SECRETARY OF LABOR,
THERMAL REDUCTION CORPORATION,
OSHRC Docket No. 81-2135
Before: BUCKLEY, Chairman, and CLEARY, Commissioner.
This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), 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. 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 in this case is a single alleged willful violation of the Secretary's recordkeeping regulation at 29 C.F.R. § 1904.7, which requires in pertinent part that "[e]ach 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...." The alleged violation resulted from an inspection conducted pursuant to a warrant which was based on a complaint by a former employee that unsafe and unhealthful conditions existed in a facility of Thermal Reduction Corporation ("Thermal"). The warrant authorized the Secretary to inspect the worksite to determine whether Thermal was in compliance with the Act with regard to the conditions charged in the complaint. The warrant also authorized the inspection and copying of "injury and illnesses [sic] records required to be maintained by 29 C.F.R. § 1904." This case concerns the records prescribed by 29 C.F.R. § 1904.2, which requires that an employer maintain a log and summary of recordable occupational injuries and illnesses on form OSHA No. 200 or its equivalent.
The parties stipulated that on two separate occasions, June 1 and June 2, 1981, Nicholas Schorsch, Thermal's vice-president, refused to produce Thermal's OSHA Form 200 at the request of Sullivan, the Secretary's compliance officer. Schorsch refused Sullivan's request because Sullivan would not sign a "Statement of Intent" prepared by Schorsch which read as follows: "No information Nicholas Schorsch, of the Thermal Reduction Corporation, divulges will be used against the Thermal Reduction Corporation, or any of its divisions, at this or any time." The stipulation states that Schorsch indicated he had read the warrant and was familiar with its provisions. The warrant application and supporting documentation were incorporated by the stipulation. No evidentiary hearing was held.
Based on the stipulation, Administrative Law Judge Paul A. Tenney found Thermal in willful violation as alleged. The judge rejected Thermal's contention that the provision of the warrant allowing the Secretary access to records kept by Thermal was invalid because it was not supported by a showing of probable cause[] and because the Act does not permit the Secretary to examine any employer records during a physical inspection. The judge also concluded, contrary to Thermal's arguments, that in order to prove a violation of 29 C.F.R. § 1904.7 the Secretary does not have to establish either that employees are endangered by the employer's failure to disclose records or that recordable injuries or illnesses have occurred in the employer's facility. For the reasons stated in our separate opinions, Chairman Buckley and I affirm Judge Tenney's decision.[]
The parties do not dispute that section 8 of the Act, 29 U.S.C. § 657, imposes specific recordkeeping responsibilities on employers. Thus, section 8(c)(1) requires that each employer prepare and make available to the Secretary those records "regarding his activities relating to this Act" which the Secretary "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." Section 8(c)(2) imposes a mandatory duty on the Secretary to 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 treatments that do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job." At section 8(g)(2) of the Act Congress empowered the Secretary to "prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this Act, including rules and regulations dealing with the inspection of an employer's establishment." Pursuant to the authority conferred by section 8 the Secretary promulgated §§ 1904.2 and 1904.5, requiring the maintenance of the log and summary at issue in this case, as well as § 1904.4, requiring the employer to make supplementary records of each occupational injury or illness. In addition to § 1904.7, the disclosure regulation cited here, the Secretary also promulgated a regulation at 29 C.F.R. § 1903.3, which expressly authorizes inspectors during an inspection "to review records required by the Act and regulations published in this chapter. . . ."
The Act states that its purpose is to develop safe and healthful working conditions in part "by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem." Section 2(b)(12). The legislative history of section 8 clearly indicates Congress's recognition that a comprehensive system of recording and reporting occupational injuries and illnesses is essential to achieving the purposes of the Act and insuring employer compliance with its requirements. The Senate committee stated that "[f]ull and accurate information is a fundamental precondition for meaningful administration of an occupational safety and health program." S. Rep. No. 91-1282, 91st Cong., 2d Sess. 16 (1970), reprinted in Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 156 (Comm. Print 1971). According to the conference committee, recordkeeping is required "to insure compliance" as well as for the collection of research information. H.R. Rep. No. 91-1765, 91st Cong., 2d Sess. 36 (Comm. Print 1971, at 1189). As the Secretary stated at 29 C.F.R. § 1904.1, entitled "Purpose and scope":
These sections provide for recordkeeping and reporting by employers covered under the act as necessary or appropriate for enforcement of the act, for developing information regarding the causes and prevention of occupational accidents and illnesses, and for maintaining a program of collection, compilation and analysis of occupational safety and health statistics . . .[]
There is no basis on which to conclude, and Thermal does not contend, that the obligations imposed on employers by section 8(c) do not reasonably implement the purposes of the legislation or that Congress could not reasonably determine that these requirements would accomplish its goals. Similarly, it is well settled that regulations issued pursuant to an agency's authority to promulgate rules necessary for the implementation of a statute will be upheld so long as they are reasonably related to achieving the purposes of the legislation. Mourning v. Family Publications, Inc., 411 U.S. 356 (1973); Gemsco v. Walling, 324 U.S. 244 (1945). The Secretary's promulgation of Part 1904 requiring that the employer maintain injury and illness records and produce such records for examination during a physical inspection reasonably effectuates Congress's requirement that employers maintain and make available to the Secretary records pertaining to the incidence of injuries and illnesses in the workplace. Accordingly, the examination of these records during an inspection is consistent with the Act.[]
The warrant allowing the Secretary access to Thermal's records required under
Part 1904 is valid for similar reasons. In Marshall v. Barlow's Inc.,
436 U.S. 307, 321 (1978), the Supreme Court concluded that probable cause for issuance of
an inspection warrant under the Act could be based on "reasonable legislative or
administrative standards," and that any general plan for enforcement of the Act
derived from "neutral sources" would suffice. The maintenance of employee
injury and illness records required by regulations pursuant to section 8(c) and the
disclosure of such records to the Secretary constitutes a reasonable legislative and
administrative plan for the enforcement of the Act within the meaning of the Barlow's
decision. And since all employers must maintain and provide the same information,
these requirements are neutral in their application, as further required under Barlow's.
Since the requirements of Barlow's have been satisfied, there was probable
cause for the provision of the warrant allowing the Secretary to examine those records
required to be kept under Part 1904.5 See Donovan v. Enterprise Foundry,
Inc., No. 84-1329 (1st Cir. Dec. 20, 1984).
Thermal contends, nevertheless, that it is not in violation of the disclosure regulation cited in this case. Thermal argues that the Commission cannot affirm a citation for failure to produce injury and illness records at the request of the Secretary absent proof by the Secretary that its employees are endangered by the failure to disclose, and absent proof that recordable injuries or illnesses had in fact occurred at its workplace. Thermal further argues that it cannot be found in violation of 29 C.F.R. § 1904.7 because the warrant on which the inspection was based allows the Secretary only to examine the Part 1904 records and does not require Thermal affirmatively to produce such records.[] Thermal also contends that to require it to assist in the Secretary's examination of its records would violate the privilege against self-incrimination.
Judge Tenney concluded that exposure to a hazard is not an element of proof of the disclosure regulation but that an employer can defend against an alleged violation of that regulation by affirmatively proving that it has not experienced any recordable injuries or illnesses. Since the stipulation in this case does not demonstrate an absence of injuries or illnesses, the judge found a violation. The judge also concluded that the privilege against self-incrimination does not protect against the disclosure of corporate as opposed to personal records, but did not expressly rule on Thermal's other contention that requiring production would in any event be contrary to the precise wording of the warrant.
The judge correctly held that a requirement that the Secretary demonstrate exposure of employees to a hazard is not appropriate in cases dealing with recordkeeping regulations. Under section 3(8) of the Act, substantive standards must be "reasonably necessary or appropriate to provide safe and healthful employment . . . ." Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980); Pratt & Whitney Aircraft, Division of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96 (2d Cir. 1981). Recordkeeping regulations, however, are not intended to eliminate an existing and identified hazard in a particular workplace. Rather, as previously indicated, they are promulgated pursuant to a different section of the Act, section 8, which mandates that the Secretary prescribe recordkeeping and reporting requirements for work-related injuries and illnesses and authorizes the Secretary to make other provisions as the Secretary deems necessary for the implementation of the Act. See Louisiana Chemical Association v. Bingham, 657 F.2d 777, 782 (5th Cir. 1981), in which the court differentiated standards from regulations according to whether the rule "reasonably purports to correct a particular 'significant risk' or instead is merely an enforcement or detection procedure to further the goals of the Act generally." Cf. General Motors Corp., Inland Division, 80 OSAHRC 85/A2, 8 BNA OSHC 2036, 1980 CCH OSHD ¶ 24,743 (No.76-5033, 1980) (recordkeeping requirements of the Act cannot be considered de minimis in nature, that is, trifling or insignificant, in view of the importance of these requirements in providing information to be used in improving the safety and healthfulness of workplaces).
Judge Tenney's conclusion that an employer should be permitted to defend against an alleged violation of 29 C.F.R. § 1904.7 by showing an absence of recordable injuries or illnesses is based on the regulation's silence as to the employer's duty in such circumstances as well as on the Commission's prior decision in Jack Shelton Painting Co., 74 OSAHRC 72/A14, 2 BNA OSHC 1264, 1974-75 CCH OSHD ¶ 18,829 (No. 1111, 1974). In that case a judge vacated a citation for violation of 29 C.F.R. § 1904.4 regarding supplementary injury and illness records. The judge ruled, and the Commission agreed, that there could not have been a violation of this regulation since no employee at the establishment involved had ever had an occupational injury or illness.
Shelton, however, is distinguishable. Subsequent to that decision, but prior to the issuance of the citation here, the Secretary amended 29 C.F.R. § 1904.5, which prescribes instructions for completing the annual summary portion of the Form 200. 42 Fed. Reg. 65165 (1977). As amended, § 1904.5 specifically requires an employer to make entries on the Form 200 even in the absence of recordable injuries or illnesses: "If no injuries or illnesses occurred in the year, zeros must be entered on the totals line, and the form must be posted." Since § 1904.7 requires the disclosure of the Form 200, we conclude that the Secretary does not have to establish the existence of recordable injuries or illnesses as a precondition to examining Thermal's records under § 1904.7 and that Thermal may not defend against an alleged violation of that section by demonstrating that it has not experienced any injuries or illnesses.
Contrary to Thermal's contention, it may be found in violation of § 1904.7 despite the fact that the warrant does not expressly require Thermal to produce its injury and illness records for the Secretary's examination. The warrant allows the Secretary access to these records consistent with the Fourth Amendment,[] while § 1904.7 is an appropriate exercise of the Secretary's statutory authority to determine the manner by which he will examine such records. The warrant also does not by its plain wording preclude the Secretary from requiring Thermal to produce the appropriate records for the Secretary's examination.
As Judge Tenney correctly observed, the privilege against self-incrimination does not extend to the disclosure of corporate as opposed to individual records, nor may a corporate officer or custodian of corporate records refuse to produce corporate records on the ground that such records will incriminate either the corporation or the individual. Curcio v. United States, 354 U.S. 118 (1957); United States v. White, 322 U.S. 694 (1944); Wilson v. United States, 221 U.S. 361 (1911); Gemsco v. Walling, supra. This rule is particularly applicable with respect to records required to be kept by law. Wilson, supra, 221 U.S. at 380. See Shapiro v. United States, 335 U.S. 1 (1948). Accordingly, Thermal cannot claim a privilege against self-incrimination in the circumstances presented here.[]
Assuming that the judge did not err in concluding that a privilege against self-incrimination could not be claimed in the circumstances presented here and did not err in rejecting Thermal's other contentions regarding the existence of a violation, Thermal claims nevertheless that it did not commit a willful violation. Thermal argues that its failure to disclose the Form 200 is not willful in nature because the record does not show that Schorsch was aware that self-incrimination was not a valid ground for refusal to produce corporate records. Although before the judge Thermal characterized Schorsch as requesting an assurance against self-incrimination, Thermal now contends before us that the Secretary also made no attempt to determine specifically what Schorsch was seeking, such as a nondisclosure agreement, a release from civil liability, or Fifth Amendment protection. Lastly, Thermal points out that the stipulation does not show that Schorsch was actually aware that production of the Form 200 was required under the Act, but that even if Schorsch had indicated such an awareness, he simply would have been mistaken as to the requirements of the law in view of cases holding that records do not have to be produced during the physical inspection.
To establish that a violation is willful, the Secretary must show that it was committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety. Asbestos Textile Co., Inc., 84 OSAHRC __/__, 12 BNA OSHC 1062, 1984 CCH OSHD ¶ 27,101 (No. 79-3831, 1984). In this case, Schorsch refused to disclose the Form 200 because the inspector would not sign a statement purporting to protect Thermal from liability. Since the case law is well settled that a corporation cannot claim the right against self-incrimination as to the production of corporate records required by law, Schorsch could not reasonably have believed that he had a right to refuse to produce the OSHA Form 200 on this basis. See Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC 1460, 1478-79, 1981 CCH OSHD ¶ 25,300 at p. 31,351 (No. 13102, 1981). In addition, the stipulation states that Schorsch refused to answer questions asked of him by the inspector, Sullivan. Therefore, there is no merit to Thermal's further argument that the violation cannot be found willful because the Secretary failed to make an additional inquiry to determine specifically what sort of protection Schorsch was seeking.
The Secretary presented a warrant which expressly allowed the Secretary access to the OSHA Form 200. Furthermore, contrary to Thermal's argument, the record demonstrates that Schorsch was aware that he was required by law to produce the OSHA log at the Secretary's request, [] and the instructions to the form itself state that it must be available for inspection and copying. Finally, there is no case law establishing that records such as the Form 200 cannot be examined during an inspection. Accordingly, the violation is willful in nature as alleged. Thermal consciously refused to comply with the Act and the disclosure regulation in issue even though it was fully aware of its obligation to disclose its Form 200 at the Secretary's request and had no reasonable justification for not doing so. See Coleman v. Jiffy June Farms Inc., 458 F.2d 1139 (5th Cir. 1971), cert. denied, 409 U.S. 948 (1972).
The judge assessed the proposed penalty of $1000 primarily on the basis of the willful character of the violation. In the circumstances, the assessment is appropriate.
The judge's decision is therefore affirmed.
FOR THE COMMISSION
Ray H. Darling, Jr.
DATED: APR 17 1985
BUCKLEY, Chairman, concurring:
When the issues in this case are succinctly stated, the case is much less complex than the parties have made it.[[10/]] The cited regulation requires Respondent to provide to the Secretary upon request certain records required to be maintained by regulation. 29 C.F.R. § 1904.7 ("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 . . . .") Respondent has not challenged the authority of the Secretary or Congress to require that these records be maintained and it is uncontroverted that the requested records fall within the category of records required to be maintained. Respondent has admitted that it did not comply with the Secretary's request for such records. A violation is therefore established unless there is some reason why Respondent was not legally required to provide these records to the Secretary. I find no legal impediment to the Secretary's request and no legal excuse for the Respondent's failure to provide the records for examination.
Respondent first asserts that the Secretary cannot obtain these records without a subpoena and that he is not authorized to examine them during a physical inspection of the worksite. I disagree with both contentions. Thermal's argument that the Secretary cannot obtain the records without a subpoena is premised on the assertions that section 8(a) of the Act does not authorize the inspection of records during a physical inspection of the workplace, and that the statutory authority for the Secretary to inspect documentary evidence found in section 8(b) of the Act requires the Secretary to obtain a subpoena. Whether these assertions have merit is irrelevant because the request for records made by the Secretary in this case was authorized by a different section of the Act not subject to the restrictions Respondent cites sections 8(a) and (b).
The standards at 29 C.F.R. §§ 1904.2, 1904.4, and 1904.7, which require employers to maintain certain records and provide the records to the Secretary for inspection and copying, were promulgated under the statutory mandate in section 8(c) of the Act. Section 8(c) requires each employer to maintain and provide to the Secretary certain records regarding the employer's activities related to the Act, including injury and illness records. The statute also authorizes the Secretary to promulgate regulations necessary or appropriate for enforcement of this statutory authority. The standard at 29 C.F.R. § 1904.7 is authorized by, and subject to the limits of, section 8(c) of the Act. I find nothing in either section 8(a) or 8(b) that limits the statutory requirement in section 8(c) that the employer keep these records and make them available to the Secretary upon request. The standard at 29 C.F.R. § 1904.7 was properly promulgated under the authority of section 8(c) and the Secretary is not limited by the language of sections 8(a) and 8(b). See Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 7-8 (1st Cir. 1982). Nor does section 8(c) require the Secretary to obtain a subpoena to examine records or preclude examination in the course of a plant inspection.
Respondent has not challenged the Secretary's authority under section 8(c) to issue 29 C.F.R. § 1904.7. The only challenge to that authority would be that section 8(c) is unconstitutional to the extent that it may permit the "search" of an employer's record without a search warrant. Because there was a warrant obtained in this case, that argument clearly does not apply here. The records sought by the Secretary here are strictly limited to records required by section 8(c) and regulations promulgated pursuant to that section. It is unnecessary to decide here the questions of whether a warrant is required for the Secretary to obtain records under section 8(c) or whether Thermal's arguments would be correct for records not required to be kept by authority of section 8(c).
Respondent also asserts that the evidence should be suppressed because there was insufficient probable cause for the magistrate to issue a broad-based warrant, and because the inspection went beyond the limits permitted by the warrant. There was an independent determination made by a United States magistrate that there was probable cause to issue the warrant. The Commission and its administrative law judges have no authority to review such a determination by a judicial officer of a court created under Article III of the United States Constitution. See Brooks Woolen Co., Nos. 79-45 and 79-158, slip op. at 3-4 (April 10, 1985) (view of Chairman Buckley); Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC ____, 12 BNA OSHC 1082, 1083, 1984-85 CCH OSHD ¶ 27,091, pp. 34,929-30 (No. 80-471, 1984) (lead opinion). Accepting and ruling on Respondent's argument that probable cause did not exist to support a broad-based warrant would require the Commission to sit as an appellate review body in judgment on the decision of an Article III court. The Commission cannot do this and must accept the Court's decision to issue the warrant. Id.
The Commission and it's judges can, as overseer of the administration of the Act, examine the conduct of OSHA's officials in obtaining and executing the warrant. A finding that OSHA misled the magistrate in its application for the warrant or exceeded the scope of the warrant might justify the suppression of evidence thus improperly obtained. Such an inquiry is not a review of the magistrate's determination of probable cause. Suppressing evidence that has been improperly obtained is appropriate where the effect would be to deter improper conduct by officials charged with enforcing the law. Here there is no allegation and no evidence to support the argument that any OSHA official acted improperly in seeking or obtaining the warrant. The warrant that issued clearly provided for the inspection of records required to be maintained under section 8(c) of the Act. In seeking to examine such records, the compliance officer obviously did not exceed the limits of the warrant. [[11/]]
I also agree that the violation was willful. Respondent initially requested a warrant before an inspection would be allowed. The Secretary obtained a warrant authorizing inspection of the documents. Notwithstanding the regulations requiring disclosure and the warrant authorizing an examination of the records, Respondent refused to provide the records unless the Secretary would sign a document absolving the company of any liability concerning any matter that would arise as a result of information disclosed. The Respondent acted willfully in refusing to comply with the standard unless it could be given such an assurance. See Asbestos Textile Co., 84 OSAHRC ___,12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ¶ 27,101, p. 34,948 (No. 70-3831, 1984) (a violation is willful if committed with intentional or knowing disregard for the requirements of the Act). I concur in affirming the citation for a willful violation of 29 C.F.R. § 1904.7.
[] Thermal contends that the warrant in its entirety was not supported by probable cause and was overbroad. I find it unnecessary to consider Thermal's objections to the validity of any portion of the warrant other than the recordkeeping provision. Since Thermal was not cited for any violation other than that related to recordkeeping, there is no evidence arising from the remaining portion of the warrant to be suppressed even in the event I were to conclude that other provisions of the warrant were defective. And since the records access provision is a separate and distinct clause within the warrant, it is severable from the remainder of the warrant. Therefore, any defects in the remaining portions of the warrant would not justify invalidating the warrant in its entirety. See Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 8 (1st Cir. 1982); United States v. Christine, 687 F.2d 749, 758 (3d Cir. 1982).
[] The judge also rejected Thermal's contentions on several grounds that the pleadings were insufficient to afford it fair notice of the charges against it. The judge properly disposed of these contentions for the reasons he stated. In addition, contrary to Thermal's contention that it lacked notice that the regulation at 29 C.F.R. § 1904.7 was in issue, Thermal's interrogatories to the Secretary referred to Thermal's "alleged noncompliance with the requirements of ..... regulations stated in the citation."
[] The Secretary also referred to his authority under section 24 of the Act, which deals with statistical programs covering all employments not expressly excluded from the Act.
[] Thermal points out that section 8(a) of the Act, which confers on the
Secretary the authority to make inspections, does not expressly include records within the
permissible scope of an inspection. Accordingly, Thermal contends that the only
means by which the Secretary may examine records is through a subpoena issued under
section 8(b), which empowers the Secretary to "require the attendance and testimony
of witnesses and the production of evidence under oath."
The cases Thermal cites in support of this proposition are inapposite because they do not involve records of the type required to be maintained and made available under Part 1904. Thus, in In re Establishment Inspection of Inland Steel Co., 492 F. Supp. 1310 (N.D. Ind. 1980), the warrant application included a request to examine employee medical and personnel records. In Erie Bottling Corp., 539 F. Supp. 600 (D.C. Pa. 1982), the court in dictum stated that injury and illness records required under the Secretary's regulations should be made available during an inspection; it noted, however, that the employer had agreed to allow the Secretary access to those records. The court in In re Establishment Inspection of Kulp Foundry, Inc., 691 F.2d 1125, 1132 n.18 (3d Cir. 1982), specifically stated that it was not deciding the question of whether a subpoena is necessary to reach those records that an employer is required to make available under section 8(c). On the other hand, the one court which has specifically considered that issue has held that a subpoena is not the exclusive means of access to an employer's OSHA Form 200. Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (1st Cir. 1982). In that case the court noted that an employer would have less privacy interest in a document it is required by statute or regulation to maintain than in a document it produces and maintains on its own initiative and for its own purposes. See also In re Establishment Inspection of Metal Bank of America, Inc., 516 F. Supp. 674 (E.D. Pa. 1981) (examination during a physical inspection of records required by regulations under section 8(c) is not inconsistent with section 8(b)).
[] Thermal also contends that the warrant's authorization for inspection of records did not limit the time period to which it related and contained no "guidelines" to circumscribe the inspector's discretion. Contrary to Thermal's contention, however, a specific time period is provided by 29 C.F.R. § 1904.6, which requires that the employer maintain injury and illness records, including the Form 200, for five years. Since the regulations in Part 1904 specifically identify and describe in some detail the injury and illness records required, the reference in the warrant to records maintained under Part 1904 affords sufficient guidance to the inspector.
Thermal points out that the warrant also authorizes inspection of "employee medical and exposure records required to be maintained by 29 C.F.R. § 1910.20." The latter is the Secretary's regulation governing access to records prepared by an employer relating to employee exposure to toxic substances or harmful physical agents. Thermal asserts that the records required by the "cited OSHA regulations" are more extensive than those required to be made available under section 8(c) of the Act. Although not clearly stated, Thermal's argument appears to be that the records required under section 1910.20 exceed those contemplated by section 8 of the Act. The merits of this contention need not be considered because there is no indication that the Secretary ever sought Thermal's employee exposure or medical records or even that Thermal has any such records. Assuming that Thermal is arguing that the records required under Part 1904 also go beyond the scope of section 8, its argument is frivolous because the records prescribed by Part 1904 are clearly consistent with section 8.
As a related matter, Thermal contends that the records access provision of the warrant is of no force and effect whatever because it conflicts with another provision setting forth the scope of the warrant. The judge properly rejected this argument for the reasons he stated.
[] Thermal also claims that 29 C.F.R. § 1904.7 only requires that records
be made available and not that the employer physically produce them. The regulation,
however, specifically states that the employer must provide the prescribed records on
[] It is unnecessary to rule on the Secretary's further contention that a warrant itself is not required because an employer can have no reasonable expectation of privacy with respect to records it has to maintain under the Act.
[] The custodian of records, however, may not be required to provide personally incriminating information regarding such records. Curcio v. United States, 354 U.S. 118 (1957). With one exception, Thermal does not claim that there is any possibility of personal incrimination of Schorsch. Before the judge, Thermal referred to section 17(g) of the Act, which imposes criminal liability on any person who knowingly makes a false statement, representation, or certification in any record required under the Act. This liability, however, attaches not to the disclosure of records but to their contents. Based on the record before us it would be purely speculative to conclude that Thermal's OSHA Form 200 contains information which could be incriminating under section 17(g).
[] The stipulation incorporates the Secretary's answers to Thermal's interrogatories, in which the Secretary avers that Schorsch had said he was aware of the regulation requiring the Form 200 to be disclosed upon request and was aware that a citation could be issued for nonproduction.
[[10/]] I agree with Commissioner Cleary's rejection of Thermal's contentions
that it did not have fair notice of the allegations against it and that production of
records required to be kept under 29 C.F.R. Part 1904 violates its privilege against
self-incrimination. I also agree with Commissioner Cleary's rejection of Thermal's
assertion that the Secretary must prove that Thermal's employees have been exposed to a
hazard before Thermal can be required to produce its Form 200, and I agree that Thermal
must maintain and disclose the form even if the number of injuries or illnesses is
recorded as zero. Finally, I agree with Commissioner Cleary that it is unnecessary
to reach Thermal's argument that the records required under 29 C.F.R. § 1910.20 exceed
the scope of section 8 of the Act, since there is no evidence that the Secretary here
sought any records required by that standard.
[[11/]] The only issue before us is a challenge to the citation issued to Respondent for failing to provide section 8(c) records on request. Whether other aspects of the warrant were exceeded is not before us.