OSHRC Docket No. 84-0785

SECRETARY OF LABOR,

Complainant.

v.

WYMAN-GORDON COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,

LOCAL 2285,

Authorized Employee

Representative.

DECISION

Before: FOULKE, Chairman

WISEMAN and MONTOYA, Commissioners.

By THE COMMISSION:

This case involves regulations at 29 C.F.R. 1910.20 (e) (2) that require employers to provide employees and their designated representatives, upon their request, with access to relevant employee exposure and medical records, and related analyses.

I. Background

Wyman-Gordon Company ("Wyman") is a Massachusetts corporation that manufactures aircraft parts. At Wyman's plant in Worcester, Massachusetts, Miklos Hadis and William Emco worked primarily in the Forge Department and the Die Shop, respectively, from the early 1950's until each retired in 1979. Both men died in July 1980. Their widows, who are the legal representatives of their late husbands' estates, gave written authorization to the law firm of Kehoe, Doyle, Playter, & Novick ("Kehoe") to exercise the rights of access to employee records and analyses, which they claim are theirs under the records access regulations at 29 C.F.R. 11910.20, and thereby to act as their "designated representative" within the meaning of 29 C.F.R. 1910.20(c)(3) and (4), discussed below.

Kehoe sent written requests to Wyman for exposure and medical records concerning Hadis and Emco, as well as for analyses using exposure and medical records. Wyman denied Kehoe's requests on various grounds, which are discussed later in this decision.

In response to a written complaint filed by Kehoe, a compliance officer from the Occupational Safety and Health Administration ("OSHA") conducted an investigation at Wyman's office. The compliance officer did not ask to see the records and analyses during the investigation. Instead, he asked that Wyman give the designated representative Kehoe access to the records. Wyman refused.

OSHA then issued to Wyman one citation consisting of three items, as amended by the complaint, alleging other-than-serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651.678 ("the Act") based on Wyman's failure to provide Kehoe with access to the requested records and analyses. No penalty was proposed. Item 1 charged that Wyman violated 29 C.F.R. 1910.20(e)(2)(i). which provided [[1]] as follows:

1910.20 Access to employee exposure and medical records.

(e) Access to records--

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

Item 2 asserted that Wyman failed to comply with 29 C.F.R. 1910.20(e)(2)(ii)(B), which states:

(ii) Employee medical records.

(B) Each employer shall, upon request, assure the access of each designated representative to the employee medical records of any employee who has given the designated representative specific written consent....

Item 3 alleged that Wyman was in violation of 29 C.F.R. 1910.20(e)(2)(iii)(A), which provides:
(iii) Analysis using exposure or medical records. (A) Each employer shall, upon request, assure the access of each employee and designated representative to each analysis using exposure or medical records concerning the employee's working conditions or workplace.

After contesting these alleged violations, Wyman sought, through its motion to sever, an initial hearing and deposition on several preliminary issues concerning the validity of all the citation items, thereby possibly rendering unnecessary any consideration of the issues on the merits of the individual items. At a prehearing conference conducted by former Commission Administrative Law Judge David J. Knight, Wyman agreed to withdraw that motion and to permit OSHA to conduct a discovery inspection of Wyman's records to identify those records that, according to the Secretary, Wyman would be required to make available to Kehoe if Wyman's arguments on the general issues, as well as its defenses on the merits, were to fail. The judge issued a discovery inspection order that required OSHA to maintain the confidentiality of the records.

Following the discovery inspection, a second prehearing conference was held at which Wyman and the Secretary[[2]] agreed on which specific documents were at issue and designated them as "Exhibits." To maintain the confidentiality of these documents, they further agreed that the "Exhibits" would not become part of the record. Copies of the "Exhibits" were provided to the judge for his convenience, and, in accordance with the parties' agreement, they were not admitted into evidence at the hearing.

In his decision, issued on February 13, 1987, Judge Knight vacated the entire citation on the basis of his conclusion that OSHA's investigation was inadequate under the Act. However, he did make alternative findings on the other issues in the case, including the merits of the alleged violations.[[3]]

Subsequent to the filing of petitions for review by the Secretary and Wyman, this case was directed for review on a number of issues concerning: the entire citation; item 1 in particular and item 3 in particular[[4]]. The Commission held oral argument in this case April 11, 1991.

II. Issues Concerning Entire Citation

We first address the following issues that concern all three items in the citation: (A) whether the judge erred in concluding that the cited regulations grant rights of access to the legal representatives of employees who died prior to the effective date of the regulations, (B) whether the judge erred in raising sua sponte, or on his own, the issue of whether the inspection was insufficient under the Act; and (C) whether the judge erred determining that the cited regulations do not violate the Fourth Amendment.

A. Whether the Legal Representatives Have Rights of Access

The employee records access regulations became effective on August 21, 1980. Hadis and Emco died in July of 1980.

According to Wyman, the rights of employees to access under the rule did not arise until the effective date of the regulations, by which time Hadis and Emco had died and therefore never had any rights of access. Wyman contends that whatever right to access a person who is not an employee may claim as the employee's representative derives totally from the employee. It maintains that, because Hadis and Emco had no right to access, their legal representatives cannot have a right of access to the records and analyses.

Section 1910.20 (e) (2) (i), (ii), and (iii) expressly require employers to provide access where requests are made by an "employee" or a "designated representative." Definitions of those terms appear at 29 C. F. R 1910.20 (c) (3) and (4) as follows:

(3) Designated representative means any individual or organization to whom an employee gives written authorization to exercise a right of access ....

(4) Employee means a current employee, [or] a former employee .... In the case of a deceased or legally incapacitated employee, the employee's legal representative may directly exercise all the employee's rights under this section.

In his decision, the judge rejected Wyman's interpretation of the rule and noted that the exact words of the regulation specifically grant to the legal representatives of deceased employees the right to act independently to "directly exercise all of the employee's rights."

Thus, in effect the judge read these words as empowering the legal representative exercise all of the rights that the deceased employee would have been able to exercise if the employee were still alive. The judge further reasoned that, because the definition of "employee" in section 1910.20 (c)(4) specifically addresses the rights of a person acting in the capacity of a legal representative, the regulation makes clear that the legal representative's right is not derivative and therefore not dependent on an employee surviving the effective date of the regulations. The judge noted that this interpretation serves an important purpose of the regulation, because, as the preamble to section 1910.20 provided:

[t]he records of deceased and incapacitated workers are obviously relevant to occupational health research. Therefore, the rule explicitly applies to records relevant to deceased and legally incapacitated employees.

Access to employee Exposure and Medical Records: Final Rule, 45 Fed. Reg. 35,212, 35,261 (1980)("1980 Preamble").

Wyman contends that the judge's interpretation would not serve the basic purposes of the regulation, which are to enable: "workers to play a meaningful role in their own health management"; "an employee's personal physician to diagnose, treat, and possibly prevent permanent health impairment"; and an employee to shape personal actions in light of exposure to toxic or otherwise harmful substances. See 1980 Preamble, 45 Fed. Reg. at 35,213, 35,214, 35,219, 35,221, and 35,222.

The Secretary asserts that the effective date of the regulations is only relevant to the extent it marks the beginning of the obligation on employers to assure access upon request. It does not act as a limitation on the rights that may be asserted by an "employee" or "designated representative" after the effective date. Relying on Pratico v. Portland Terminal Co. ("Pratico"), 783 F.2d 255, 261 (1st Cir. 1985), the Secretary contends that the Act is a remedial statute that is to be construed liberally in favor of its beneficiaries, and that her interpretation is in accord with the remedial purposes of the regulations and the Act.

We conclude that the judge's interpretation of the regulations as directly granting a right of access to legal representatives of deceased employees is the most reasonable reading of the language in the rules and is fully consistent with the purposes of the regulations. Under the standard, the effective date of the regulation has no relevance to the designated representative's right to request access to employee records and analyses. While, as Wyman points out, a number of the purposes of the regulation benefit living employees, we note that OSHA also identified a purpose of the regulation that is directed to the legal representatives of deceased employees. OSHA stated that:

At the suggestion of the Xerox Corp., the final rule also contains language assuring that the legal representative of a deceased or legally incapacitated employee may exercise rights under this rule....OSHA believes that the goals of the Act are well served by facilitating attempts by such legal representatives to ascertain whether the deceased or legally incapacitated employee was a victim of occupational disease, and to assist health research in discovering the causes of occupational disease.

1980 Preamble, 45 Fed. Reg. at 35,261.[[5]]

Wyman also argues that to interpret the regulation as requiring employers to provide access to records for employees who died before August 21,1980, would be unduly burdensome on employers because that "obligation would be limitless" and would increase the number of potential requests for records "exponentially."[[6]]

We note, as the judge did, that the Secretary has determined that the scope and burden of section 1910.20 are limited in that the records access rules do not require employers to create new records, monitor employees for exposures, or follow a prescribed format for records. Rather, section 1910.20 only requires that existing covered records must be preserved and made accessible, where appropriate. 1980 Preamble, 45 Fed. Reg. at 35,257. Because it recognized that the primary purpose of the regulations is to detect occupational disease, OSHA concluded that records going back some years "can be vitally important" in filling in the many years of data that a prospective approach would lose. 1980 Preamble, 45 Fed. Reg. at 35,258, 35,259.

In its notice of hearings on the proposed regulations, OSHA specifically invited comment on the issue of economic impact. Access to Employee Exposure and Medical Records Proposed Rule, 43 Fed. Reg. 46,322 (1978)("1978 Preamble"). After identifying and examining the factors that would place economic burdens on employers, OSHA determined that the records access regulations "will not present major compliance burdens to industry." This conclusion remained the same after consideration of the comments received on the proposed rules. 1980 Preamble, 45 Fed Reg. at 35,254. See also id. at 35,253, 35,256.[[7]] One of the many factors that OSHA considered in determining that the regulations are economically feasible was that "there is no reason to expect a flood of either initial or periodic requests for access." 1980 Preamble, 45 Fed. Reg. at 35,256. Section 1910.20 (e) (2) was "not meant to penalize conscientious employers, but is predicated on the judgment that invaluable exposure and medical records must be shared so as to minimize occupational disease" 1980 Preamble, 45 Fed. Reg. at 35,258.

As the portions of the preambles quoted above demonstrate, in determining what the regulation should require, OSHA considered and rejected the argument that Wyman raises here. Furthermore, because Wyman's contention questions the wisdom of the standard, it is an improper subject for a Commission ruling. E.g., Fabricraft, Inc., 7 BNA OSHC 1540, 1542, 1979 CCH OSHD 23,691 at p. 28,723 (No. 76-1410, 1979).

We therefore affirm the judge and conclude that, under the terms of the records access regulation, the legal representatives of Hadis and Emco have rights of access to relevant records and analysis, and they can analyze their "designated representative" to exercise those rights.

B. Whether the Judge Properly Vacated the Citation on the Ground that the Investigation Was Insufficient

As noted above, the events that led to this proceeding began when OSHA received a written complaint filed by Kehoe. Upon receiving this complaint, the compliance officer conducted an investigation at Wyman's office, where he met with Philip Woodbury, Wyman's Manager of Safety and Industrial Hygiene. Woodbury had, by that time, according to his testimony, responded to Kehoe's requests for records and analyses on behalf of Emco and Hadis by "gather[ing] [w]hat could conceivably be argued...was [a] relevant record under the meaning and intent of 1910.20." During the investigation, Woodbury told the compliance officer that Wyman was "fully aware" of Kehoe's request and "the records were in the custody of their lawyers." The compliance officer did not ask to see the documents himself to determine if Kehoe was entitled to access to them under the terms of the regulations. Instead, he requested only that Wyman give Kehoe access to all requested records and analyses.

In his decision, the judge vacated the entire citation because he concluded that the investigation was insufficient under section 9(a) of the Act. 29 U.S.C. 658(a),[[8]] a ground for relief that the judge raised on his own in the decision.[[9]] The judge stated that, in investigating alleged violations of the particular regulations at issue here, it is necessary for the Secretary to determine whether access has been denied and whether the employer in fact possesses: exposure records "relevant to the employee" under section 1910.10(e)(2)(i); medical records "of which the employee is the subject" under section 1910. 20(e)(2)(ii); and analyses using exposure or medical records "concerning the employee's working conditions or workplace" under section 1910.20(e)(2)(iii). He concluded that, because the Secretary had not yet seen the records and analyses at the time that she issued the citation, the Secretary would have had no evidence to prove the allegations that Kehoe was entitled to access under the terms of the regulations. On that basis, he vacated all three citation items.

The Secretary argues that the judge erred in vacating the items because he acted improperly in introducing this issue into the case for the first time in his decision. She notes that "insufficiency" of the inspection is, at best, an affirmative defense, which must be pleaded by the cited employer and that a failure to do so results in waiver or exclusion, citing Depositors Trust Co. v. Slobusky, 692 F.2d 205, 208 (1st Cir. 1982). Moreover, she notes that the Commission has held in numerous cases that judges must not consider defenses that are not jurisdictional when they are not raised by the parties. E.g., Ecco High Frequency Elec. Corp., 11 BNA OSHC 1453, 1454, 1983-84 CCH OSHD 26,504, p. 33,715 (No. 77-1030, 1983); Slyter Chair, Inc., 4 BNA OSHC 1110, 1113, 1975-76 CCH OSHD 20,589, p. 24,633 (No. 1263, 1976); D. Federico Co., 3 BNA OSHC 1970, 1971-72, 1975-76 CCH OSHD 20,422, pp. 24,377-78 (No. 4395, 1976), aff'd, 558 F.2d 614 (1st Cir. 1977). In particular, the Secretary points to decisions in which the Commission has instructed judges not to raise sua sponte the affirmative defense of reasonable promptness. Concrete Constr Corp., 4 BNA OSHC 1133, 1134. 1975-76 CCH OSHD 20,610, pp. 24,663-64 (No. 2490, 1976); Consolidated Pine, Inc., 3 BNA OSHC 1178, 1180, 1974-75 CCH OSHD 19,597, p. 23,408 (No. 5543, 1975). She asserts that these cases are clearly on point here because, like the issue of reasonable promptness, the insufficiency of the investigation at issue here concerns the propriety of OSHA procedures prior to issuance of the citation. She further contends that the judge's raising of this issue without affording the parties an opportunity to address it is inconsistent with the role of the Commission and its Judges to function as a "neutral arbiter." Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985).

We conclude that, based on the record in this case and the reasons presented by the Secretary, the judge erred in sua sponte raising the argument that the investigation was insufficient under section 9(a) of the Act.

In addition, we note that, even if the investigation were inadequate, Wyman was not prejudiced because it in fact did possess possibly relevant records and analyses in each of the three cited categories (employee exposure records, employee medical records, and analysis using exposure or medical records). As noted above, Woodbury testified that, by the time of the investigation, he had already gathered the records and analyses that arguably were applicable under section 1910.20. Therefore, Wyman was not surprised or forced to defend against frivolous charges.[[10]] Cf. H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 816 (5th Cir. 1981) (amendment to allow introduction of evidence obtained during "investigation" resulted in neither surprise nor hindrance to employer's preparation of defense); Bland Constr. Co., 15 BNA OSHC 1031, 1042-43, 1991 CCH OSHD 29,325, pp. 39,402-03 (No. 87-992, 1991) (amendment allowed due to lack of prejudice; both parties had basically same advantages and disadvantages).

For the reasons given above, we conclude that the sufficiency of the inspection is not an issue that is properly before us in this case.

C. Whether the Regulations Violate the Fourth Amendment

Wyman argues that the cited regulations violate the Fourth Amendment because they authorize warrantless searches of records in which employers have "legitimate and reasonable expectations of privacy," without "any administrative mechanisms for testing the reasonableness of the request" for access. The Secretary contends that the Fourth Amendment does not apply here for several reasons, and that, even if it does apply, it does not prohibit the searches authorized by the regulations. We first address the parties' arguments as to whether the Fourth Amendment applies, and then consider whether the searches at issue violate the Amendment.

1. Whether the Searches Authorized by the Regulations Are Private

The Secretary contends that Wyman has no Fourth Amendment rights to invoke here because the Fourth Amendment applies only to searches by the government, not to searches by a private individual, such as Kehoe. The Secretary asserts that, under case law interpreting the Fourth Amendment, an individual who conducts a search is not an agent of the government so long as the search is not conducted in collusion with or at the behest of government officials, and that here Kehoe acted on its own in requesting the records behalf of its clients, without the participation or knowledge of any governmental official.  She notes that OSHA did not seek access to Wyman's records and analyses for itself, although it could have obtained access to them under a separate regulation, 29 C.F.R. 1910.20(e)(3).

The judge rejected this argument.  He held that a search authorized by a regulation is private "only if the private party is in no way either an instrument or agent to the government," and concluded that this was not the case here.  He determined that "this proceeding is one of pure governmental action and the full panoply of Fourth Amendment rights appl[ies]."

In Monfort of Colorado, Inc., 14 BNA OSHC 2055, 2047-58, 1991 CCH OSHD 29,246, pp. 39,181-83 (No. 87-1220, 1991), the Commission rejected the same arguments that the Secretary makes here, by with regard to a different regulation.   In that case, the Secretary argued that the Fourth Amendment does not apply to searches authorized by 29 C.F.R. 1904.7(b)(1) [[11]] because they are private.   The Commission disagreed.  In Monfort, the requestor was a former employee, to whom the employer was required by section 1904.7(b)(1) to provide certain records that OSHA requires it to keep.  Similarly, in this case, the requestor is the designated representative Kehoe, to whom the employer is required by the cited provisions of section 1910.20(e)(2) to provide employee exposure and medical records and analyses using employee exposure and medical records.

In Monfort, 14 BNA OSHC at 2057-58, 1991 CCH OSHD at pp. 39,181-182, the Commission relied on the decision of the United States Supreme Court in Skinner v. Railway Labor Executives' Association ("Skinner"), 489 U.S. 602, 613-614 (1989). The Court in that case reiterated the basic principle that the fourth Amendment does protect against searches by private parties when they act as instruments or agents of the government.  Id. at 614.  The Court explained that "the degree of the Government's participation in the private party's activities...[is] a question that can only be resolved 'in light of all the circumstances'" (citations omitted). Id.

At issue in that case were regulations of the Federal Railroad Administration at 49 C.F.R. 219.301, contained in Subpart D, entitled "Authorization to Test for Cause." These regulations permit, but do not mandate railroads to require covered employees in certain circumstances to submit to breath on some of the tests. The Court stated that "specific features of the regulations combine" to support the conclusion that the search was governmental, not private. Id. at 615. Those specific features, which, taken together, convinced the Court, were that the FRA regulations: preempt state laws and regulations; were intended to supersede collective bargaining agreement provisions or arbitration awards construing such provisions; prohibit the railroads from divesting themselves of, or contracting away, the authority given them by the regulations, confer authority to test, for a public rather than a private purpose, in order to promote public safety; do not permit covered employees to decline their employers' request to test and remain in covered service; and authorize the FRA to receive "certain biological samples and test results procured by railroads pursuant to Subpart D. [49 C.F.R.] 219.11(c)," 489 U.S. at 615. Regarding the last factor, the Court noted that the FRA had a "desire to share the fruits of such intrusions." Id.

The Secretary contends that, unlike the FRA in Skinner, OSHA in this case does not need or want the records obtained by the employees because it has its own independent authority to obtain records under 29 C.F.R. 1910.20(e)(3). We disagree. The circumstances of this case are not distinguishable from Skinner on this basis.

First, we note that the interest of the agency in acquiring the results of the search is just one of a number of factors, which we have listed above, that the Court considered in reaching its decision in Skinner that the search was governmental, not private.

Secondly, the Secretary's contention appears to be based on the assumption that the FRA has a uniformly strong need or desire for all the testing results that 49 C.F.R. 219.11(c),[[12]] the general provision on testing that was noted by the Court, grants to it the right to receive. However, that provision authorizes FRA's access to the mandatory post-accident testing results taken under Subpart C, as well as the permissive testing results taken under Subpart D. It is arguable that the FRA may not need or want the results or permissive testing any more than the Secretary needs or wants the records here.

As the court did in Skinner, we conclude that "specific features of the regulations issue here" combine to support our conclusion that the searches authorized by the regulations are governmental, not private. These features include the intent of section 1910.20(e)(2) to promote the safety and health of employees in the workplace by informing them of job hazards. The regulation also furthers the purposes Congress had in enacting the Occupational Safety and Health Act, of "assur[ing] so far as possible every working man and woman in the Nation safe and healthful working conditions," and "providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health" due to the employee's work experience. Section 2(b) and (b)(7) of the Act, 29 U.S.C. 651(b) and (b)(7). Moreover, the regulation here was designed to encourage epidemiological research that can uncover patterns of occupational illness and the causes of these patterns. 1980 Preamble, 45 Fed. Reg. at 35,222. Consideration of these special features leads us to reject the Secretary's characterization of the searches authorized by the cited provisions of section 1910.20(e)(2) as merely private searches to which the Fourth Amendment does not apply.[[13]]

2. Whether the Reasonable Reporting Requirement Exception Applies

The Secretary further argues that the cited regulations fall within the reasonable reporting requirement exception to the Fourth Amendment's warrant requirement, discussed in California Bankers Association v. Shultz, 416 U.S. 21, 57-67 (1974). As we stated in Monfort, the reasonable reporting requirement exception to the Fourth Amendment applies only when the reports are submitted to the government, rather than to private individuals. 14 BNA OSHC at 2058-59, 1991 CCH OSHD at p. 39,183. The regulations at issue here only concern "reporting" to the designated representative, not to the government, therefore, that exception does not apply.

3. Whether There Was a Reasonable Expectation of Privacy

As another basis for finding that the Fourth Amendment does not apply, the Secretary claims that Wyman has no reasonable expectation of privacy vis-a-vis its own employees, past and present, two of whom Kehoe represents here. She relies on Marshall v. Barlow's Inc.,436 U.S. 307, 315 (1978), where the Court stated that "[w]hat [employees] observe in their daily functions is undoubtedly beyond the employer's reasonable expectation of privacy." In response, Wyman claims that it does have a reasonable expectation of privacy in the employee exposure and medical records, as well as analyses, that it has maintained over the years.

In order to invoke the protections of the Fourth Amendment, the party seeking relief must have a reasonable expectation of privacy in the object of the search. As the Court has declared, "[a] [Fourth Amendment] search occurs when 'an expectation of privacy that society is prepared to consider reasonable is infringed.'" Maryland v. Macon, 472 U.S. 463, 469 (1985) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). A reasonable expectation of privacy exists where the "subjective expectation of privacy" that an individual claims in the object of the search is an expectation that "society accepts as objectively reasonable." See California v. Greenwood, 486 U.S. 35, 39 (1988). We therefore must consider here whether Wyman's claimed expectation of privacy meets that test.

In Monfort, 14 BNA OSHC at 2059-60, 1991 CCH OSHD at p. 39,184, the Commission held that in order to determine whether there is a reasonable expectation of privacy, we must consider: what the nature of the records in question is; how private is the information in the records, and therefore how intrusive the search would be; and to what extent some of that information is otherwise divulged by the employer. Applying these criteria to the standardized OSHA No. 200 forms ("OSHA 200's") at issue in Monfort, the Commission concluded that the employer lacked a reasonable expectation of privacy. However, we conclude that the records at issue in this case are clearly distinguishable.

OSHA 200's contain only summary-type information concerning injuries and illnesses that employees may have learned of while on the job. Employers are required by law to post part of the OSHA 200 at the worksite. Furthermore, regulations require employers to compile the information on OSHA 200's. In contrast, the employee exposure and medical records and analyses at issue here contain quite detailed and personal information, and they may well reveal information about the employee's workplace and processes that the employer may have a legitimate expectation in keeping confidential.

The Commission has determined that at least as to one type of record, the OSHA No. 101 form ("OSHA 101"), which contains considerably more detailed information.[[14]] than the OSHA 200, employers do have a reasonable expectation of privacy. Taft Broadcasting Co.,Kings Island Div., 13 BNA OSHC 1137, 1141, 1986-87 CCH OSHD 27,861, p. 36,486 (No. 82-1016, 1987) aff'd. 849 F.2d 990 (6th Cir. 1988), Emerson Elec. Co., 13 BNA OSHC 1171, 1172 n.1, 1986-87 CCH OSHD 27,864, p. 36,493 n.1, aff'd, 834 F.2d 994 (11th Cir. 1987); and A B. Chance Co., 13 BNA OSHC 1172, 1986-87 CCH OSHD 27,863, p. 36,492 (No. 85-519, 1987), rev'd, 842 F.2d 724 (4th Cir. 1988).

Employers have an even greater expectation of privacy in the types of records and analyses that are sought here than in their OSHA 101's. The records and analyses at issue here may contain information on exposures, injuries, and illnesses of which the requesting employee or representative is otherwise unaware. Moreover, these records and analyses were, for the most part, compiled on the employer's own initiative, not for the purpose of complying with an OSHA regulation.

In light of the detailed information that the records and analyses contain and the attendant concerns regarding confidentiality, we conclude that Wyman had a reasonable expectation of privacy in the records and the related analyses that are sought here.

4. Whether the Searches Authorized by the Regulations Are Reasonable

Having rejected all the Secretary's arguments that the Fourth Amendment does not apply, we must next determine whether the searches authorized by the cited regulations are reasonable, or whether they are unreasonable and thereby require OSHA to obtain a warrant or equivalent legal process whenever an employee or designated representative seeks access to the records and analyses.

The basic purpose of the Fourth Amendment is to protect against searches that are "unreasonable." There is "no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails." Camara v. Municipal Court ("Camara"), 387 U.S. 523, 536-37 (1967). Whether a search is reasonable "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Skinner, 489 U.S. at 619, (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). What is reasonable "depends on all the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Skinner, 489 U.S. at 619 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)).

The regulations at issue here, which address access to employee exposure and medical records, as well as analyses using exposure or medical records, serve important informational interests of employees and their designated representatives. In comparison, the employer's interest in maintaining the privacy of the records and analyses with regard to its own employees is not very compelling. While it is true that some of the records and analyses at issue were prepared before the Occupational Safety and Health Act was enacted and may not have been intended for other than Wyman's own viewing, the Secretary took that into account in promulgating the records access regulations. Noting the "typically long latency periods associated with occupational disease," the Secretary explained that "[e]mployer arguments of unfairness must fall when balanced against the fact that continued secrecy will substantially impair the ability of workers, their representatives, and OSHA to detect, treat and prevent occupational disease." 1980 Preamble, 45 Fed. Reg. at 35,258.

Wyman contended at oral argument that to require employers to provide access to the records and analyses would have a "chilling effect" on employers and discourage them from preparing employee exposure and medical records and analyses for their own purposes. In promulgating the final access rules, OSHA noted similar arguments made by various companies and associations that "[b]ecause of the requirement for providing access to studies based on exposure or medical records . . . there may be a detrimental effect on company-sponsored health research or epidemiological studies." 1980 Preamble, 45 Fed. Reg. at 35,236. Participants in the rulemaking also voiced concerns that "broadened access to medical records would inevitably impair the creation, expansion and effectiveness of occupational medical programs." Id. In response to these arguments, OSHA stated that:

these predictions are exaggerated, since no concrete evidence was presented which indicated the standard would have a negative impact on corporate efforts to provide occupational health programs. As previously noted, corporate witnesses stated that, in fact, there would likely be no reduction in their occupational medical efforts.

Id. Therefore, in determining whether to adopt or modify the proposed records access regulations, OSHA considered and rejected the same argument that Wyman raises here. Furthermore, because Wyman's contention questions the wisdom of the standard. It is an improper subject for Commission ruling E.g., Fabricraft, Inc. 7 BNA OSHC at 1542, 1979 CCH OSHD at p. 28,723.

Moreover. an important objective is achieved by giving employees access to, the exposure and medical records and analyses using exposure and medical records--employees are informed about on-the-Job health and safety hazards. As OSHA has noted. [s]ound public policy dictates that workers he afforded a central role in the detection and solution of health problems ... ." 1980 Preamble, 45 Fed. Reg. 35,219. OSHA also explained that the problems that led to the passage of the Act and the high rates of occupational disease and death ... are reflections of the fact that, by itself, industry on the whole does not adequately protect worker health." Id.

An obligation that Congress imposed on the Secretary under the Act is to assure that employees have access to information relating to their "occupational safety and health. Section 8 (c) (1) of the Act, 29 U. S. C. 657 (c) (1), provides that "[t]he Secretary shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Act. including the provisions of applicable standards." Section 8 (c) (3) of the Act, 29 U. S. C. 657 (c) (3), states that the regulations issued by the Secretary requiring employers to maintain records of employee exposures to potentially toxic materials or harmful physical agents "shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, and to have access to the records thereof." Section 8 (g) (1) of the Act, 29 U. S. C. 657 (g) (1), authorizes the Secretary to compile. analyze, and publish, either in summary or detailed form. all reports or information obtained under this section."[[15]]

The Secretary also recognized that the procedure used by employees and their designated representatives to obtain access to the information in the records should not be unduly burdensome, such as requiring legal process, about which they may have little, if any, understanding. The governmental objective behind the records access regulations is set forth at the beginning of the 1980 Preamble as follows:

The fundamental reasons for this standard are the agency's judgments, based on experience, expertise, and the rulemaking record, that employee exposure and medical records are critically important to the detection, treatment, and prevention of occupational disease, and workers and their representatives need direct access to this information as well as to analyses of [employee exposure and medical] records....

45 Fed. Reg. at 35,213 (emphasis added).

OSHA further noted that sound public policy dictates that workers [and their designated representatives] be afforded a central role in the detection and solution of health problems, as there are no assurances that anyone else will protect their health with equal vigor or determination....

Id. at 35,219.

In a similar context, the Supreme Court has stated that "the Government's interest in dispensing with the warrant requirement is at its strongest when, as here, 'the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search."' Skinner, 489 U.S. at 623 (quoting Camara, 387 U.S. at 533). The Court went on to state that:

insistence on a warrant requirement would impede the achievement of the Government's objective. Railroad supervisors, like school officials, see New Jersey v. T.L.O., 469 U.S. [325],339-40 [(1985)], and hospital administrators, see O'Connor v. Ortega, 480 U.S. [709], 722 [(1987)], are not in the business of investigating violations of the criminal laws or enforcing administrative codes, and otherwise have little occasion to become familiar with the intricacies of this Court's Fourth Amendment jurisprudence.

Id.

To impose a warrant requirement here would frustrate the stated purpose of the regulations to grant direct access. It would impose on employees or their designated representatives the burden of seeking a warrant, even though they are no more in the business of enforcing administrative regulations than the railroad supervisor, school official, and hospital administrator mentioned by the Court in Skinner. We therefore conclude that it would likely be unduly burdensome to require employees or their designated representatives to obtain warrants or administrative subpoenas as a condition precedent to gaining access to the records and analyses sought here.

We thus conclude that the searches authorized by the regulations at issue are reasonable under the Fourth Amendment because the interests of the designated representatives in the records and analyses outweigh the privacy interests of Wyman in those records.

D. Summary

We have concluded that: (1) the legal representatives have rights of access to records and analyses under the regulations: (2) the issue of the sufficiency of the inspection is not properly before us; and (3) the Fourth Amendment applies but is not violated by the cited regulations.

E. Disposition of Item 2--Access to Medical Records

Having disposed of all the issues raised by Wyman that are directed to the entire citation, we have thus resolved Wyman's only challenges to item 2 of the citation, which, as discussed in section 1, supra, concerns access to employee medical records. We therefore affirm item 2 as an other-than- serious violation of section 1910.20(e)(2)(ii)(B). Remaining for consideration are issues raised by the Secretary and Wyman concerning access to employee exposure records (item 1) and access to analyses using exposure or medical records (item 3).

III. Item 1--Access to Exposure Records

Item 1 of the citation alleged that, by denying the designated representative access to relevant employee exposure records, Wyman violated section 1910.20(e)(2)(i), which provided: [[16]]

Each employer shall, upon request, assure the access of each employee and designated representative to employee exposure records relevant to the employee. For the purpose of this section, exposure records relevant to the employee consist of:

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

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

(C) Records containing exposure information concerning the employee's workplace or working conditions ....

(Emphasis added).

Because the disputed records do not show actual exposures of Emco or Hadis to the harmful substances being measured, the Secretary and Wyman agree that none of the records are "relevant" to these employees under subsection (A). Rather, the Secretary contends that she has established that Wyman violated section 1910.20(e)(2)(i) by showing that certain "Exhibits"[[17]] specifically identified by the Secretary, as a result of her examination under the judge's order:(1) are "exposure records of other employees with past or present job duties or working conditions related to or similar to those of the employee" under subsection (B); or (2) contain "exposure information concerning the employee's workplace or working conditions" under subsection (C).[[18]]

Wyman argues that the Secretary has not proven any violation because she failed to meet her burden of establishing a nexus between Emco's or Hadis' work routine and exposure to the substances measured in the exposure records.

We discuss these arguments first as they relate to Emco and "Exhibits" 3A and 7, and then as they relate to Hadis and "Exhibits" 8A, 8B, 8C, and 11.

A. Emco and "Exhibits" 3A and 7

The Secretary asserts that, contrary to the judge's findings, she established that "Exhibits" 3A and 7 are "relevant" to Emco and has therefore proven that Wyman violated section 1910.20(e)(2)(i) in that it did not provide Kehoe with access to them.

"Exhibits"  3a and 7 consist of results of air samples taken in the Worcester Die Shop at or near operators of grinding and boring machines. The sampling was done in January  and February of 1979 to measure levels of the target substance,[[19]] which is generated at grinding and boring machines during coolant application. "Exhibit" 3A consists of results of five area samples taken at breathing zone level in the vicinity of the machine operators. The samples are identified by machine, not by employees' names. "Exhibit" 7 contains results of sampling at the breathing levels of the operators, between the operators and the machines. These results identify the operator sampled. "Exhibit" 7 contains a statement that "[i]t was alleged that [the target substance] drifted into" the location of two machine operators when a specific grinding machine was in operation across the aisle.

According to his personnel record, which was admitted into evidence, Emco worked in the Die Shop at the Worcester facility from January 1952 to February 1963, and from September 1969 to February 1971. His job positions in the Die Shop during these periods were "die trainee," "trim die maker," "die mover," "die inspector-helper," and "die inspector." Emco worked in other departments at the Worcester facility in addition to the Die Shop. Most notably, he worked as a "process inspector" in the Inspection Department from October 1978 until his retirement in February 1979.

Philip Woodbury, Wyman's Manager of Safety and Industrial Hygiene, testified that Wyman made the determination that the records at issue did not relate to Emco because he was not working in the Die Shop in January and February of 1979, when the sampling was done. Woodbury stated that in order to determine whether access to a particular Die Shop record must be provided to Kehoe under the regulation, it is necessary to know the operation being monitored, the alloys being machined, the specific machine coolant and cutting fluid being used, and the environment at the time. Colleen Murphy, Wyman's Eastern Division Industrial Hygienist, agreed with Woodbury, noting that it is necessary to know if the machine and lubricant sampled for the record are the same as those used by the employee. She testified that "throughout the [die] shop" there is "nothing static."

I. Judge's Decision

The judge found that Emco was at the Worcester Die Shop at the time "Exhibits" 3A and 7 were compiled. However, as noted above, Emco's personnel record shows that he was working as a Process Inspector in the "Inspection" Department at Worcester in January and February of 1979, when the samples for "Exhibits" 3A and 7 were taken. Emco's personnel record clearly distinguishes the "Die Shop" as a separate department from "Inspection." We therefore conclude that, at the time of the sampling, Emco was working in the Worcester plant, but not in the Die Shop, where he had previously worked. Insofar as the judge found otherwise, we set aside his determination on this matter, which alone is not dispositive of this issue.

The judge determined that, although the "Exhibits" contained sampling results from the Die Shop, they were not "relevant" to Emco under subsection (B) because they were not exposure records of employees with "job duties or working conditions related to or similar to" Emco's job positions. The judge concluded that he "would have to guess that a die trainee, a trim die maker, an inspector, mover, or lubricator, all the jobs described as held by Mr. Emco, are related to the records marked as exhibits 3A and 7," which concern only operators of grinding and boring machines.

The judge found that the "Exhibits" did contain "exposure information concerning [Emco's] workplace," as subsection (C) requires. However, he determined that the Secretary must show more than the presence of the employee in the workplace; she must prove, in the judge's words, "some relationship between an employee's [work] routine and exposure to a toxic agent or harmful physical substance." In support of this conclusion, he looked toward provisions that apply to all records access regulations, including 29 C.F.R. 1910.20(c)(5). which defines "employee exposure record" as "a record containing any of [several] kinds of information concerning employee exposure to toxic substances or harmful physical agents."[[20]] The judge also noted the "extreme care" used regarding new or transferred employees in the provision defining "employee" at 29 C.F.R. 1910.20(c)(4).[[21]] He observed that OSHA's explanation for that careful inclusion was that "employees with only hypothetical future exposure are not entitled to any rights under this rule...." 1980 Preamble, 45 Fed. Reg. at 35,261.

The judge concluded that, because the "Exhibits" show exposure of only employees who operated grinding and boring machines, positions never held by Emco, the Secretary did not prove that Emco,. in his positions in the Die Shop, encountered actual or potential exposure to the target substance. He therefore vacated the citation item insofar as it alleged a violation based on failure to provide access to "Exhibits" 3A and 7.

2. Arguments of the Parties

The Secretary argues that "Exhibits" 3A and 7 are relevant to Emco under the express terms of the cited regulation. She contends that the operators of the grinding and boring machines in the Die Shop had duties "related to or similar to" those of Emco, as subsection (B) requires and that the records "concern" Emco's "workplace," as subsection C) requires. Urging us to give the term "workplace" its plain meaning, she refers to Frank Diehl Farms v. Secretary of Labor, 696 F.2d 1325 (11th Cir. 1983). In that case, the court recognized that

[s]ince Congress left the term "workplace" [in section 4(a) of the Act, 29 U.S.C. 653 (a)] undefined in the Act, it should be given its ordinary, common sense meaning...The term "workplace" connotes the place where one must be in order to do his job.

Id. at 1331. Quoting from Webster's Third New International Dictionary of the English Language 2635 (1971), she states that "workplace" means a "place (as a shop or factory) where work is done." (Secretary's emphasis).[[22]]

The Secretary specifically takes issue with the judge's reliance on the definition in section 1910.20(c)(5) of "employee exposure record." She contends that, in making this connection, the judge "erroneously engrafted onto" section 1910.20(e)(2)(i)(C) a requirement that the Secretary show a potential for exposure of the requesting employee to the target substance. In the Secretary's view, she need only show that the requesting employee was working in a workplace where the sampling was done. The Secretary notes that all she is seeking is an order requiring Wyman to provide the designated representative with access to already existing records. She contends that such access should not be dependent upon her ability to establish Emco's exposure to the target substance, or to show, for example, a violation of 29 C.F.R. 1910.1000, which sets limits on employee exposure to air contaminants.

The Secretary emphasizes that the purpose of the records access regulations is to grant "broad worker and designated representative access to records." 1980 Preamble, 45 Fed. Reg. at 35,217. She asserts that remedial regulations, like OSHA's, are to be broadly construed, citing Pratico, 783 F.2d at 261. She also contends that her interpretation of her own regulation is reasonable and therefore entitled to deference by the Commission and courts, relying in her brief on Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).

Furthermore, the Secretary contends that, even if she does, as the judge found, have the burden of showing Hadis' possible past exposure, she has proven it.

Wyman contends that the judge's analysis of the relevancy of "Exhibits" 3A and 7 under section 1910.20(e)(2)(ii) was "precisely the way" such a determination should be made. It urges the Commission to affirm the judge's conclusions that: (1) the Secretary must prove some relationship between an employee's work routine and exposure to the target substance in order to show relevancy; and (2) she has failed to show that with regard to "Exhibits" 3A and 7.

3. Discussion

a. "Relevance" under Subsection (B)

Subsection (B) provides that records are relevant so long as there are "[e]xposure records of other employees with past or present job duties or working conditions related to or similar to those of the employee." Therefore, this subsection applies only to personal sampling results, see 1980 Preamble, 45 Fed. Reg. at 35,272-73. Only "Exhibit" 7 contains personal sampling results. "Exhibit" 3A contains only area samples identified by machine. Therefore, "relevance" under subsection (B) could only be established with regard to "Exhibit" 7. To make a prima facie showing of "relevance" under subsection (B) in this case, the Secretary had to prove that the operators of the grinding and boring machines who where one must be in order to do his work." We agree with the Secretary that, by showing that Emco worked in the Die Shop, the same "workplace" or "shop" where the sampling was conducted, she has established that "Exhibit" 3A is "relevant" to Emco under subsection (C). See Martin v. OSHRC (CF&L Steel Corp.), 111 S. Ct. 1171 (1991). However, as the judge found, this minimal showing of "relevancy" as defined in subsection (C) (which, as noted above, has since been deleted) may not establish a violation by itself. Remaining for consideration is the issue of proof of a relationship between Emco's job duties and the target substance.[[25]]

c. Relation Between Emco and Exposure

Wyman contends that the Secretary has not proven a violation because, as the judge found, she did not establish a relationship between Emco's work routine and exposure to the target substance. The Secretary contends that the only showing required to obtain access under section 1910.20(e)(2)(i) is that the employer worked in the same "workplace."

1. Necessity of Showing Relation

The judge concluded that the regulations were only intended to require employers to provide access to employees whose job duties placed them in positions of actual or possible exposure to the sampled substances. He found that this requirement was rooted in the following two definitional provisions at 29 C.F.R. 1910.20(c).

Section 1910.20(c)(5) provides, as noted above, that "an employee exposure record" is a record containing information "concerning employee exposure."   By its own terms, this definition demonstrates OSHA's intent not to grant access to records where the requesting employee has never been exposed to a toxic substance or harmful physical agent. Application of that definition here accords with: (1) the general scope provisions for the records access rules, see 29 C.F.R. 1910.20(b)(l) and (2); [[26]] and (2) OSHA's explanation in the summary of the regulations that:

[s] ince the rule seeks to yield benefits in the detection, treatment and prevention of occupational disease, coverage is appropriately limited to records relevant to employees currently or previously exposed to toxic substances or harmful physical agents.

1980 Preamble, 45 Fed. Reg. at 35,215 (emphasis added).

The other definitional provision is section 1910.20(c)(4), see supra note 21, which provides that the term "employee" means "a current employee, a former employee, or an employee being assigned or transferred to work where there will be exposure to toxic substances or harmful physical agents...."That language was developed in response to comments on a section in the proposed regulations that provided, as explained by OSHA that an employee or designated representative would be "entitled to exposure information that is indicative not only of the employee's current exposures, but also information regarding former exposures and future or potential exposures as well ...." 1978 Preamble, 43 Fed. Reg. at 31,373. The definition at section 1910.20(c)(4) thus implements OSHA's announced policy under the Act that "employees have their basic right to know about their exposures to workplace hazards and the effects of exposure" (emphasis added). Id. at 31,371.

In addition to the definition upon which the judge relied, the definition of "exposure" or "exposed" at 29 C.F.R. 1910.20(c)(8) supports his view well. According to that provision "[e]xposure or exposed 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 (e.g., accidental or possible) exposure..." OSHA explained "[t]his [latter] phase was included to indicate that the standard covers situations where exposure could reasonably have occurred and not only situations where exposure has definitely occurred or been measured." 1980 Preamble, 45 Fed. Reg. at 35,265. In further explanation this definition, OSHA stated:

The final standard thus does not apply to every situation where any chemical or hazard is present in the workplace. While the final rule presumptively applies to all occupational exposures to toxic substances and harmful physical agents, the agency does not intend to cover situations where the employer can demonstrate that an employee is solely exposed to general environmental pollution, or to casual use of consumer products. For example, basic chemical processes and abnormal exposures to heat, noise, and vibration are covered by the rule, but typical office working conditions are not. The applicability of the standard does not, however, depend on any showing that the level of actual exposure to a toxic substance or harmful physical agent is particularly excessive, but rather on the unique fact of occupational exposure.

Id. at 35,265 (emphasis added). In 1988, the Secretary (after noting the language quoted above) explained that there were no revisions to it because "[t]his continues to be OSHA's interpretation of the degree of exposure necessary to trigger the requirements of the rule." Access to Employee Exposure and Medical Records: Final Rule, 53 Fed. Reg. 38,140, 38,151 (1988)("1988 Preamble"). Thus, the Secretary must show "the unique fact of occupational exposure" to "trigger" these regulations.

Reading this provision and section 1910.20(c)(4) and (c)(5) together with portions of the preambles to the proposed, final, and amended regulations establishes that the judge was correct in requiring the Secretary to show that, at the very least, Emco's work routine could possibly have exposed him to the target substance in order to prove a violation under section 1910.20. This is in accordance with the well-established rule of statutory construction that "each part or section should be construed in connection with every other part or section so as to produce a harmonious whole." 2A Sutherland Statutory Construction 46.05 (4th ed. 1984).[[27]] The Secretary herself recognized and advocated use of this principle of regulatory construction in her "workplace" argument mentioned in note 22 supra.

Commission precedent also supports this result. The requirement that the Secretary make this showing under this regulation is similar to the requirement that, ordinarily, the Secretary must prove that the employee was or would be in the "zone of danger"   because of the nature of the employee's duties and activities in order to establish a prima facie showing of a violation. See Gilles & Cotting, Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD 20,448, p. 24,425 (No. 504, 1976). Cf. Astra Pharmaceutical Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD 25,578, 31,899-900 (No. 78-6247, 1981), aff'd in part, 681 F.2d 69 (1st Cir. 1982)(element required to prove a violation--employees had access to the violative condition). While under normal circumstances the Secretary must make such a showing, there is no such requirement, where, based on the peculiar circumstances of the case, it would be unfairly burdensome. See General Carbon Co., Div. of St. Mary's Carbon Co. v. OSHRC, 860 F.2d 479, 482-83 (D.C. Cir. 1988) (the Secretary need not show exposure under the unique circumstances of a case involving the hazard communication standard (29 C.F.R. 1910.1200), where downstream uses and procedures unknown).

In Gilles & Cotting, the employer claimed, as Wyman does here, that the Secretary must show actual exposure of the employee to the hazard. The Secretary maintained that a more practical burden would be to show exposure based on reasonable predictability, which could be proven by showing that employees "while in the course of their assigned working duties" actually were or will be "in a zone of danger." 3 BNA OSHC at 2003, 1975-76 CCH OSHD at p. 24,425. The Commission agreed, further noting that "[w]e cannot by this decision foresee all the possibilities [of employee exposure to a hazard]; the question is one of fact to be determined on a case by case basis." Id. The regulation here imposes just such a practical burden on the Secretary.

This exposure requirement can be met by a fairly minimal showing. For example, it could be sufficient to show that the employee worked in the same job position in the same department as the employees sampled for the records. Such proof would be necessary anyway to establish "relevancy" under subsection (B) as it existed when Wyman was cited, or under the revised subsection (B), set forth in note 18 supra.

For the reasons stated above, we conclude that, in order to prove a violation of section 1910.20 here, the Secretary must show a relationship between Emco's work routine and exposure to the target substance.

2. Adequacy of Showing

Having found that the Secretary must show some relationship between Emco and exposure to the target substance, we now consider whether she has done so here. The judge determined that, although it was established that Emco had worked in the Die Shop, "the factual pattern was not developed to the point where I may find that those positions would or could bring Mr. Emco into exposure." He stated that, based on the record in the case, he would have to "guess" that Emco's jobs would have exposed him to hazards experienced by operators of grinding and boring machines, jobs which Emco never held.

We agree with the judge and conclude that, although the Secretary established that Emco had worked in the Die Shop in years prior to the sampling that was the subject of "Exhibit" 3A, she failed to show any relationship between the types of jobs that Emco performed in that shop and the work performed by the employees near the areas sampled in "Exhibit" 3A.[[28]] The only evidence in the record is that Emco's job titles differed from those of the employees working in the areas sampled in early 1979.

The Secretary claims that "a showing has been made that [Emco] worked in the same general area as fellow employees who unquestionably were exposed to" the target substance, and the target substance was "not confined but would drift." She relies on "Exhibits" 3A and 7 as support for those arguments, as well as for her contention that it was shown that "[a]n air blower caused [the target substance] to drift in the die shop." We find no basis in the record for the Secretary's contention that the target substance would drift throughout the Die Shop. Her reliance on "Exhibits" 3A and 7 is misplaced because, as noted above, by agreement of the parties, the "Exhibits" are not in evidence. Even if we could consider the information in the "Exhibits," it appears that only "Exhibit" 7 has any possibly relevant language, and it is presented in the form of an allegation, not a statement of fact.

Based on the record before us, we find that the Secretary has not established the requisite relationship between Emco's work routines and exposure to the target substance necessary to prove a violation of section 1910.20(e)(2)(i). [[29]]  We note that the Secretary might have established the requisite nexus in the case if she had elicited testimony or otherwise established by evidence of record that Emco's positions in the Die Shop placed him very near operators of the grinding and boring machines. Furthermore, the record does not include evidence of the size of the shop. Had the Secretary introduced information on these matters into evidence and had such evidence shown a relationship between Emco and exposure, she could have established the exposure element of her case. Based on the Secretary's failure of proof and the undisputed testimony of Woodbury and Murphy that the conditions in the Die Shop varied depending on the machine and lubricant in use, we conclude that no violation was proven with regard to "Exhibit" 3A.

3. Summary

We conclude, as the judge did, that the Secretary has not met her burden of proof with regard to "Exhibits" 3A and 7. Therefore, we vacate item 1 insofar as it alleged a violation of section 1910.20(e)(2)(i) for failure to provide Kehoe with access to "Exhibits" 3A and 7.

The remaining issues in this case concern records and analyses allegedly relevant to Hadis, who worked in a different department than Emco at the Worcester facility.

B. Hadis and Exhibits" 8A and 8B

Section 1910.20(e)(2)(i)(B) provided, as quoted above, that exposure records are "relevant" to the employee if they are "of other employees with past or present job duties or working conditions related to or similar to those of the employee." Wyman argues that the judge erred in finding that "Exhibits" 8A and 8B are "relevant" to Hadis under subsection (B) and in concluding that Wyman violated section 1910.20(e)(2)(i) by refusing to allow access to them.

"Exhibits" 8A and 8B are the results of personally-identified air samples of "helpers," "oilers," "operators," and "hammermen" in the Forge Department at Worcester. The samples, which were taken in March 1978 ("Exhibit" 8A) and March 1979 ("Exhibit" 8B) show the exposure of these employees to the target substances that resulted from the use of certain forging compounds, or lubricants. The Secretary has maintained that, because Hadis worked in some of these same positions in this same department, "Exhibits" 8A and 8B are exposure records "of other employees with past or present job duties or working conditions related to or similar to those of" Hadis, and therefore "relevant" to him under section 1910.20(e)(2)(i)(B).

Hadis worked in the Forge Department at Wyman's Worcester plant as a "helper," "oiler," "general forge helper," and "die heater" from October 1950 to September 1971. He worked for short periods in the Forge Department as a "forge helper" in 1974, 1975, and 1977, and as a "manipulator operator" In 1979, in between jobs in other divisions of the Worcester plant, such as the Inspection Department.

Philip Woodbury, Manager of Safety and Industrial Hygiene for Wyman's Eastern Division, described the Forge Department as "a very large place" measuring 79,000 square feet. It contains hammers in clusters of two or three separated by furnaces, a centrally located blacksmith shop, and trim presses. Woodbury further testified that the Forge Department is a "job shop," not a production facility, and at any one moment employees in the department may be working on 300 or more different product configurations. According to VVoodbury and Colleen Murphy, Wyman's Industrial Hygienist, the alloys, temperatures, materials, and environment in the Forge Department are constantly changing.

The judge agreed with the Secretary and concluded that, because Hadis had worked in some of the sampled job positions in the Forge Department "over the years" and "during the sampling,"[[30]] "Exhibits" 8A and 8B were "relevant" to Hadis. He found that by denying access to them, Wyman had violated section 1910.20(e)(2)(i).

Wyman contends that the judge erred because the Secretary has not proven that: (1) employees whose exposure was sampled had "job duties or working conditions related to or similar to" those of Hadis, within the meaning of subsection (B); and (2) the target substances sampled were used when, and in the area where. Hadis worked, and therefore there was no evidence linking Hadis' work in the Forge Department with exposure to the target substance. Wyman contends that just because the employees sampled had the same job titles as Hadis does not mean that they were similarly situated. Wyman relies on the testimony of its Industrial Hygienist Murphy that employees having the same job title in the Forge Department can perform different tasks. Murphy gave as a specific example that she has been "in the Forge Shop where somebody whose job title was an oiler at a certain location may be a helper," or if his oiler job finishes early, he may get reassigned.

1. "Relevance" under Subsection (B)

To make a prima facie showing of "relevance" here under subsection (B), the Secretary must show that the "Exhibits" 8A and 8B consist of "[e]xposure records of other employees with past or present job duties or working conditions related to or similar to those of" Hadis. We conclude that she has made such a showing because "Exhibits" 8A and 8B contain the results of personal samples taken of employees who, like Hadis, worked in the Forge Department as "helpers" and "oilers."

To rebut the Secretary's showing, Wyman relies on Murphy's testimony that employees with the same job title do not necessarily perform the same work. Wyman's reliance is misplaced. The specific example that Murphy gave was that an oiler might do a helper's job. However, Hadis was employed both as a helper and an oiler, and sampling results from employees in both of those positions are contained in the "Exhibits."

We therefore conclude that the Secretary has established that "Exhibits" 8A and 8B are "relevant" to Hadis.

2. Relation Between Hadis and Exposure

Wyman argues that the Secretary has not proven a violation because she has not related Hadis' work duties to exposure to the target substance. It contends that this is necessary because, as its witnesses Woodbury and Murphy testified, the Forge Department is very large, with ever-changing conditions.

However, as we indicated above, the evidence necessary to establish this relationship need not be extensive. It is sufficient to show that the employee worked in the same positions in the same shop as the employees sampled. Here, to establish "relevancy" under subsection (B), the Secretary has already shown such a relationship between Hadis and exposure to the target substance sampled in "Exhibits" 8A and 8B.

3. Summary

We therefore conclude that the Secretary has shown that "Exhibits" 8A and 8B are "relevant" to Hadis under subsection (B) and that Hadis was possibly exposed to the target substance in his work. Accordingly, we affirm the judge and conclude that Wyman violated section 1910.20(e)(2)(i) by denying the request of Kehoe for access to those "Exhibits."

C. Hadis and "Exhibit" 8C

Wyman contends that the judge erred in determining that "Exhibit" 8C was "relevant" to Hadis under subsection (C), and in concluding that Wyman was in violation of the standard.

"Exhibit" 8C is a one-page document showing the results of four area air samples that were taken to determine the level of the target substance, in the testing of a lubricant, at four different locations near a particular "unit." Although the heading of the "Exhibit", states "Wyman-Gordon Company, Worcester and North Grafton, Massachusetts."

Individual descriptions of each of the four samples gives as the location the "Worcester plant." The "Exhibit," which the parties stipulated was dated February 12, 1975, does not indicate in which department or departments the sampling was done. One area being sampled was described as "[g]eneral room atmosphere at breathing zone level . . . between forging hammer and trimming hammer." As noted above, Hadis had worked in the Forge Department in various positions.

In his decision, the judge found that the lubricant was not identified and that Wyman did not know if it had ever been used in the Worcester Forge Department.[[31]] Nevertheless, he concluded that the fact that the target substance was present in the "general room atmosphere at breathing zone level" near the hammers was sufficient to establish relevancy to Hadis because "this was a position or placement that Hadis could have found himself in." In reaching that conclusion, the judge rejected the testimony of Wyman's manager Woodbury and instead relied on information contained in one of the "Exhibits," which is not in evidence. He therefore found Wyman in violation of the regulation for not providing access.

The Secretary contends that "Exhibit" 8C is a "record containing exposure information concerning [Hadis'] workplace or working conditions" in the Forge Department and therefore "relevant" to Hadis under section 1910.20(e)(2)(i)(C). She asserts that the sampling for the substance was done at the breathing zone level near the hammers. She contends that Hadis worked near the hammers, and therefore the records "concern" his "workplace" or "working conditions" and are "relevant" under section 1910.20(e)(2)(i)(C).

Wyman argues that the Secretary has failed to prove that: (1) the "Exhibit" concerns the Forge Department and is therefore "relevant"; and (2) a nexus exists between Hadis' work in the department and exposure to the target substance.

The "Exhibit" itself makes no reference to the "Forge Department." [[32]] The Secretary contends that Hadis did work at a location in the Forge Department such as the one tested, but the only specific information supporting her claim is contained in another "Exhibit," the one upon which the judge relied. As discussed above, the"Exhibits" are, by agreement of the parties, not in evidence and do not constitute part of the record. Information in the "Exhibits" that does not appear in the record cannot be relied upon as established fact. We thus conclude that the Secretary has not established that the "Exhibit" concerned Hadis' "workplace" or "working conditions" and would therefore be "relevant."

Even if we were to conclude that Hadis worked "between the forging hammer and trimming hammer," and the "Exhibit" was therefore "relevant" under subsection (C), there was no showing of nexus between Hadis and exposure to the target substance because, as noted above, it was not established that the lubricant being tested for "Exhibit" 8C was ever used in the Forge Department.

For the reasons above, we find that the Secretary has failed to establish that "Exhibit" 8C contained exposure information "concerning [Hadis'] workplace or working conditions," and therefore she did not establish that the "Exhibit" was "relevant" under subsection (C). Having failed to prove "relevancy," the Secretary has failed to establish a violation based on "Exhibit" 8C, and we vacate the citation item insofar as it alleged such a violation.

D. Hadis and "Exhibit" 11

"Exhibit" 11 consists of many pages of results of area air sampling done in the early 1960's at various machines at the Worcester plant. Only a few pages, including the top one, identify the target substance being sampled. Several pages mention the "Forge Shop" as the site of sampling, but do not refer to the target substance. Although it does not actually identify the Forge Department, one page that does include the target substance states that sampling results were from "Forgings."

At the hearing, Wyman's Safety Manager Woodbury testified that the target substance, identified in relation to a small number of samples, was used in the Forge Department only for research and development, not for production. He stated that the target substance was used in cans which were struck with hammers on a non-continuous basis from 1959 to 1964 for a research and development operation to determine if hammering was more effective than forging.

The judge noted that Hadis was working in the Forge Department as a "general forge helper" and "oiler" during the period of 1959 to 1964, when the sampling of the target substance contained in "Exhibit" 11 was being conducted. He noted Woodbury's testimony concerning the exclusive research use of the target substance, but he never found that Hadis had worked in that research operation. Based on certain sampling results in the "Exhibit," the judge determined that the target substance "appears" to have been used in the Forge Department. The judge went on to conclude that "[a]s slight as this [exposure] may be, Hadis could. have been exposed." He then determined that the pages of "Exhibit" 11 that "reveal such an exposure (to exclude all others where the material sampled is unknown), should be made available" to Kehoe.

Wyman argues that the judge erred in his finding of a violation with regard to certain pages because the Secretary has failed to prove that: (1) the "Exhibit" is "relevant" under subsection (C); and (2) there was a nexus between Hadis' work routine in the Forge Department and exposure to the target substance.

1. "Relevance" under Subsection (C)

To make a prima facie showing of "relevance," the Secretary must show that the "Exhibit" contains exposure information "concerning [Hadis'] workplace or working conditions." With regard to "workplace" or "shop," we note that relatively few of the pages indicate that the sampling results were taken in the "Forge Shop." However, none of those pages indicate what the target substance was. Even if we were to conclude that the Secretary had shown "relevance" under subsection (C) insofar as the one page that refers to the target substance states that it was sampled from "Forgings," the Secretary has not proven a violation for the reasons discussed below.

2. Relation Between Hadis and Exposure

Wyman contends that the Secretary has not proven a violation because she has not established that Hadis in his work could have been exposed to the target substance. As noted above, Woodbury testified that the target substance was used in the Forge Department only in research and development, not in production. Hadis' personnel record, the only evidence of his work in the Forge Department, indicates that he worked there only in a production capacity.

The Secretary argues that ''Hadis worked with hammers" and, because the target substance was used as an experiment to show that hammering was cheaper than forging, he therefore was or could have been exposed to the target substance. However, there is no support for that assertion in the evidence.[[33]]

No showing having been made that Hadis was involved in that research operation or would otherwise have been exposed to the target substance, we conclude that the Secretary has not established the requisite relationship between Hadis' work routine and exposure to the target substance.

For the reasons stated above, we find no violation with regard to "Exhibit" 11, and we vacate item 1 of the citation insofar as it alleges a violation for denying access to "Exhibit" 11.

E. Summary of Item 1

Based on the discussions above concerning all of Item 1, we affirm item 1 insofar as it alleges a violation based on denial of access to "Exhibits" 8A and 8B and vacate that item insofar as it alleges a violation for denying access to "Exhibits" 3A, 7, 8C, and 11.

IV. Item 3--Access to Analyses Using Exposure or Medical Records

Item 3 of the citation, as amended, alleged that, by denying the designated representative access to analyses using exposure or medical records that concern Hadis' workplace, Wyman committed an other-than-serious violation of section 1910.20(e)(2)(iii)(A). That standard provides:

Each employer shall, upon request, assure the access of each employee and designated representative to each analysis using exposure or medical records concerning the employee's working conditions or workplace.

Section 1910.20(c)(2) defined[[34]] "analysis using exposure or medical records" as:

[A]ny compilation of data, or any research, statistical or other study based at least in part on information collected from individual employee exposure or medical records or information collected from health insurance claims records ....

(Emphasis added).

The Secretary contends that she was proven that Wyman violated section 1910.20(e)(2)(iii)(A) because she established that: (1) the studies comprising "Exhibits" 1A, 1B, and 1C, and the report and comments comprising "Exhibits" 2 and 2A are "analyses using exposure or medical records," as defined by section 1910.20(c)(2); and (2) these "Exhibits" concern Hadis' "working conditions or workplace." Wyman contends that the Secretary has not established a violation because she has not proven either of those assertions.

A. "Exhibits" 1A, 1B, and 1C

"Exhibits" 1A, 1B, and 1C are mortality studies of employees who worked at Wyman's Eastern Division plants in Worcester and Grafton, Massachusetts. They are based on information in death certificates and personnel records of those former employees. The "Exhibits" consist of text and tables analyzing the causes of death in relation to the work area of the deceased employees, as well as other factors. The Forge Department at the Worcester plant is one of the key work areas considered.

"Exhibit" 1A, dated August 9, 1976, analyzes the causes of the deaths of employees who died between January 1, 1966, and December 31, 1975. It includes a chart showing certain causes of death by work area. "Exhibit" 1B, dated July 6, 1979, analyzes the causes of death for employees who died between 1976 and 1978 "Exhibit" 1C, dated May 11, 1981, does the same for employees who died in 1979 and 1980.

1. Use of "Employee Medical Records"

The first issue raised by Wyman concerning access to these studies is whether the judge erred in agreeing with the Secretary that death certificates, upon which "Exhibits" 1A, 1B, and 1C are based, are "employee medical records," and that therefore these "Exhibits" are "analys[e]s using ... medical records," as defined in section 1910.20(c)(2), quoted above.

Section 1910.20(c)(6)(i) defines an "employee medical record" as:

a record concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel or technician, including:

(C) Medical opinions, diagnoses, progress notes, and recommendations .... (Emphasis added).

a. Wyman's Arguments

Wyman contended before the judge, as it does on review, that death certificates are not "employee medical records" because they: (1) do not concern the "health status employee," (2) do not contain "medical opinions," and (3) are distinguishable from medical records under state law.

Wyman continues to rely primarily on the deposition of Jerome L. Fielding, M.D., Medical Examiner for Worcester, Massachusetts. Dr. Fielding testified at his deposition, which was entered into the record, that he has completed death certificates in his role as Medical Examiner, as well as in his role of attending physician for the patients he has seen in private practice.

Addressing the general part of section 1910.20(c)(6)(i) that defines an "employee medical record" as "concerning the health status of an employee," Wyman relies on the testimony of Dr. Fielding that death certificates do not concern the "present health status of the person" because "the patient is already dead" and therefore not able to have a "health status."

Wyman further argues that death certificates do not meet the more specific part of the definition at section 1910.20(c)(6)(i)(C) because they are not "medical opinions." Wyman relies on Dr. Fielding's statement on direct examination that, although an attending physician would complete the "immediate cause" item on the certificate by supplying a "recognized classifiable medical diagnosis," the body was not always viewed, as would be necessary for a medical opinion. He further noted that, when the Medical Examiner is the physician completing the "immediate cause" item, the information is given in "relatively simple, non-medical terms."

In support of its contention that death certificates are distinguishable from medical records under state law, Wyman points to Dr. Fielding's statement that a death certificate is not a medical record because death certificates are public records available from the Town Clerk, and they therefore lack the confidentiality of medical records, which can be obtained by persons other than the patient only by court order. Wyman asserts that under the applicable Massachusetts statute, death certificates are public records, while medical records are not, citing Globe Newspaper Co. v. Boston Retirement Bd., 446 N.E.2d 1051 (Mass. 1983) (medical files not subject to mandatory disclosure under public records statute). Wyman cites court decisions of two other states that, according to Wyman, have ruled that death certificates are not medical records, under their respective state laws.

b. Secretary's Arguments

The Secretary asserts that she has proven that death certificates are "employee medical records" because they concern the "health status of an employee" and contain "medical opinions." To support her claim that death certificates concern the "health status of an employee," the Secretary notes that, on cross-examination during his deposition. Dr. Fielding agreed with the hypothetical proposition posed by the Secretary's counsel that "if a doctor says that Smith has died of diphtheria, that statement describes something that happened in the past to Smith while he was living."

Concerning whether death certificates are "medical opinions," the Secretary's counsel points to the following admissions of Dr. Fielding on cross-examination:

Q. When you complete a death certificate including the line concerning the cause of death in your role as Medical Examiner, that represents your medical opinion as to why this person died, isn't that true?

A. Yes.

Q. And when you complete the death certificate in your capacity as an attending physician that also represents your medical opinion as to why the person died?

A. Yes. (Emphasis added).

The Secretary also asserts that the state law cases Wyman relies on are distinguishable from this case because they concern exemptions from public disclosure laws, which are read narrowly, while the OSHA regulation here is remedial and must be read broadly to provide adequate access. She notes that what is at issue here is a very specific definition of "medical record" which none of the cited state decisions considered, and which should be read to permit broad access.

c. Judge's Decision

The judge rejected each of the grounds upon which Wyman relies. He agreed with the Secretary that a death certificate "does concern the health status of an employee" because the attending physician or medical examiner will determine as nearly as possible "the cause of death which was present necessarily when the person was alive." He concluded that the cause of death section of a death certificate is a record of the employee's health status "made ... by a physician," and thus qualifies as a "medical opinion" within the meaning of 29 C.F.R. 1910.20(c)(6)(i)(c), "regardless of how cursory" the doctor's examination or investigation might be.

The judge did not discuss Wyman's reliance on Massachusetts law and state court decisions. Instead, he noted that the records access rule is "all -inclusive" because:

[t]his rule's access provisions are designed to facilitate the detection of previously unrecognized occupational health problems: thus the broadest possible access ... must be provided or important information could be lost.

1980 Preamble, 45 Fed. Reg. at 35,263-64. The judge also stated that a "'record' is defined to encompass any item of information regardless of the form or process by which it is maintained," citing 1980 Preamble, 45 Fed. Reg. at 35,216, For all of those reasons, he concluded that death certificates are "medical records" under section 1910.20 (c) (6) (i) (c).

d. Discussion

We agree with the judge and the Secretary that death certificates are "employee medical records" under section 1910.20 (c) (6) (i) (C) because, as Dr. Fielding admitted on cross- examination in his deposition, they: (1) are records "concerning the health status of an employee ... made or maintained by a physician," and (2) contain "medical opinions."[[35]] We note that what is at issue here is a very specific definition of "employee medical record" at section 1910.20 (c) (6) (i).[[36]] The state court decisions that Wyman cites for the issue of whether death certificates are medical records do not consider this very specific definition in the OSHA records access regulations. Rather, they address only state law. Wyman's attempt to distinguish death certificates from medical records on the basis that the certificates eventually become part of the public record likewise must fail because the specific definition of "medical record" at issue here makes no reference to whether the record is open to the public or not.

We also note that inclusion of mortality studies within the category of "analys[e]s using....medical records" accords with OSHA's intent to include in the definition of "analysis using exposure or medical records" the following: "[c]harts, graphs, tables, industrial hygiene surveys, evaluations of disease experience, and other summaries and evaluations. . . ." 1980 Preamble, 45 Fed. Reg. at 35,260. The inclusion of such studies addresses OSHA's concern that "our ability to interpret disease patterns today is often frustrated by the lack of. . . such medical data as prior medical histories. . . and baseline physiological data." Id. at 35,258. Accordingly, we affirm the judge's finding that death certificates are "employee medical records" under the definition in section 1910.20(c)(6)(i).

2. The "Exhibits" and Hadis' "Working Conditions or Workplace"

Having proven that "Exhibits" 1A, 1B, and 1C are based on "employee medical records," the Secretary must next establish that the "Exhibits" "concern" Hadis' "working conditions or workplace" in order to show that access must be provided under section 1910.20(e)(2)(iii)(A).

The "Exhibits" describe different work areas in the plant and indicate that employees were divided for purposes of the studies according to the time they spent in "the forge area." Hadis' personnel record established that he worked in the Forge Department during some of the same time periods, and in some of the same jobs, as the employees studied. Based on these facts, the judge concluded that the "Exhibits" were analyses "concerning [Hadis'] working conditions or workplace."

Wyman contends that none of the death certificates or personnel records concerned Hadis' "working conditions or workplace," and, therefore, the analyses based on those records do not concern those conditions or that workplace. The Secretary urges affirmance of the judge, relying on the plain meaning of "workplace," as she did in her arguments noted above concerning section 1910.20(e)(2)(i)(C). She also refers to the cases mentioned in note 23 supra, as defining "working conditions" as "hazards." As discussed in that note, those decisions concerned a specific section of the Act that is not at issue here.

We conclude, as the judge did, that the Secretary has met her burden of showing that "Exhibits" 1A, 1B, and 1C concern Hadis' "working conditions or workplace." We reject Wyman's argument that none of the death certificates or personnel records concern Hadis' workplace or working conditions. Based on the facts that ''Exhibit" 1C covers Wyman's Forge Department employees who died in 1979 and 1980, and that Hadis worked in that shop and died in 1980, we conclude that Hadis may well have been among the anonymous employees who were the subjects of the study. Moreover,"Exhibit" 1A, which studied employees in the Forge Department who died over the years 1966-1975, and "Exhibit"1B. which studied employees in the Forge Department who died in 1976 and 1977, also concern Hadis' "working conditions or workplace because, according to his personnel record. Hadis worked in that shop from 1950 to1971, as well as in 1974, 1975, and 1977. Therefore, we find that all three "Exhibits" are analyses "concerning [Hadis'] working conditions or workplace."

Wyman contends that no violation has been established because the "Exhibits" are only statistical studies based on documents, none of which related to the conditions or place where Hadis worked. In support, Wyman notes that there is no indication that the author of the studies ever set foot in the Forge Department or interviewed anyone who had been there.

This argument has no merit. The regulation clearly includes an analysis based solely on research of documents, so long as the source documents themselves concern the employee's working conditions or workplace. We further conclude that these mortality studies involve a relationship between Hadis and possible exposure to target substances because they concern patterns of disease among Forge Department employees during much of the more than 20 years that Hadis worked there.

3. Summary

Based on our determinations that "Exhibits" 1A, 1B, and 1C are analyses based on "employee medical records," that they concern Hadis' "working conditions or workplace," and that they concern exposure possibly encountered by Hadis, we affirm Item 3 insofar as it alleged that Wyman violated section 1910.20(e)(2)(iii)(A) by denying Kehoe access to "Exhibits" 1A, 1B, and 1C.

B. "Exhibits" 2 and 2A

Wyman argues that the judge erred in finding that, by not providing Kehoe with access to "Exhibits" 2 and 2A, it was in violation of section 1910.20(e)(2)(iii)(A).

"Exhibit" 2 is an industrial hygiene survey and report, dated January 30, 1978, that studied factors that could have possibly caused the conditions identified in an earlier study of Wyman's employees. The "Exhibit" focussed on the forging operations at Wyman's plants in Worcester and Grafton, Massachusetts, and it gave primary attention to the materials and compounds used and the conditions in the forge departments in the 1950's and 1960's. The study contains tables showing results of personal and area air sampling for particular target substances in the Forge Department at Worcester, including Tables C-2 and C-8, which contain personal sampling results that identify the employee by general job title and operation, and Tables C-1 and C-2, which contain area sampling results. The results in these Tables are analyzed on specific pages in the "Exhibit."

"Exhibit" 2A is a memorandum, dated March 30, 1978, commenting on "Exhibit" 2. Referred to in this memorandum and appended to the back of it are two specific tables from "Exhibit" 2: Table C-1, which contains area sampling results; and Table C-3, [[37]] which contains personal sampling results, identified by general job title and operation, and area sampling results for target substances.

1. At Least Partial Basis in "Individual Employee Exposure ... Records"

To sustain her burden of proving the alleged violation with respect to "Exhibits" 2 and 2A, the Secretary had to show that each of the two "Exhibits" is an "analysis using exposure or medical records." As noted above, this term is defined at section 1910.20(c)(2) as:

[A]ny compilation of data, or any research, statistical or other study based at least in part on information collected from individual employee exposure or medical records ....

(Emphasis added). The Secretary maintains that she has met that burden because the "Exhibits" themselves refer to and incorporate "individual employee exposure ... records" including personal and area sampling results.

Wyman first contends here, as it did before the judge, that the word "individual" modifies "employee" rather than "records" and that, therefore, area sampling is not a proper basis for an analysis under the definition. Nor, in Wyman's view, is personal sampling such a proper basis unless it specifically identifies particular employees. In addition, Wyman argues that, even if the "Exhibits" here are considered to contain references to "individual employee exposure records",[[38]] "a careful reading of" "Exhibits" 2 and 2A would show that they do not meet the full definition above because the "analysis" in each of these documents was not, as the regulation requires, "based at least in part" on the sampling results.

In his decision, the judge rejected those arguments, describing the definition at section 1910.20(c)(2) as including analyses based on "practically any type of workplace monitoring including personal and area sampling." He concluded that the Secretary proved that the "Exhibits" are "analys[e]s using exposure . . . records" under the definition quoted above.

First of all, we note that both "Exhibits" contain and discuss personal sampling results. We conclude that, contrary to Wyman's unsupported contention, the language in section 1910.20(c)(2) does not require that for a study to be an "analysis using exposure or medical records," the personal samples upon which it is based must identify the employee by name. We note that OSHA has stated that it "anticipates that in practice most analyses would not identify specific employees . . ." 1980 Preamble, 45 Fed. Reg. at 35,274. Although that statement was more specifically directed to 29 C.F.R. 1910.20(e)(2)(iii)(B), which requires employers to "assure that personal identifiers are removed before access is provided" to "an analysis which reports the contents of employee medical records," than to an analysis that reports the contents of employee exposure records, it would be inconsistent to require the inclusion of personal identifiers in analyses based on exposure records while requiring their deletion from analyses based on medical records.

Having determined that "Exhibits" 2 and 2A are based in part on personal sampling results, we need not address Wyman's contention concerning area samples. It is sufficient under the definition at section 1910.20(c)(2) that the "Exhibits" are "based at least in part" on personal sampling results. We note that "Exhibits" 2 and 2A include and discuss the referenced area and personal sampling results. We therefore conclude that "Exhibits" 2 and 2A qualify as "analyses using exposure records" within the meaning of section 1910.20(e)(2)(iii)(A).

2. The "Exhibits" and Hadis' "Working Conditions or Workplace"

The next issue is whether the judge erred in concluding that the Secretary has met her burden of establishing a prima facie showing that "Exhibits" 2 and 2A are analyses "concerning the employee's working.conditions or workplace." "Exhibits" 2 and 2A concern the Worcester Forge Department, which was the shop or "workplace" of Hadis for nearly two and a half decades. The analyses contain many area sampling results, as well as personal sampling results, taken from that Department. For these reasons, we affirm the judge and conclude that the analyses concern Hadis' "working conditions or workplace."

3. Relation Between Hadis and Exposure

Wyman argues that the Secretary has not established the requisite relationship between Hadis' job duties and exposure to a toxic substance or harmful physical agent. it relies on the testimony of its witnesses Woodbury and Murphy, who stated that the Forge Department is very large, and that the environment and materials used there are "constantly changing." The judge concluded that the Secretary had established that Hadis' work routine did relate to exposure to harmful substances, based on the area samples analyzed in the "Exhibits."

We agree with the judge that the Secretary has established the necessary relation between Hadis' work duties and exposure to harmful substances. The "Exhibits" themselves are studies of employees' exposure to various target substances in the Forge Department for the time periods that cover most of Hadis' career in that department. Furthermore, some of the personal samples upon which the studies are based were taken from other employees, who worked in the Forge Department as "lubricators," or "oilers," positions Hadis had held during roughly that same time period. At least two tables, C-1 and C-2, contain samples taken in 1977. Hadis briefly worked in the Forge Department during that year, but not in the months that the samples were taken. We therefore conclude that the Secretary has proven that "Exhibits" 2 and 2A concern Hadis' working conditions or workplace because these "Exhibits" present detailed study and comment on aspects of the Forge Department for much of the time that Hadis worked there and for at least one job that Hadis held there.

4. Summary

Having found that "Exhibits" 2 and 2A, which each contain personal sampling results are "based at least in part on individual employee exposure...records," and that they concern Hadis' "working conditions or workplace," we affirm item 3 of the citation insofar as it alleges a violation of section 1910.20(e)(2)(iii)(A) based on Wyman's failure to provide the designated representative with access to "Exhibits" 2 and 2A. [[39]]

C. Summary of Item 3

Based on the discussions above, we affirm item 3 in the citation, which alleged an other- than-serious violation of section 1910.20(e)(2)(iii)(A) based on Wyman's denial of the requested access to "Exhibits" 1A, 1B, 1C, 2, and 2A.

V. Order

For the reasons set forth above, we vacate item 1 insofar as it alleged an other-than serious violation of section 1910.20(e)(2)(i) based on failure to provide the designated representative with access to "Exhibits" 3A, 7, 8C, and 11.

We affirm: (1) item 1 insofar as it alleged an other-than-serious violation of section 1910.20(e)(2)(i) based on failure to provide the designated representative with access to the employee exposure records identified as "Exhibits" 8A and 8B; (2) Item 2, which alleged an other- than-serious violation of section 1910.20(e)(2)(ii) based on failure to provide access to medical records of Emco and Hadis: and (3) item 3 which alleged an other-than-serious violation of section 1910.20(e)(2)(iii)(A) based on failure to provide the designated representative with access to the analyses using exposure or medical records that are identified as "Exhibits" 1A, 1B, 1C, 2, and 2A. [[40]] The Secretary proposed no penalty, and we assess none.

Edwin G. Foulke Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: December 20,1991


SECRETARY OF LABOR,

Complainant

v.

WYMAN GORDON COMPANY,

Respondent

and United Steelworkers of America,

Local 2285,

Authorized Employee
Representative

OSHRC Docket No. 84-785

DECISION & ORDER

Appearances:

For the complainant:

Albert H. Ross,
Regional Solicitor
U. S. Department of Labor

By:

David A. Snyder, Esq.

For the respondent:
David P. Grossi, Esq.

Bowditch & Dewey Worcester,

For the employee representative:

Jonathan P. Hiatt, Esq.
Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C.

Statement of Proceedings:

The Record Access rule, became effective in August 1980. This is a "regulation aimed primarily at possible detection, over a long period, of significant risks" caused by toxic substances or harmful physical agents not yet covered by health standards. Under this rule, workers are given a major role in the detection and solution of health problems faced in the workplace. Louisiana Chemical Ass'n. v. Bingham, 657 F.2d 777 (1981) at 784. Generally, the employees or their designated representatives are to be allowed access to medical and exposure records and the analysis of this data if any are maintained by their employers.

The representatives of the estates of two former employees of the respondent, Wyman-Gordon Company, a manufacturer of aircraft parts with offices in North Grafton, Massachusetts, requested the release of medical and other records concerning the decedents who may have been exposed to toxic substances. Respondent has refused access to some of these records.

Following an investigation by the Occupational Safety and Health Administration of the U. S. Department of Labor (OSHA or complainant) over the period June 27 to July 3, 1984, it issued[[1/]] a citation on July 16, 1984, alleging a non-serious[[2/]] violation of three regulations codified at 29 C.F.R. 1910.20(e)(2)(i); .20(e)(2)(ii)(B); and as amended on December 21, 1984, .20(e)(2)(iii)(A). Briefly these require an employer, upon request by an employee or his designated representative, to grant access to

1. Employee exposure records [1910.20 (e) (2) (i)];

2. Employee medical records

[1910.20 (e) (2) (ii) (B)]; and

3. Analysis using exposure or medical records concerning the employee's working conditions or workplace [1910.20 (e) (2) (iii) (A)].

Respondent by letter dated August 6, 1984, contested this citation. Stipulations of procedural facts and briefs were filed in January 1985, and a prehearing conference[[3/]] was held on February 13, 1985. Respondent sought to sever the proceedings, by motion filed January 2, 1985, to first determine preliminary issues such as

1) the standing of the employees' representatives;

2) its Fourth Amendment rights; and

3) whether the regulations are valid

before any of its records --described as voluminous--would be examined to determine if any are relevant, as that term is described in the subject regulations, and access is to be ordered.

Respondent agreed not to press its request for severance thus allowing all questions to be resolved in one decision and avoiding piecemeal appeals and possible remands.

The examination of respondent's records took place over a period from March to July 1985, and, following a second prehearing conference on July 12, 1985, further stipulations and issues to be tried were filed. Hearing was held on September 18, 1985, to develop the factual background and the meaning of those records which the parties disagree as to whether they are relevant and thus encompassed within the cited regulations. Post-hearing and final memorandums were filed by December 2, 1985, including the record of the deposition taken on October 4, 1985 (filed November 6, 1985) of Dr. Jerome L. Fielding, a medical examiner, on the question of whether a death certificate is a medical record within the contemplation of these regulations requirements.

The Basis of the Complaint and the Issues:

The deceased, Miklos Hadis and William G. Emco, both were employed by respondent for 30 years, each retiring in 1979. Both died before August 21, 1980. Their wives are administering their estates and each wife retained the same law firm to represent them authorizing it to gain access to the records here. (Stips. 8, 9, 10, 17, 18 and 19)

That law firm requested medical records, which respondent has, and employee exposure records and the analysis of those records, of which the respondent disputes the relevancy, concerning Mr. Hadis. (Stips. 11, 12, 14) Respondent did not allow access by the law firm to the records and analysis. (Stip. 15)

The same pattern appears concerning Mr. Emco (Stips. 23 and 24), but no request in writing was made by the law firm for the exposure and analysis records (Stip. 21) as it had done concerning Mr. Emco's medical records (Stip. 20). Oral requests were made, however (Stip. 22).

Neither the law firm nor OSHA advised respondent as to 1) the cause of the employees' deaths; 2) the relevance of the requested records; or 3) the purpose of the request or the use to be made of them.

Complainant has sought access to these records by the law firm from respondent. Respondent has denied this access. Complainant did not obtain a warrant and respondent demanded none. (Stips. 16, 25)

Approximately one month after the deaths of Messrs. Hadis and Emco in July 1980, the standards on which this action is based became effective, namely, August 21, 1980. See 29 C.F.R. 1910.20(j) .

The issues are

I) Do the regulations apply to the requests made concerning employees who died prior to the effective date;

II) Are respondent's Fourth Amendment rights a justifiable issue;

III )Are certain records "analyses" using exposure or medical records and have these been properly requested in the case of Mr. Emco; and

IV) If so, are the records relevant to Messrs, Hadis and Emco as that term is defined, or described, at. 29 C.F.R. 1910.20(e)(i)(A)-D).

Discussion and Conclusions:

I) As to the application of the regulation to these former employees complainant relies on the regulation's definition of "employee" as it applies to this situation, 29 C.F.R. 1910.20(c)(4):

"Employee" means a current employee, a former employee, or an employee being assigned or transferred to work where there will be exposure to toxic substances or harmful physical agents. In the case of a deceased or legally incapacitated employee, the employee's legal representative may directly exercise all the employee's rights under this section.

The former employees 'widows are "employees" under this definition as legal representatives; they may exercise their husbands' rights, and thereby authorize designated representatives [29 C.F.R. 1910.20(c)(3)] to gain access to the records, according to complainant.

Respondent argues that under the effective date provision, 29 C.F.R. 1910.20(j), no employer has an obligation to provide access respecting a former employee who died prior to that effective date, August 21, 1980. That provisions reads:

This section shall become effective on August 21, 1980. All obligations of this section commence on the effective date...

Therefore, respondent contends, the employee's right and, I suppose, any derivative right therefrom did not arise until August 21. Since both Messrs, Hadis and Emco retired and died before that date, no right to access may exist in their respective representatives.

Otherwise, respondent contends, every employer would be obligated to respond to every request on behalf of any person it ever employed. This is clearly contrary to section 29 U.S.C. 657(d) requiring that all information to be obtained form an employer under the provisions of the Act should be with minimum burden.

The difficulty in respondent's analysis is that the regulation--in exact terms--grants to the legal representative access by allowing that person to "directly exercise all of the employee's rights." This right is not derivative or dependent on an employee surviving the effective date as it would have been had the definition of "employee" not included the capacity of the legal representative, cf., Porter v. Resor, 415 F.2d 764 (1969), but the definition establishes the legal representative as an independent actor.

This course OSHA found necessary to pursue in its consideration of the regulations because

... The records of deceased and incapacitated workers are obviously relevant to occupational health research. Therefore, the rule explicitly applies to records relevant to deceased and legally incapacitated employees.

45 Fed. Reg. 35261.

This interpretation casts no more additional burden on employees than already created should the definition be read to restrict its application only to those current or former employees alive on the effective date; i.e., by allowing the legal representative direct access does not impose any retroactive effect.

OSHA intended to limit the regulation's scope and burden.[[4/]] No new records must be created; no obligation to monitor employee exposures are required; and no format of the records are prescribed. Just that should covered records be in existence, they must be preserved and access granted. See 45 Fed. Reg. 35257, and 29 C.F.R. 1910.20(b)(3) applying the regulation only to those records "made or maintained in any manner."

OSHA considered the point that the regulation appears to penalize conscientious employers (who compile these data bases) but did not accept it because of the main thrust of the regulation, namely, to detect occupational disease. And old, even ancient, records may be vitally important. OSHA intended to make as much use as possible of records going back beyond the enactment of the Act itself rather than take only a prospective approach thereby forcing a lapse of 20 or 30 years to recreate this data base. 45 Fed. Reg. 35258-59.

Thus, I conclude that the definition of "employee" does not exclude those legal representatives of employees who died prior to the effective date; and that 0SHA properly justified the retroactive effect of the regulation and minimized the burden imposed by this application. Daughters of Miriam Center for the Aged v. Mathews, 590 F.2d 1250 (1978) at 1259-60.

II) As noted above, respondent has raised the Fourth Amendment as a defense. The regulation, on its face, is sustainable against Fourth Amendment attack. Louisiana Chemical Association, et al. v. Bingham and Marshall, 550 F. Supp. 1136 (1982), affirmed 5th Cir., May 7, 1984, No. 83-4044, BNA 11 OSHC 1922. OSHA "must respect the Fourth Amendment rights of the plaintiff;" Louisiana Chemical Association, above, as these apply to documents and records, citing Marshall v. Barlow's, Inc., 436 U.S, 307 (1978) at 324, footnote 22.

When the OSHA Compliance Officer Robert Bak made his inspection on June 27, 1984, resulting in the issuance of this citation, he met with respondent's Manager of Safety and Industrial Health, Philip Woodbury, and showed him the complaint of the requestor for the data covered by 29 C.F.R. 1910.20 concerning the deceased employees.This complaint was not put into evidence here. He was told that respondent was fully aware of the requests for records and they were in the custody of respondent's lawyers. The record shows no further attempts by OSHA to inspect these records and, as a result, Mr. Bak, in the course of this inspection, examined no records whatsoever. (Tr. 16-17)

Mr. Woodbury testified that at no time was respondent given any information from either the attorneys representing the deceased's estates or OSHA concerning the background, work histories or workplaces of the deceased (Tr. 38).

Complainant stipulated that it seeks only that access to the data be given to the legal representatives (Stips. 16 and 25) and that, prior to the issuance of the citation, it never sought to review the records at issue (Complainant's Reply Brief, filed January 31, 1985, page 2). It is also stipulated that the purpose for the access was not told to respondent.

Before the arguments of the parties are reached concerning the extent to which the respondent's records are protected by the Fourth Amendment [[5/]] in what might be termed as a private search in contradistinction to one sought by a governmental agency, as argued, it must be determined first whether complainant has so perfected its position here to defend against these contentions.

In my opinion, the stage has not been set properly.

The regulation requires that an employer (1) grant access to employees or their representatives of (2) medical and other relevant records it maintains. If it fails to do so, it has violated the regulation and it may be cited. Thus, OSHA enforces the employees' right to access by requiring the data encompassed by the regulation to be made available.

Complainant argues that the standard was intended to be self-enforcing (Brief, January 15, 1985, page 8) and prior to the issuance of the citation, OSHA never determined, and freely admits this, whether respondent denied access to any record within the ambit of the regulation. But then, how could it be known whether a citation should issue. Mere and only denial of access does not appear to amount to a violation.

And contrary to complainant's position here, the preamble does indicate that the promulgation of this standard raises unanswered questions in the circumstance where an employer denies access to OSHA as opposed to an employee. "The rule may not be self-enforcing" 45 Fed. Reg. 25252. The future law, it goes on, will have to depend on the particular circumstances.

No argument is advanced why this situation should be treated differently than any other alleged violation of a regulation or standard. OSHA here is attempting to enforce a requirement that access to certain records be given to representatives of employees.

Yet, Compliance Officer Bak did not press to examine respondent's records, which he knew were in the custody of its attorneys to determine whether the denial of access was invalid. Had he so demanded and been refused, a warrant could have been sought, Marshall v. Barlow's, Inc., above, the records studied, and a citation issued as to that data upon which the parties disputed inclusion by the regulation.[[6/]]

That regulation is as specific as possible in delimiting the records accessible. See generally the definition section of the regulation 29 C.F.R. 1910.20 (c) and the outline of "relevancy" with regard to exposure records, 29 C.F.R. 1910.20 (e)(2)(i)(A)-(D). Decision on that question is relatively uncomplicated. But that point was not reached.[[7/]]

Respondent did not demand that a warrant be obtained (Stips. 16 and 25). It had as the facts show, no reason to because no search was sought. And it is not allowed within the statutory framework for the complainant to issue a citation based solely on an employee complaint although that may well serve as grounds for obtaining a warrant. 29 U.S.C. 658(a) requires and inspection or investigation as the basis for citations, and see Marshall v. Sun Petroleum Products, Co., 622 2.Fd 1176 (1980) at 1190 (end of footnote 3) where Judge Pollak, in the course of his dissent, points out that the legislative history of the Act shows that the Secretary is the channel created to guard against frivolous complaints and hence an inspection or investigation must be conducted. An inspection being required and not done here, it must follow that the issue of the respondent's Fourth Amendment rights is premature.

Further, since the inspection was incomplete, complainant would have no evidence to attempt to prove that the access denied by respondent was to records within the regulation's scope and, therefore, the citation must be dismissed as the order below provides.

The examination conducted during the course of this proceeding was in discovery to determine if any record would be within the regulation. It was not done as a substitute for the pre - citation inspection. Such a possibility and result was intentionally circumscribed at the prehearing conference of February 13, 1985. See the order following that conference. It was only for the sake of expedition that respondent agreed to the discovery procedure.

Finally, complainant's argument that respondent has no Fourth Amendment protections here because what is sought is a private search by the legal representative as opposed to a government inquiry does not appear to be well taken. (Complainant's Brief, January 15, 1985, page 12)

The Fourth Amendment protects against unreasonable intrusions by the government but not against the conduct of private individuals. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574 (1921). And the private search would be beyond the Amendment only if the private party is in no way either an instrument or agent to the government. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048-49 (1971).

But here there is no evidence of any private search although the legal representative knew of the existence of at least one document that might be within the scope of the regulations and subject to access (the Burgess Report). And OSHA's relief sought is not to permit a private inspection and search of respondent's records. Rather, it is to force respondent to give over access of whatever may be required under the regulation. That is necessarily the result if this citation is affirmed.

OSHA is serving its own purpose. It seeks compliance with the regulation designed, as all regulations and standards are, for the protection of the workforce. 29 U.S.C {syms} 641(b), (b)(1), and (b)(12). Thus ,this proceeding is one of pure governmental action and the full panoply of Fourth Amendment rights apply. It may not be masked behind the guise of a "private" search, that is, OSHA's claim that it has no interest in the records, only that access be afforded. In such a case, if no record is subject to the regulation and an employer denies access to the employee of OSHA, the citation would be affirmed because of the denial but the respondent would be required to do nothing.To avoid this, OSHA must allege that access was denied to allegedly relevant records. Denial of access alone is not actionable. Cf., Corngold v. U.S., 367 F.2d 1 at 5 (1966) where a statement from Taglavore v. U.S., 291 F.2d 262, at 266, is quoted, "[t]he violation of a constitutional right by subterfuge cannot be justified...."

The examination by OSHA of the disputed records was required and-- upon refusal by respondent to allow that--could only have been accomplished under the authority of a warrant.

In recapitulation:

I) Denial of access alone by an employer is not actionable since each subsection of the regulation requiring access specifies with as much particularity as is possible which records and under what conditions access may be allowed. Hence, each of the particular subsections (medical or exposure records or the analyses of these) by its terms requires--for the allegations of a citation to be properly framed--that (1) access was denied to (2) particular records.

Access to pages 14 through 33 is restricted to the Commission and reviewing courts pursuant to the Administrative Law Judge's order dated February 10, 1987 These pages have been omitted

if the documents are to be made accessible, they will have to be so adjusted.

ORDER

Based on the findings of fact and conclusions of law reached after considering the evidence and the parties' arguments and proposals, which to the extent shown are adopted or rejected as having insufficient support in the preponderance of the evidence or precedent, it is ORDERED that:

The citation, issued July 16, 1984, as amended on December 21, 1984, alleging nonserious violation of 29 C.F.R. 1910.20(e)(2)(i) [access to employee exposure records]; .20(e)(2)(ii)(B) [access to medical records by the designated representative]; and .20(e)(2)(iii)(A) [access to analysis of exposure or medical records] be and it is hereby vacated.

DAVID J. KNIGHT
Judge, OSHRC

Dated: February 13, 1987 Boston, Massachusetts



FOOTNOTES:
[[1]] Subsequent to this citation and complaint, the Secretary revised this regulation, as discussed below, and redesignated it "1910.20(e)(2)(i)(A)". Access to Employee Exposure and Medical Records: Final Rule, 53 Fed Reg. 38,140, 38,165 (1988) (1988 Preamble and"1988 Rule")

[[2]] The United Steelworkers of America, Local 2285, requested and was granted party status in January 1985. Although it was notified of the prehearing conferences and the subsequent evidentiary hearing, it did not appear at either. Nor has it filed a brief for this case.

[[3]] The judge granted Wyman's motion to restrict access to pages 14 to 33 of his decision because they contain material that he considered confidential. There is no need to restrict access to our decision here because we maintain the necessary confidentiality by not including any sensitive information.

[[4]] Wyman has stated that, unlike items 1 and 3, it has no arguments particular to item 2, and it will assure that access has been or will be provided to the medical records if its contentions regarding the entire citation are rejected.

[[5]]Commissioner Wiseman notes that, in his opinion, the purpose of the records access regulation is "to assist health research in discovering the causes of occupational disease." 1980 Preamble, 45 Fed. Reg. at 35,261. The request here is apparently for the purpose of private litigation, but the record is not entirely clear on this point. Commissioner Wiseman would question whether it is appropriate for the Secretary to prosecute an employer for failing to provide access to records where the purpose of the request was the furtherance of private litigation, particularly when the same information usually can be obtained through pretrial discovery.

[[6]]Wyman contends that because the records must be made available without any showing of need or relevance, such an obligation would be contrary to the spirit and letter" of section 8(d) of the Act, 29 U.S.C. 657(d), which provides that "[a]ny information obtained by the Secretary...shall be obtained with a minimum burden upon employers...."In response, the Secretary correctly notes that section 8(d) of the Act is irrelevant here because it concerns only information provided to the Secretary of Labor herself, the Secretary of Health and Human Services, or a State agency, not information provided by an employer to its own employees or their representatives.

[[7]] In its argument that the obligations would be limitless, Wyman appears to be attacking not only the access regulations at issue here, but also the regulations that set retention periods for records. As the Secretary notes, the requisite access is limited by the retention periods of with a few exceptions, at least: 30 years for employee exposure records and analysis using medical and exposure records (29 C. F. R. 1910.20 (d) (1) (ii) and (iii)); and duration of employment plus 30 years for employee medical records (29 C. F. R. 1910.20 (d) (1) (i)). Those periods were found to "pose little additional burden" in light of "existing widespread long term retention of records."1980 Preamble, 45 Fed. Reg at 35,271. Furthermore, the Secretary determined that the 30- year retention period "is reasonable in light of the latency periods associated with occupational diseases" Id. at 35,270 and is consistent with retention periods for recordkeeping under existing OSHA health standards and the Toxic Substances Control Act. Id. at 35,268.

[[8]] Section 9(a) of the Act provides:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of ... any standard ... or ... regulations ... he shall ... issue a citation to the employer.
The judge referred to the compliance officer's visit as an "inspection." However, because the compliance officer did not view any documents, we consider it to be more appropriately called an "investigation." As section 9(a) provides, the Secretary's authority to issue citations can be based on either. See H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 816-17 (5th Cir. 1981).

[[9]] Wyman claims that it had raised the issue itself in its prehearing memorandum and at the hearing. However, on the pages that it points to in its prehearing memorandum, Wyman only challenges the validity of the records access rules on the ground that they authorize warrantless searches that are unreasonable, in violation of the Fourth Amendment. Nor do the cited pages of the hearing transcript allege an insufficient investigation under section 9(a) of the Act. Rather, they concern only Wyman's argument that none of the records and analyses in question have been proven "relevant." Therefore, we find that the issue of the sufficiency of the investigation under section 9(a) of the Act was first raised in this case by the judge in his decision.

[[10]] We note that the record shows, in a document filed by Wyman in response to the Secretary's prehearing request, that when Kehoe sent Wyman a letter soon after its first request for access to the records and analyses, Kehoe specifically asked for a particular analysis using exposure or medical records of Wyman's employees. That analysis became one of the "Exhibits" in this case.

[[11]] The regulation provides that:
[t]he log and summary of all recordable occupational injuries and illnesses (OSHA No. 200) ...shall, upon request, be made available by the employer to any employee, former employee, and to their representatives....

[[12]]That regulation provides:
A covered employee who is required to be tested under subpart C [entitled "Post- Accident Toxicological Testing"] or D and who is taken to a medical facility for observation or treatment after an accident or incident shall be deemed to have consented to the release to FRA of the following ....

[[13]]The Secretary relies here, as she did in Monfort, on decisions of the United States Supreme Court finding that employers committed unfair labor practices by failing to disclose to the unions representing their employees information relevant to the collective bargaining process. E.g., NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967). As we stated in Monfort, those decisions are inapposite because they do not raise Fourth Amendment concerns and are based on the "give and take" of the collective bargaining process, which is not at issue in this case. 14 BNA OSHC at 2057-58, 1991 CCH OSHD at pp. 39,182-83. See NLRB v. Holyoke Water Pwr. Co., 778 F.2d 49, 52 (1st Cir 1985).

[[14]] The OSHA 101, entitled "Supplementary Record of Occupational injuries and Illnesses," requires much more information than the summary OSHA 200 such as detailed descriptions of what the employee was doing when injured, how the accident occurred, what the injury or illness was, and what object or substance injured the employee.

[[15]] The role of employers in assuring communication of safety and health information to employees is also addressed in various sections of the Act, including sections 6 (b) (B) (v), 6 (b) (7), 6 (d), and 9 (b), respectively 29 U. S. C. 655 (b) (6) (B) (v) (notice to employees of temporary variance order application), 655 (b) (7) (use of labels or other appropriate forms of warning). 655 (d) (notice to employees of application for variance rule or order), and 658 (b) (posting of citation).

[[16]] As mentioned in note 1 above, this regulation was revised in 1988. 1988 Rule, 53 Fed. Reg. at 38,165.

[[17]] As noted above, quotation marks have been placed around the "Exhibit" designation of the documents at issue because, by agreement of the parties and the order of the judge, these records were not admitted into evidence and are therefore not exhibits within the common legal meaning of that term.

[[18]] Among the revisions OSHA made to this regulation in 1988 were: (1) the deletion of subsection "(C)" and (2) the redesignation of subsection "B" as subsection (A)(2) and its expansion, to read:
In the absence of such directly relevant records, such records of other employees with past or present job duties or working conditions related to or similar to those of the employee to the extent necessary to reasonably indicate the amount and nature of the toxic substances or harmful physical agents to which the employee is or has been subjected ....
1988 Rule, 53 Fed. Reg. at 38,165. The Secretary explained that subsection "(B)" had been revised to avoid "potentially large numbers of duplicative records." 1988 Preamble, 53 Fed. Reg. at 38,155. She gave no specific explanation for deleting subsection "(C)."

[[19]] To address concerns of confidentiality expressed by the parties, we will use, throughout this decision, the term "the target substance" to describe the various substances for which sampling results are contained in the "Exhibits" at issue.

[[20]] In1988, the phrase "exposure to toxic substances or harmful physical agents" was removed from the general introductory provision, and words to the same effect were inserted in section 1910.20(c)(5)(i), (ii), and (iv). 1988 Rule, 53 Fed. Reg. at 38,163

[[21]] The term "employee" is defined at section 1910.20(c)(4) as: "a current employee, a former employee, or an employee being assigned or transferred to work where there will be exposure to toxic substances or harmful physical agents...."(Emphasis added)

[[22]] The Secretary also points to the hazard communication standard's definition of "workplace," at 29 C.F.R. 1910.1200(c), as "an establishment, job site, or project, at one geographical location containing one or more work areas." According to the Secretary, the records access rules should be construed together with the hazard communication standards, citing Consolidated Aluminum Corp., 9 BNA OSHC 1144, 1156, 1981 CCH OSHD 25,069, p. 30,976 (No. 77-1091, 1980)
We note that, unlike the regulations at issue here, the hazard communication standard includes in its definitions at section 1910.1200(c) different types of working spaces, such that "workplace" under that standard can mean something larger than the ''shop" interpretation that the Secretary advocates in this case. That is because the hazard communication standard has a separate term, "work area," which is defined in section 1910.1200(c) as "a room or defined space in a workplace where hazardous chemicals are produced or used, and where employees are present". See Super Excavators, Inc., 15 BNA OSHC 1313, 1316 n.5, 1991 CCH OSHD 29,498, p. 39,804 n.5 (No. 89-2253,1991).

[[25]] The Secretary claims that, in requiring that showing, the judge erred in "engrafting onto" the "relevancy" requirement of subsection (B) and (C) a separate requirement that is not there. As discussed below, we view the issue of "relevancy" under the regulation to be separate from the question of what relationship existed between the employee's job duties and exposure to the target substance.

[[26]] These "[s]cope and application" provisions read as follows:
(1) This section applies to each employer who makes, maintains, contracts for, or has access to employee exposure or medical records, or analyses thereof, pertaining to employees exposed to toxic substances or harmful physical agents (2) This section applies to all employee exposure and medical records, and analyses thereof, of [such] employees ....
(Emphasis added). See 1988 Rule, 53 Fed. Reg. at 38,163 (subsection (2) amended, as bracketed portion shows, while meaning from previous wording not changed). See also 1988 Preamble, 53 Fed. Reg. at 38,143 (noting that "[t]he 1980 rule applies to the exposure and medical records of all employees exposed to toxic substances and harmful physical agents").

[[27]] See, e.g., Richards v. United States, 369 U.S. 1, 11 (1962), cited in Simplex Time Recorder Co., 12 BNA OSHC 1591, 1594 n.6, 1984-85 CCH OSHD 27,456, p.35,569 n.6 (No. 82-12, 1985) (two paragraphs of National Fire Protection Association standard read to be consistent); Spot-Bilt, Inc., 11 BNA OSHC 1998, 2000-01 1984-85 CCH OSHD 26,944, p.34,551 (No. 79-5328, 1984) (purpose of assuring adequate exits "pervades section 1910.36, with section 1910.36(b)(4) construed accordingly).

[[28]] Because we have already found that the Secretary has not established that "Exhibit" 7 was "relevant" under subsection (B), we have already concluded that she has not established a violation based on that "Exhibit" and need not discuss the "Exhibit" here.

[[29]]We note that, in some cases, the Secretary's failure to prove employee access has been the dispositive factor leading to the Commission's vacating of the citation item at issue. E.g., Armour Food Co., 14 BNA OSHC 1817, 1824, 1987-90 CCH OSHC 29,088, p. 38,886 (No. 86-247,1990); Carpenter Contracting Corp., 11 BNA OSHC 2027, 2030-31, 1984-85 CCH OSHD 26,950, pp. 34,563-64 (No. 81-838, 1984).

[[30]]The judge's determination that Hadis worked in the job sampled in the Forge Department "during the sampling" is inconsistent with the fact noted above that his only work in 1978 and 1979 in the Forge Department was as a manipulator operator.

[[31]] Wyman and the Secretary had stipulated that "[b]ecause the lubricant is not identified, Respondent is unable to determine whether the lubricant was ever used in its Worcester workplace." However, that stipulation must be rejected in light of the "Exhibit" itself, which on it face states that the sampling was done in the "Worcester plant." The judge's determination focussed on the Forge Department, which was not mentioned by name in the "Exhibit."

[[32]]There is some testimony that, in general, hammers were operated in the Forge Department, but there is no evidence of record that Hadis' jobs would have placed him near the hammers.

[[33]] It could be that the Secretary's contention that Hadis "worked with hammers" is an extrapolation from information in another "Exhibit." See note 32 supra. As noted above, the parties and the judge agreed that the "Exhibits" are not evidence of record in this case.

[[34]] In 1988, the pertinent part of the first sentence in the definition was amended to read: "any compilation of data or any statistical study .... " 1988 Rule, 53 Fed. Reg. at 38,163.

[[35]] Moreover, we note that, as mentioned by the Secretary, even if the "Exhibits" here were found not to be based on "medical opinions, the definition of "employee medical record" at section 1910.20 (c) (6) (i) introduces the listing of different types of materials, including "medical opinions" at subsection (C), with the non-restrictive word "including," thereby indicating that other types of documents may qualify as "medical records."

[[36]] We agree with the Secretary's assertion that there is no requirement in the records access regulations that a medical examination take place before a document can be considered an "employee medical record." Therefore, that portion of Dr. Fielding's deposition indicating that a medical examination must precede the making of a medical record is irrelevant to the interpretation of the specifically defined term "employee medical record" at issue here.

[[37]] In the Commission's copy of "Exhibit" 2, there are copies of Tables C-1, C-2, and C-8, but no copy of Table C-3. Other pages and tables were apparently not included in the copy of "Exhibit" 2, that was given to the Commission.

[[38]] Wyman's Industrial Hygienist Murphy acknowledged at the hearing that "Table C" in "Exhibit" 2 contains some personal sampling results, not identified by employee name.

[[39]] Wyman requested before the judge that he permit certain portions of these ''Exhibits" to be deleted. The judge found that Wyman had not provided a sufficient reason for the deletions, and he rejected the reasons Wyman does not challenge the denial of that request on review, and we find no other reason to modify the judge's ruling with regard to this matter

[[40]] The judge noted in his decision that [t]he parties have agreed to certain deletions [from the "Exhibits"]. such as recommendations." However, Wyman must provide access to otherwise complete copies of the "Exhibits," for the items affirmed above

 

[[1/]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., citations are issued after inspection and may be contested within a 15-working day period. 29 U.S.C. 666(c) and (j).

[[2/]] A non-serious violation is one which has a relationship to safety and health but where there is not a substantial probability of serious physical harm or death. See 29 U.S.C. 666(c) and (j).

[[3/]] The United Steelworkers of America, Local 2285, the employee representative (not the designated representative of the deceased employees who are the executrixes of those estates), elected and was granted party status by order dated January 21, 1985, but it took no active part in the proceeding. See 29 U. S. C. 659 (c) and Commission rule 29 C. F. R. 2200.22 (b).

[[4/]] For example, OSHA was concerned with those employees whose exposure was only hypothetical.  Those were intended to be excluded by the final definition of "employee." 45 Fed. Reg. 35261, subtopic 4, "Employee."

[[5]/]Complainant insists that the possible use of the records in a workman's compensation case is not a defense to a denial of access (Complainant's Brief, filed January 15, 1985, page 10). The preamble to the regulation discusses this only as to the question of how long records should be retained and whether long- term retention is a burden on employers.
45 Fed. Reg. 35271. The question of whether such use is proper under the regulation is not addressed except by exclusion since the purpose is specifically stated to be the "detection, treatment and prevention of occupational diseases." 29 C.F.R. 1910.20(a).

[[6/]] The examination of the records that did occur was done under the aegis of discovery requirements and not by warrant or subpoena. See item 3 of the Order Following Prehearing Conference, February 13, 1985. The records sought specifically named the Burgess Report, described below (letter of Kehoe,et al., the legal representative, dated December 7, 1983) and all exposure records (same, dated January 13, 1984), among other requests.

[[7/]] In each item of the citation, the regulation requires that access be given for records "relevant" to the employee, 29 C.F.R. 1910.20 (e) (2) (i); or "'which the employee is the subject," 29 C.F.R. 1910.20 (e) (2) (ii); or "concerning the employee's working conditions or workplace," 29 C.F.R. 1910.20 (e) (2) (iii) (A).