.  Compare CF&I Steel Corp. at 1179 (reviewing court may consult the Secretary's interpretive rules "to determine whether the Secretary has consistently applied the interpretation embodied in the citation, a factor bearing on the reasonableness of the Secretary's position") and Gardebring v. Jenkins, 485 U.S. 415, 429-30 (1988) (agency's interpretation of its regulation upheld where there was no claim that it was inconsistency with Constitutional or statutory mandate, with plain language of regulation, or with agency's intent when promulgated regulation) with Bowen v. Georgetown Univ. Hospital, Id. at 212 (Supreme Court has never required deference to "agency litigation positions that are wholly unsupported by regulations, rulings, or administration practice [or] to an agency counsel's interpretation of a statute where the agency itself has articulated no position on the question")  and Inv. Co. Inst. v. Camp, 401 U.S. 617, 617, 629-39 (1971) ( Court rejected interpretation of agency regulation urged by agency's appellate counsel, where interpretation was contrary to literal language and intent of statute).

Finally, we note that the 1988 revisions by themselves have no effect on these cases.   The citations predate those revision by many months, and only allege violations of the original records access rule.

c. Whether the Secretary made the special showing that would justify disclosure of attorney work product

The qualified work product protection of Fed. R. Civ. P. 26(b)(3) may be overcome if the Secretary "has substantial need of her case, and "is unable without undue hardship to obtain the substantial equivalent of the materials by other means."   The Commission has required a showing that other discovery methods would be sufficient to obtain the facts sought in order to justify discovery of work product.   Continental Oil Co., 9BNA OSHC at 1742-43, 1981 CCH OSHD at pp. 31,580-82.

The judge held that even it the records  sought were work product, they are discoverable because the Secretary has a substantial need for them.  He concluded that Bally's effectively denied OSHA and the employees a means of obtaining the results themselves, because the machine was taken out of service after Bally's test. He further found that OSHA reasonably relied on Bally's to conduct the test and submit the results to OSHA. He essentially held that there was an understanding between OSHA and Bally's to that effect. Bally's denies that such an understanding existed, and argues that the Secretary failed to make the required showings of need and lack of alternatives. The Secretary does not address these issues.

We conclude that, without undue hardship, OSHA would have been able to obtain substantially equivalent test results. The judge cited no evidence that Bally's precluded OSHA from testing the machine, and we have found none. Bally's represents that it did not deny OSHA the opportunity to test the machine, and notes that OSHA never asked to conduct its own tests. The evidence indicated that Bally's performed its own tests by putting the machine back in service temporarily for that purpose, after it had been shut down for weeks following OSHA's letter. The Secretary has not shown that OSHA was unable to test the machine in a similar way.

The evidence indicates that OSHA's Camden, New Jersey, area office was backlogged with scheduled inspections when the Bally's employee first filed the complaint. The supervisory industrial hygienist at the area office, Phyllis Kyner, testified that she initially told the complaining employee that it might take OSHA a month or two to conduct an inspection. The employee then requested and received quicker action through OSHA's nonformal complaint procedure. The action taken by OSHA included sending the March 10, 1987 letter that informed Bally's of the iodine emissions problem. Thus, we find that the Secretary has not shown that OSHA was unable, without undue hardship, to obtain the necessary information by means other than Bally's records.

The judge specifically found that, because of the backlog of scheduled inspections, "OSHA reasonably relied on Bally's to conduct the test and submit the results." His first ground for that finding is that "Congress intended that employers assist the Secretary in providing a safe and healthful working environment." In support, he cited Yelvington Welding Serv., 6 BNA OSHC 2013, 1978 CCH OSHD 23,092 (No. 15958,1978). However, requiring an employer to turn over test results prepared in anticipation of litigation against it was not one of the forms of employer assistance referred to by Congress. The forms of employer assistance discussed in Yelvington were having representatives accompany OSHA compliance officers on inspections, and reporting major accidents to OSHA, as required by 29 C.F.R. 1904.8.

The judge's second ground for that finding is that OSHA had an understanding with Bally's that the company would turn its test results over to the agency. However, the evidence he cited in support of this finding merely indicates that OSHA requested Bally's to conduct an internal investigation of iodine emissions, and to provide OSHA with copies of any tests that Bally's conducted. It does not indicate that the company ever had a meeting of the minds with OSHA that it would disclose the test results to the agency[[11]]

There was conflicting testimony about one discussion on the sharing of test results that occurred on the day the tests were conducted. Jerome Page, business representative for the employees' union, testified that he asked Veronica Ghetie, who conducted the test, whether he could have a copy of the report, and she replied, "No problem, none at all." Page also testified that Bally's Labor Relations Manager Tartaglio then walked up, that Ghetie asked him if it would be "okay" to give Page a copy of the report, and that Tartaglio replied, "No problem."

Tartaglio testified, however, that all he said was "No," when Page requested a copy of the report from Ghetie that day. The judge credited Tartaglio's testimony on this issue. The Secretary does not challenge that finding by the judge. In any event, Bally's consistently denied requests by Page and OSHA officials for the test results, beginning shortly after the test was made. OSHA has not established that it reasonably relied on Bally's to submit the test results as a basis for the agency's failure to inspect the dishwasher.

Fed. R. Civ. P. 26(b)(3) requires that the party seeking materials (1) have a substantial need for them, and (2) be unable without undue hardship to obtain the substantial equivalent by other means. Because the Secretary has failed to establish the second prong of that test, we need not reach the issue of whether she established a substantial need for the test results.Thus, we conclude that the records sought are exempt from disclosure under the qualified protection of the attorney work product rule.

CONCLUSION

For the foregoing reasons, we reverse the decision of the administrative law judge and vacate the citations issued to Bally's in these cases.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: November 7, 1991


SECRETARY OF LABOR,
Complainant,
v.
BALLY'S PARK PLACE HOTEL & CASINO,
Respondent.

OSHRC Docket Nos. 87-1849 & 88-0337

Region II

APPEARANCES:

HARRY W. SCOTT, JR., ESQUIRE
U.S. Department of Labor Office of the Solicitor
For the Complainant

DAVID R. MILLER, ESQUIRE
Grotta, Glassman, and Hoffman, P.A.

For the Respondent

DECISION AND ORDER

TENNEY, JUDGE

PROCEDURAL BACKGROUND

This case arose from an employee complaint to the Occupational Safety and Health Administration (hereinafter OSHA) of sore throats, eye irritation, and skin rashes. After an investigation and a chain of related circumstances, the Secretary cited Bally's Park Place Hotel & Casino (hereinafter Bally's) for two violations.

Bally's conducted an air sampling test in the casino service bar #2 area following a series of communications with OSHA, the Atlantic city Health Department, and employee representatives. Thereafter, Bally's denied the employee representative and OSHA access to the test results based on the work product rule.

On July 30, 1987, the Secretary served upon Bally's a subpoena duces tecum. The subpoena requested any documents containing information concerning employee exposure to a toxic substance or harmful physical agent such as: (1) environmental workplace monitoring, (2) biological monitoring results, or (3) any other record which revealed the identity of a toxic substance or harmful physical agent. (Exhibit R-2.) Again, Bally's asserted the work product rule and refused to comply with the subpoena. On August 17, 1987, Bally's submitted through its attorneys, a position statement which more fully explained their reasons for not complying with the subpoena. (Exhibit R-3.)

On October 26, 1987, the Secretary issued Bally's its first violation. Citation No. 1, Item 1, alleges a willful violation of 29 C.F.R. 1910.20(e)(1)(i) [[1]]. The Complaint alleges that the employer did not provide access to records containing iodine sampling results conducted on or about May 4 & 5, 1987, at casino service bar #2 within a reasonable time (no later than 15 days) when requested by an employee or designated representative. A proposed penalty of $6,000 was assessed. This case was assigned the Docket No. 87-1849.

On January 20, 1988, the Secretary issued Bally's its second willful violation. The second citation, Citation No. 1, Item 1, alleges a violation of 29 C.F.R. 1910.20(e)(3)(i) [[2]]. The Complaint alleges that access to employee exposure records related to the May 4 and 5, 1987, testing at casino service bar #2 were not given to the Camden, New Jersey, OSHA Area Director or his representative after said records were subpoenaed. (Tr. 66-67.) This case was assigned the Docket No. 88-0337.

A notice of contest was filed in each case and each was timely. The cases were consolidated for hearing purposes only. (Tr. 4) A hearing was held on September 8, 1988, in Philadelphia, Pennsylvania; post hearing briefs have been filed and considered.

DECISION

1. Bally's has its principal place of business in Atlantic City, New Jersey, and is engaged in operating a casino hotel. Many of the materials and supplies used and/or manufactured by Bally's originated and/or were shipped outside the State of New Jersey. (Complaint and Answer, Paragraphs 2 & 3.) Thus, Bally's is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act, 29 U.S.C. 652(5).

2. Casino service bar #2 utilized a dishwasher that required an iodine-chlorine additive called Mikroklene during the cold water rinse cycle. (Testimony of Ms. Kyner, Tr. 143; Exhibit C-1.) Ms. Jean Quinn, a bartender at casino service bar #2 for almost nine years, noted that the eight-year-old dishwasher required frequent service due to damaged pipes, flooding, and failure to hold chemical settings. (Tr. 18, 25, 27-28.) The dishwasher was not operated correctly; this resulted in iodine vapor fumes. (Testimony of Mr. Page, Tr. 32-33; that of Mr. Tartaglio, Tr. 57; that of Ms. Kyner, Tr. 128.) These fumes caused numerous employee complaints. (Testimony of Mr. Venuti, Tr. 164; Exhibit C-2.)

3. Ms. Quinn and other employees complained of the condition in the bar. (Testimony of Ms. Quinn, Tr. 28.) Complaints were of the following conditions: bloodshot eyes, eye infections, burnt cheeks, nose runs, sore throats, frequent bronchitis, skin rashes, and other skin conditions. (Testimony of Ms. Quinn, Tr. 16; that of Ms. Kyner, Tr. 126, 142.) In addition, it was complained that the iodine vapors were sufficient to stain walls, ceilings, and employees' shirts brown or yellow.(Testimony of Mr. Siletsky, Tr. 94.)

4. On March 10, 1987, Mr. Allendorf, Area Director of Camden OSHA, by letter requested BalIy's to investigate the alleged condition and make any necessary corrections or modifications and submit any supporting documents such as monitoring results. (Exhibit J-1.)

5. Mr. Richard Tartaglio, Director of Labor Relations at Bally's, responded on March 16, 1987, stating the complaint had been fully investigated and had no merit. (Exhibit C-1.) Bally's investigation included a check of the venting system and a review of the Mikroklene directions for use. Mr. Tartaglio stated that improper use by bar porters resulted in an inaccurate reading during a daily iodine chlorine test that may have caused a strong odor of iodine. In support of the findings, Mary Lou Antinozzi, Director of Hotel Services, submitted an affidavit stating that "the manner in which Bally's maintains the machine contradicts the allegations raised by complainant (employees) in this matter." (Exhibit C-1.) However, Bally's did not conduct an air sampling test at this time to determine whether the complaints were valid.

6. On numerous occasions OSHA was in contact with Bally's regarding the situation in general and air sampling in particular. (Paragraphs 4, 6-7.) on April 3, 1987, Ms. Kyner spoke with Mr. Tartaglio and suggested one way to settle the complaint was to get an air sample. (Testimony of Ms. Kyner, Tr. 129.) In a follow up letter dated April 3, 1987, Mr. Allendorf noted that Bally's investigation left the condition in open status and suggested that a way to prove no violation was by air sampling. (Testimony of Mr. Siletsky, Tr. 118; Exhibit C-2.)

7. On May 6 and 12, 1987, Roman Siletsky, an OSHA compliance officer, contacted Mr. Tartaglio regarding the situation. During the conversation of May 6th, Mr. Tartaglio said they would get a sampling firm to come in. (Testimony of Mr. Siletsky, Tr. 78.) During the conversation of May 12th, Mr. Tartaglio told Mr. Siletsky Bally's would need more time to get the results. (Testimony of Mr. Siletsky, Tr. 81.)

8. Mr. Tartaglio contacted Bally's construction consulting firm to arrange an air quality test. (Tr. 53; Testimony of Mr. Venuti, Tr. 165-166, 183.) The construction firm, in turn, contacted J.C. Anderson Associates to perform the air quality test.

9. The dishwasher was put out of service from April 20, 1987, to the day of the testing on May 4, 1987. (Testimony of Miss Quinn; Tr. 24-25; that of Ms. Kyner, Tr. 149-150.)

10. Ms. Veronica Ghetie, an employee of J.C. Anderson Associates and an agent of Bally's, conducted an air quality test on May 4 and 5, 1987. (Stipulation; Tr. 36.)

11. The steps taken in preparing for the air quality test were as follows. The dishwasher and the service bar were placed in a fully operational mode by the day of the test. Toward that end, Bill McNulty, manager of Bally's Beverage division, made sure that Ms. Quinn would be present for the entire testing period. (Testimony of Ms. Quinn, Tr. 8, 21. ) The dishwasher was serviced on the day of the test to ensure proper functioning. (Testimony of Ms. Quinn, Tr. 18, 23; that of Mr. Page, Tr. 32 ;that of Mr. Mulgrew, Tr. 69.) The test was conducted on a regular work day for Ms. Quinn. (Testimony of Mr. Tartaglio, Tr. 202.) Other employees such as cocktail waitresses and the bar porter worked in and around the area as usual throughout the test. (Testimony of Ms. Quinn, Tr. 17.)

12. Ms. Ghetie utilized a "black box" in conducting the air quality test. Apparently, the box was to be worn by the bartender during the examination to ensure that the breathing space of the employees was being monitored. Casino service bar #2 was about five feet long by four feet in width. (Testimony of Ms. Quinn, Tr. 11-12.) Although Ms. Quinn was supposed to wear the black box during the actual testing, due to the limited space it was placed on the bar. It is inferred that Ms. Quinn's inability to wear the box did not adversely affect the results, given the confined area of the bar.

13. In sum, the air quality test was conducted during the course of a normal workday and under normal work conditions. Adequate safeguards were taken to ensure an accurate test result by Bally's management, Ms. Ghetie, and employees. The exposure tested on May 4 and 5, 1987, was typical of that received previously while the dishwasher was in service. The evidence demonstrates that the air quality test constitutes a record containing relevant information regarding employee exposure to toxic substances. Thus, the air quality test constituted an exposure record. (Testimony of Ms. Kyner, Tr. 141.)

14. On the day of the test, Mr. Page, an employee business representative, went to the service bar. Mr. Page asked Mr. Tartaglio for a copy of the test results and he denied the request. (Tr. 200.) On May 29, 1987, Bally's denied OSHA the test results based on the work product rule. (Testimony of Mr. Siletsky, Tr. 84-85, 122-123; that of Mr. Tartaglio, (Tr. 194-195; Exhibit J-5). Again, on June 5, 1987, Mr. Tartaglio denied Mr. Page the test results. (Testimony of Mr. Page, Tr. 39, 43.) Later, on July 23, 1987, Mr. Tartaglio denied an OSHA compliance officer the test results. (Testimony of Ms. Kyner, Tr. 136.) After Mr. Venuti received the subpoena, he informed Ms. Kyner that the test results would not be made available and that a position statement would follow. (Testimony of Mr. Venuti, Tr. 174.) Finally, on August 17, 1987, a position statement was filed wherein Bally's refused to give OSHA the test results. (Testimony of Ms. Kyner, Tr. 138-139.)

15. There are three main issues for decision in this case and one incidental issue. The main issues are: whether the air quality test is protected by the work product doctrine; whether the air quality test report constituted an exposure record under the standard; and whether the second citation, issued on January 20, 1988, was issued within the six-month period of Section 9 (c) of the Act. The incidental issue is whether the second citation was issued with "reasonable promptness."

"Work-Product" Issue

16. Bally's argues that the air quality test results are work product of an attorney in anticipation of litigation and therefore not subject to disclosure. However, for the reasons stated below, I conclude that the air quality test results do not qualify as work product and are subject to disclosure.

17. The purpose of the work product doctrine is to permit an attorney to perform his duties without unnecessary interference from opposing counsel. The doctrine seeks to protect an attorney's mental impressions, obtained or prepared by an attorney or his agent with an eye toward litigation. Hickman v. Taylor, 67 S.Ct. 385, 392 (1947).

18. Courts have recognized, however, that there are limitations on the scope of the doctrine. For example, only where a document is primarily concerned with legal assistance is it protected; technical information is otherwise discoverable. Loctite Co. v. Fel-Pro Inc. & Felt Products Mfg. Co., 667 F. 2d 577, 582 (7th Cir. Ill. 1981). Specifically, technical information, such as the results of research, tests, and experiments, given to the attorney and not requiring a legal interpretation are without protection. Union Carbide Co. v. Dow Chemical Co., 619 F. Supp. 1036, 1047 (D.C.Del. 1985).

19. Moreover, even if the work product rule were not so confined, there are other limitations on its scope. The work product rule is largely confined to pretrial discovery.  U.S. v. Nobles, 95 S. Ct. 2160, 2174 (1075) ( White, J., concurring).  Also, if it were not so limited, production night be justified if there is a substantial need to obtain the document in question.  Hickman v. Taylor, 67 S. Ct. at 394.

20. Turning to the first limitation on the scope of the doctrine, (Paragraph 18), an in carmera inspection revealed that the test was purely technical information.  Mr. Venuti also conceded that the test result as confidential materials.  Union Carbide Co., 619 F. Supp. at 1047.  As the test results in this case are factual and require no legal interpretation they are devoid of protection under the work product rule.

21. Moreover, it is irrelevant whether the primary motive in directing Ms. Ghetie to conduct the test was done with an eye towards litigation.  Access is not contingent upon motive or proposed use of the record. Cf. Johnson & Johnson Products Inc., 11 BNA OSHC 1159, 1160, (No. 81-1339, 1983.  Thus, as motive is irrelevant the results are accessible.

22. Perhaps even more persuasive, is the fact that the Secretary of Labor has addressed matters of privilege in the standard. However, these concern generally the confidentiality of employee medical records and the protection of trade secret information.[[3]] With regard to medical records there is an exclusion of records created solely In preparation for litigation which is privilege from discovery. See Section 1910.20(c)(6)(ii)(C). But, there is no comparable exclusion for exposure records.

23. Finally, in any event, the air quality test is accessible under the standard because there is a "substantial need" to obtain the results. The machine was taken out of service after the test. (Exhibit J- 4.) Thus, Bally's has effectively denied the employees and OSHA a means of obtaining the results themselves. Bally's asserts that OSHA had agreed to certain procedures in investigating the case. I agree with Bally's to the extent that certain procedures were understood by both parties. Although Bally's argues that OSHA was given ample time to conduct its own testing, the record evidence indicates that OSHA reasonably relied on Bally's to conduct the test and submit the results. (Paragraphs 4, 6-7.)

24. The record evidence indicates that OSHA was inundated with cases during the period of this inspection. For that reason, employees sought to follow the informal complaint procedure in the hopes of obtaining faster results. (Testimony of Ms. Kyner, Tr. 127.) Congress intended that employers assist the Secretary in providing a safe and healthful working environment. Yelvington, 6 BNA OSHC at 2015. Recognizing that OSHA was inundated with cases at the time of this complaint it was reasonable for OSHA to rely an Bally's to conduct the testing.

"Exposure Record" Issue

25. Bally's argues that the exposure records are in any case not accessible because they were not conducted in the "course of employment." In support of this argument, Bally's submits that the test was conducted in an experimental manner with a dishwasher which needed repairs. This argument is weak.

26. Under Section 1910.20(c)(8) "exposure" means "that an employee is subjected to a toxic substance or harmful physical agent in the course of employment . . . and includes past exposure and potential exposure." (Emphasis added.)

27. There is persuasive evidence to show that the test was conducted during the course of employment and under normal conditions. For example, the dishwasher was put back into working condition for the test; the test was conducted during the course of normal working hours and conditions; and, employees worked as usual during the testing. (Paragraphs 11-13.) As such, the sampling tested the breathing space of the employees and constitutes exposure under the standard. Hence, the test results are accessible to OSHA and employee representatives as an accurate employee exposure record of past exposure that gave rise to the employee complaints.

"Statute of Limitations" Issue

28. Bally's argues that the second citation must be vacated because it was not issued within the six-month period as required by Section 9(c) of the Act, 29 U.S.C. 658(c) This argument fails for the following reasons.

29. The failure to allow accessibility to exposure records to employee representatives and OSHA is viewed as a continuing violation. Therefore, although Bally's had early asserted the work product rule, the violation continued up to the date the position statement was submitted after the issuance of the subpoena which was issued on July 30, 1987.

30. Bally's would have the statute of limitations commence on the day the informal complaint was filed. However, the original complaint merely alleges the physical problems faced by the employees in the bar. The facts comprising the second citation arose at least until after the test results were denied in response to the subpoena and, Bally's attorneys submitted a position statement stating they would not comply with the subpoena.

"Reasonable Promptness" Issue

31. Bally's argues that the second citation was not issued with "reasonable promptness" as required by 29 U.S.C. 658(a).

Bally's has not proven that it has been prejudiced in any way. Additionally, for the same reasons that the second citation was issued within the six-month period, I find that the "reasonable promptness" defense lacks merit. (Paragraphs 28-30.)

32. The second citation issued on January 20, 1988, was within the six-month period as required by Section 9 (c) of the Act as noted above.

PENALTIES

33. The Secretary alleges that Bally's willfully committed the violations. However, Bally's has consistently and in good faith asserted the work product privilege in a situation that is novel. The assessment of the most severe class of penalty is therefore inappropriate. The violation is found to be not willful. The substantive conditions, however, giving rise to this case are serious; iodine is a very severe irritant as evidenced by the numerous complaints. (Testimony of Ms. Kyner, Tr. 142; Paragraph 3.)

34. Under 17(j) of the Act, penalty assessments are to be based on four factors; size, gravity, good faith, and history. The OSHA compliance officer correctly calculated the size, gravity and history in his assessment. (Exhibit C-5; Exhibit C-6.) Based on an evaluation of these factors as applied to the circumstances in this case, including Bally's good faith, a penalty assessment of $600 is appropriate for each of the citations.




ORDER

It is hereby ordered that:

1. The violation of 29 C.F.R. 1910.20(e)(1)(i) regarding employee representative access to employee exposure records, Citation 1, Item I is affirmed, and a penalty of $600 is assessed.

2. The violation of 29 C.F.R. 1910.20(e)(3)(i) regarding OSHA access to employee exposure records, Citation 1, Item I is affirmed, and a penalty of $600 is assessed.

3. The test results which were reviewed in camera are herewith returned to Bally's. Bally's is directed to make available a copy of the test results to OSHA and one to the employee representative.

Paul A.Tenney
Judge, OSHRC

DATED: 28 FEB 1989 Washington, D.C.


FOOTNOTES:
[[1]] Commissioner Montoya did not participate in the deliberation or issuance of this decision.

[[2]] Venuti testified that he asked for a technical report on the glass washing machine emissions after reading OSHA's March 10 letter to Bally's, which recounted numerous complaints about the machine. Venuti testified that he concluded from the letter that Bally's probably would be subject to claims about the machine from employees and OSHA. He testified that he told Richard Tartaglio, a lawyer who was Bally's Labor Relations Manager, to find a prospective expert witness who could prepare a report. Tartaglio testified that he arranged for the hiring of J.C. Anderson Associates through Bally's construction consultants, Coastal Management. Veronica Ghetie of Anderson did the iodine testing.

[[3]] At the time of the investigation and citation, that provision stated:
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.

[[4]] At the time of the investigation and citation, that provision stated, in pertinent part:
(3) OSHA access, (i) Each employer shall, upon request, assure the immediate access of representatives of the Assistant Secretary of Labor for Occupational Safety and Health to employee exposure and medical records and to analyses using exposure or medical records ....

[[5]] The current Commission Rules of Procedure govern these cases, because the citations were issued after their effective date of December 8, 1986. Rules of Procedure. Final Rule, 51 Fed. Reg. 32,002 (1986). Neither party argues that those Rules affect the applicability of the work product doctrine in Commission proceedings, and we hold that they do not.

[[6]] The judge noted that in an earlier decision by the U. S. Supreme Court, Justice White, concurring, gave the opinion that the work product doctrine should be largely confined "to its role as a limitation on pretrial discovery[,]" United States v. Nobles, 422 U. S. 225,247 (1975) He urged that generally, the work product rule does not limit a court's authority to order production of evidence at trial. Id. at 250- 54. Justice Rehnquist (now Chief Justice) joined in that concurrence. However, Justice Rehnquist wrote the Court's subsequent opinion in Upjohn, and Justice White joined in that opinion. There is no issue here about production of the records at trial or hearing. Also, the majority in Nobles stated:
[T]he concerns reflected in the work-product doctrine do not disappear once trial has begun. Disclosure of an attorney's efforts at trial, as surely as disclosure during pretrial discovery, could disrupt the orderly development and presentation of his case.
Id. at 239 (dicta).

[[7]] The judge cited certain patent cases as support for the proposition that factual portions of Bally's report were unprotected. Loctite Co.v. Fel-Pro Inc., 667 F.2d 577 (7th Cir. 1981); Union Carbide Co. v. Dow Chem. Co., 619 F.Supp. 1036 (D. Del. 1985). However, the reasons for compelling disclosure in those cases do not apply here.
Union Carbide involved a request by the defendant in a patent infringement suit for access to information that is required to be disclosed to the government as part of a patent application.
..In patent cases, work-product immunity is not "extended to preparations for ex parte proceedings such as patent proceedings," Choat v. Rome Industries, Inc., 462 F.Supp. [728] at 732 [(N.D.Ga. 1978)] ; Hercules v. Exxon Corp., 434 F.Supp. 136, 152 (D.Del. 1977).
Bulk Lift Intl., Inc. v. Flexcon & Sys., Inc., 122 F.R.D. 482, 491 (W.D. La. 1988), (quoting Detection Sys., Inc. v. Pittway Corp., 96 F.R.D. 152, 155 (W.D.N.Y. 1982). In fact, patent applicants have a legal duty to disclose to the U. S. Patent and Trademark Office all facts relating to the equities of granting the application. E.g., Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 818 (1945). See 35 U.S.C. 112 (patent applications must include "full, clear, concise, and exact" written description of invention, and of manner and process of making it). See generally, 60 Am Jur 2d Patents, 999, 1002. Thus, in Union Carbide, the court ruled that documents sought were not confidential because they were prepared for the patent application, and not "in anticipation of litigation." 619 F.Supp. at 1046-47, 1050-51.
In Loctite, the court dismissed a patent infringement suit because the plaintiff failed to establish that a justifiable controversy existed. The plaintiff refused to disclose the basic technical information on which it based its claim, on the ground that the information was work product of its attorney. The court held that the work product doctrine does not totally shield a litigant from the requirement that it specify the patent infringement charges. 667 F.2d at 579, 582. Of course, Rule 26(b)(3) only protects specific "documents and tangible things." Disclosure of the underlying facts may be pursued by other means. The court in Loctite also stated:
Only where the document is primarily concerned with legal assistance does
it come within these privileges [attorney-client and attorney work product]; technical information is otherwise discoverable.
Id. at 592. Similarly, it is undisputed here that the records of Bally's consultant were "primarily concerned" with legal assistance. Id.

[[8]] The term "record" is defined at section 1910.20(c)(10) as follows:
"Record" means any item, collection, or grouping of information regardless of the form or process by which it is maintained (e.g., paper document, microfiche, microfilm, X-ray film, or automated data processing).
That definition is unchanged from the one in effect at the time of the citations, which was found at section 1910.20(c)(9).

[[9]] That rule provides:
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Bally's expert was not called as a witness and was not expected to be called. (Indeed, the underlying facts are not the subject of the citations. Only Bally's failure to turn over records is at issue.) Fed. R. Civ. P. 35(b) has no relevance here, because it applies only to physical and mental examination of persons. Thus, the underlying facts known to the expert would be subject to the same qualified work product protection as the records.

[[10]] Section 8(c)(1) gives the Secretary authority to require employers to "make, keep and preserve, and make available to the Secretary" such records as she:
... in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.
However, that section has no language authorizing abrogation of work product principles. Section 8(c)(3) does not even address the type of records involved here. It requires the Secretary to provide for employee access only to "records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 6 [29 U.S.C. 655]. (Emphasis added.) Section 1910.1000, under which employee exposure to iodine is regulated, does not require monitoring or measuring per se OSHA's industrial hygienist testified to the same effect.

[[11]] The only understanding with OSHA that BaIly's has acknowledged concerns a different matter which arose later. The understanding concerned how Bally's would respond to OSHA's subpoena. It was agreed that a position statement by Bally's would be an acceptable form.

 

[[1]] 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.

[[2]] 1910.20 Access to employee exposure and medical records.
(e) Access to records. (3) OSHA access. (i) Each employer shall, upon request, assure the immediate access of representatives of the Assistant Secretary of Labor for Occupational Safety and Health to employee exposure and medical records and to analyses using exposure or medical records.

[[3]] 1910.20 Access to employee exposure and medical records.
(a) Purpose. . . . Except as expressly provided, nothing in this section is intended to affect existing legal and ethical obligations concerning the maintenance and confidentiality of employee medical information, the duty to disclose information to a patient/employee or any other aspect of the medical care relationship, or affect existing legal obligations concerning the protection of trade secret information.