SECRETARY OF LABOR,

Complainant,

v. MONFORT OF COLORADO, INC.,

Respondent. 

PAMELA NELSON, Intervenor.

OSHRC Docket No. 87-1220

DECISION

BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

Former Commission Administrative Law Judge William R. Mullins affirmed a citation issued to Monfort of Colorado, Inc. ("Monfort") for a willful violation of 29 C.F.R. § 1904.7(b)(1).[[1/]]  That regulation requires an employer to make available its logs and summaries of occupational injuries and illnesses, which are recorded on OSHA No. 200 forms ("OSHA 200's").  These forms must be made available, upon request, to employees, former employees, and their representatives, without a search warrant or its equivalent.

I. Background

Monfort, a company headquartered in Greeley, Colorado, operates a meat packing plant in Grand Island, Nebraska, where Pamela Nelson was employed from September 1982 through March 1986.  In late January 1987, Nelson, who was then an employee of the United Food and Commercial Workers International Union, sent a letter to Monfort's Grand island plant, requesting copies of Monfort's OSHA 200's for the years 1982 through 1986.  Nelson later testified that she sought the OSHA 200's to learn more about the back and neck injury that she incurred while working at the Grand Island plant.  In early March 1987, after Monfort failed to comply with her request, Nelson filed a written complaint with the Occupational Safety and Health Administration ("OSHA").  The OSHA Area Director sent Monfort a letter giving notice of Nelson's complaint, as well as three subsequent letters asking that the OSHA 200's for 1982 through 1986 be turned over to Nelson, before issuing a citation alleging that Monfort was in willful violation of section 1904.7(b)(1).

Monfort does not dispute that it failed to comply with the request.  Bruce Holton, Monfort's personnel manager, who initially received the request, testified that he "felt at the time that it was a union request.  I in fact denied the request .... " That argument was reiterated by Monfort in its response to the OSHA Area Director's first letter notifying it of the complaint.  In its response to a subsequent letter from the Area Director, Monfort asserted that for it to provide the OSHA 200's to Nelson would be to violate section 8(a)(2) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(2) , which prohibits giving unlawful assistance to unions.  Also in that letter, Monfort argued for the first time that, in authorizing warrantless searches, section 1904.7(b)(1) violated its privacy interest in its OSHA 200's, which it asserted is protected by the Fourth Amendment.

Although he affirmed the violation as willful, Judge Mullins did not address Monfort's contention that the regulation violated the Fourth Amendment.  He concluded that he lacked the authority to decide whether the regulation violated the Fourth Amendment, citing Buckeye Industries, Inc. v. Secretary, 587 F.2d 231, 235 (5th Cir. 1979).[[2/]]  He assessed a penalty of $100.  He found that Monfort had a "good faith argument" that the regulation violated the Fourth Amendment.

The issues on review, which the parties addressed in their briefs and at oral argument before the Commission on November 20, 1990, are:  (1) whether the Fourth Amendment applies to section 1904.7(b)(1); (2) if the Fourth Amendment applies, whether it is violated by that regulation; and (3) if the regulation does not violate the Fourth Amendment and Monfort is found in violation of section 1904.7(b)(1), whether the violation was willful.

II. The Fourth Amendment Analysis

We first consider whether section 1904.7(b)(1) violates the Fourth Amendment because it authorizes employees, former employees, and their representatives to search (by examination and copying) the requested, applicable OSHA 200's without a warrant or its equivalent.  The issue is one of first impression.   Because there can be no violation of the Fourth Amendment if it does not apply to the factual circumstances, we now examine whether the Fourth Amendment applies in this case.

A. Whether the Search Authorized by the Regulation Is Private

The Fourth Amendment protects persons against only governmental searches, not private ones.  E.g., Skinner v. Railway Labor Executives' Association ("Skinner v. RLEA"), 489 U. S. 602, 613-14, 109 S. Ct. 1402, 1411 (1989).  The first question presented here is whether the search authorized by section 1904.7(b)(1) is private or governmental. The regulation authorizes one private party, upon its request, to examine and copy applicable OSHA 200's belonging to another private party.  The Secretary and Pamela Nelson, who was granted intervenor status in this case, contend on review, as they did before the judge, that the Fourth Amendment does not apply to this case because the search here was by a private individual, not the government.  The judge rejected this argument, noting that Nelson's right to inspect the OSHA 200's was created by the government.

In Skinner v. RLEA , the Court considered the constitutionality of regulations authorizing, but not requiring, railroads to administer drug tests to employees in particular circumstances.  The Court stated that "[a]lthough the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government."  489 U.S. at 614, 109 S. Ct. at 1411.  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).  489 U.S. at 614, 109 S. Ct. at 1411.

The Secretary asserts that an individual who has conducted a search is not an agent of the government so long as the search was not conducted in collusion with or at the behest of government officials, citing, among other cases, United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984).  The Secretary contends that Nelson requested the OSHA 200's on her own, without the participation or knowledge of any government official.  The Secretary submits that OSHA has no reason to act in collusion with employees who request OSHA 200's, because it has access to the same records under a separate regulation.  See note 5 infra.  She contends that a search by individuals may retain its private status even though supported by government action.  The Secretary relies on cases in which the Supreme Court found 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., National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 568 (1967).

We find no merit in the Secretary's arguments that the search was private.  In finding that the drug tests at issue were not private searches, the Court in Skinner v. RLEA relied on language in the preamble to the final regulations stating that authority to test was "conferred for the purpose of promoting the public safety" and that the recipient of this authority cannot in any way divest itself of, or compromise, its authority by contract.  489 U.S. at 615, 109 S.Ct. at 1411-12.  The language of section 1904.7(b)(1) requiring the employer to make the OSHA 200's available has a similar purpose.  It is intended 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 assuring "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 job.  Sections 2(b) and 2(b)(7) of the Act, 29 U.S.C. §§ 651(b) and (b)(7).

The Secretary referred to this policy of informing employees of job hazards several times in the preamble to the final version of section 1904.7(b)(1).  She emphasized "the employee's basic right to know about workplace hazards," and, in a very similar vein to the preamble language quoted by the Court in Skinner v. RLEA, she noted that the authority to search granted by the regulation cannot be bargained away.  43 Fed. Reg. 31,324, 31,325, 31,327 (1978).   The Secretary also stated that by promulgating section 1904.7(b)(1), she was performing the role that Congress set forth for her in the Act.[[3/]]  43 Fed. Reg. at 31,327.

The cases cited by the Secretary involving the failure of employers to disclose information in violation of the NLRA do not raise Fourth Amendment concerns.  They are expressly based on the "give and take" of the collective bargaining process, which is not involved here.  See National Labor Relations Board v. Holyoke Water Power Co., 778 F.2d 49, 52 (1st Cir. 1985) (less weight due employer's rights when employer subject to duty to bargain).  Therefore, we conclude that they provide no support for the Secretary's claim that the search was a private one.

The Secretary also relies on a number of federal regulations that require employers to disclose information to private individuals without any warrant requirement, including 15 U.S.C. § 1681g (credit reporting agency must disclose to consumer his or her own credit history upon request, enforced by Federal Trade Commission and other agencies), 42 U.S.C. § 11044 (disclosure to public [through state or local authorities] of emergency response plans, material safety data sheets, and other documents that companies have filed, as required, enforced by Environmental Protection Agency), and OSHA's own hazard communication standard at 29 C.F.R. § 1910.1200.  The Secretary cites no authority indicating that those regulations have been upheld as private searches against Fourth Amendment challenges.  If the Secretary is suggesting that adverse implications for other statutory schemes would result if the Fourth Amendment is found to apply here, such a suggestion is irrelevant.  In Marshall v. Barlow's, Inc., 436 U.S. 307, 321-22, 98 S.Ct. 1816, 1825 (1978), the Secretary argued before the Court that requiring a warrant for OSHA inspectors would mean that warrantless search provisions in other regulatory statutes would also be constitutionally infirm.  The Court rejected that argument, stating that ''[t]he reasonableness of a warrantless search . . . will depend upon the specific enforcement needs and privacy guarantees of each statute."  Id.

Based on the considerations above, we conclude that the search authorized by the regulation is governmental and that further inquiry into the applicability of the Fourth Amendment is therefore necessary.

B. Whether the Reasonable Reporting Requirement Exception Applies

The Secretary also contends that the regulation falls within the reasonable reporting requirement exception to the Fourth Amendment's warrant requirement, citing California Bankers Association v. Shultz, 416 U.S. 21, 57-67, 94 S.Ct. 1494, 1515-20 (1974).  That exception permits the government to compel disclosure of business records through mandatory reporting requirements.  In California Bankers, the court specifically noted that the exception only arises when the reporting is to the government.  Section 1904.7(b)(1) requires disclosure of information to a private individual, more specifically, an employee, former employee, or their representative, not to the government.  Therefore, the reasonable reporting requirement exception does not apply here.[[4/]]

C. Whether There Was a Reasonable Expectation of Privacy

We next consider whether Monfort had a reasonable expectation of privacy in the OSHA 200's.  The Supreme Court has declared that, for Fourth Amendment purposes, "[a] search occurs when 'an expectation of privacy that society is prepared to consider reasonable is infringed.'  "Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782 (1985) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656 (1984)).  Therefore, before considering whether a search violates the Fourth Amendment, it is necessary to determine whether the "subjective expectation of privacy" that an individual may claim in the object of the search is one that "society accepts as objectively reasonable."  California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628 (1988) (no reasonable expectation of privacy in contents of opaque garbage bags at street-- "common knowledge" that such bags readily accessible to the public).

Monfort contends that it has a reasonable expectation of privacy in its OSHA 200's, which two courts and the Commission recognized in Taft Broadcasting Co., Kings Island Division ("Kings Island"), 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 Electric Co., 13 BNA OSHC at 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).

The Secretary contends that Monfort has no reasonable expectation of privacy in its OSHA 200's.  She urges the Commission to overrule its decisions in Kings Island, Emerson Electric, and A. B. Chance, and to follow the Fourth Circuit's decision in McLaughlin v. A.B. Chance Co. 842 F.2d 724, 727 (4th Cir. 1988), where the court found that the employer has a "diminished expectation of privacy [in its OSHA 200's] to the extent of the regulatory intrusion," because the OSHA 200's are records that are required to be kept and are subject to inspection.

1. Kings Island Distinguishable

The decisions upon which Monfort relies, Kings Island, Emerson Electric, and A.B. Chance, are distinguishable from this case in two important respects: the degree of the intrusion; and the party seeking the records.  In Kings Island and its progeny, a different regulation, 29 C.F.R. § 1904.7(a),[[5/]] was at issue.  That regulation requires an employer to provide access to its OSHA No. 101 forms ("OSHA 101's"), as well as to its OSHA 200's.  This access must be provided to any authorized representative of the Secretary.

The additional requirement of disclosure of OSHA 101's is significant when that form is compared with the OSHA 200's.  The OSHA 200 is one sheet of paper, with lines for entries on one side, and instructions on the back.   The side for entries is divided almost in half.  For each occupational death, nonfatal occupational illness, and nonfatal occupational injury,[[6/]] the employer is required to provide on the left side of the page the employee's name, job title or brief description of duties, department, and brief description of injury or illness.  There is enough space for 18 separate injuries or illnesses.  On the right side of that page, which must be posted by February 1 and remain in place until March 1 of each year, the employer places checks and numbers in the appropriate boxes to indicate the extent and outcome of injuries, as well as the type, extent, and outcome of illnesses.

The OSHA 101, entitled "Supplementary Record of Occupational Injuries and Illnesses," also consists of one sheet of paper with lines for entries on the front side and instructions on the back.  However, as the Commission noted in Kings Island, 13 BNA OSHC at 1141, 1986-87 CCH OSHD at p. 36,485, the OSHA 101 is much more detailed than the OSHA 200, with each page (rather than each line, as on the OSHA 200) devoted to a single incident of injury or illness. The OSHA 101 requires employers to report much more information on the affected employee, such as the Social Security number, home address, and age.  The more probing nature of the questions on the OSHA 101 is also shown in the questions that the Commission quotes at length in Kings Island, 13 BNA OSHC at 1141, 1986-87 CCH OSHD at pp. 36,485-86:

12. What was the employee doing when injured? (Be specific.  If he was using tools or equipment or handling material, name them and tell what he was doing with them.)

13. How did the accident occur?  (Describe fully the events....Name any objects or substances involved....Give full details on all factors which led or contributed to the accident....)

14. Describe the injury or illness in detail....

15. Name the object or substance which directly injured the employee....

The employer is also asked to provide the name and address of the physician and, if the employee was hospitalized, the name and address of the hospital.

Section 1904.7(a), the regulation involved in Kings Island, directs that the records have to be disclosed to an agent of the government.   It does not impose any restrictions on the requesting compliance officer's inspection and copying of the specified records other than that any inspection and copying must be done "for the purpose of carrying out the provisions of the [A]ct."   The Commission concluded that this language gave compliance officers " 'almost unbridled discretion' " to determine who and when to search.  13 BNA OSHC at 1145-46, 1986-87 CCH OSHD at 36,490.

Here, the requesting parties are private individuals: employees, former employees, or their representatives.  Under section 1904.7(b)(1), they are entitled to request the OSHA 200's only "for any establishment in which the employee is or has been employed," and then only for up to the past five years.  See 29 C.F.R. § 1904.6.  They do not have the open-ended discretion afforded the government representatives under section 1904.7(a).  Section 1904.7(b)(1) also puts less of a burden on the employer, who is not required to produce the records immediately, as required by section 1904.7(a), but need only disclose them at reasonable times and in a reasonable manner.

We conclude that the OSHA 101, rather than the OSHA 200, constituted the basis for the Commission's statement in Kings Island that "[i]njury records maintained in accordance with OSHA regulations contain important details about an employer's operations and manufacturing processes that even conscientious executives might not freely reveal to outsiders."  13 BNA OSHC at 1141, 1988 CCH OSHD at p. 36,485.  Because the Secretary required the disclosure of OSHA 101's, as well as OSHA 200's, in Kings Island, the intrusion into the employer's privacy interests in that case was far greater than the minimal intrusion here.

2. Posting Requirement

There is also little doubt that when an employer posts each annual summary of occupational injuries and illnesses from the OSHA 200's[[7/]], whatever expectation of privacy the employer had in its OSHA 200's is considerably diminished. "There can be little expectation of privacy in information that is available to anyone observing the employer's bulletin board."  McLaughlin v. A.B. Chance Co., 842 F.2d at 728.

In addition to observing the posted annual summary, employees presumably would have observed in the workplace at least some of the occurrences that led to the injuries and illnesses that are the subject of the posted summary, and that are listed on the unposted left side of the OSHA 200.  As the Court stated in Marshall v. Barlow's, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 1821 (1978), "[w]hat [employees] observe in their daily functions is undoubtedly beyond the employer's reasonable expectation of privacy."  There is also no reason to conclude that an employer's privacy expectation in its OSHA 200's is greater when an employee, former employee, or their representative requests them, than it is when the annual summary is posted.  See McLaughlin v. A.B. Chance, 842 F.2d at 728.   Even though there is a difference between the information on the summary part of the OSHA 200 and that contained on its unposted part, the information in both parts is minimal.

We therefore conclude that Monfort has no reasonable expectation of privacy in its OSHA 200's when access is sought under section 1904.7(b)(1).   Because a reasonable expectation of privacy must be present in order to invoke the protections of the Fourth Amendment, it is clear that the Fourth Amendment does not apply to the search authorized by section 1904.7(b)(1).  As we noted at the beginning of this discussion, there can be no violation of the Fourth Amendment if it does not apply to the factual circumstances.  Accordingly, we find that section 1904.7(b)(1) does not violate the Fourth Amendment by authorizing former employees to have access to OSHA 200's without a warrant or subpoena.

As noted above, Monfort does not dispute that it failed to comply with the terms of the cited regulation in denying Nelson's request.  Therefore, we find that Monfort's failure to make its OSHA 200's available to Nelson was a violation of section 1904.7(b)(1).

III. Willfulness of the Violation

A willful violation is one committed with intentional, knowing, or voluntary disregard for the requirements of the Act, including the regulations promulgated thereunder, or with plain indifference to employee safety.  E.g., Calang Corp., 14 BNA OSHC 1789, 1791, 1990 CCH OSHD ¶ 29,080, p. 38,870 (No. 85-319, 1990).   In order to show intentional disregard of a regulation, there must be evidence that the employer knew of an applicable regulation prohibiting the condition and that it consciously disregarded it.  E.g., Williams Enterprises, Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987).  However, a violation is not willful if the employer shows that it had a good faith opinion that the cited condition did not violate the regulation.  Mel Jarvis Construction Co., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD ¶ 25,713, p. 32,060 (No. 77-2100, 1981).  To determine whether an employer held such a good faith opinion, the Commission has considered whether the employer's belief concerning a factual matter or the interpretation of a regulation was reasonable under the circumstances.  Id.

In this case, it is undisputed that Monfort knew of the requirements of section 1904.7(b)(1) when it violated the regulation by failing to make the OSHA 200's available to Nelson upon request.  Bruce Holton, Monfort's personnel manager, who initially received Nelson's request, testified that he read Nelson's request, which specifically states that the request is made pursuant to "29 CFR 1904.7."   Holton stated that he knew that the OSHA regulations granting employees access to their "health files" were contained in "29 CFR."  It is also clear from the record that Monfort consciously disregarded the regulation at the outset.   Holton testified that, after receiving Nelson's request through the mail and reading it, he denied it, and then forwarded the letter to Monfort's corporate office, which told him that any further correspondence would be handled by counsel.

Monfort argues in its defense that it had a good faith opinion that the request was invalid.  Monfort's personnel manager Holton testified that when he denied the request at the outset, he "felt at the time that it was a union request. " In response to the OSHA Area Director's notice to Monfort of Nelson's complaint, Monfort (through its counsel) reiterated that "union request" argument in its first letter of March 30, 1987, to the Area Director.   In its second letter to the Area Director, dated April 29, 1987, Monfort presented a legal basis for that argument, asserting that providing the OSHA 200's to Nelson would violate section 8(a)(2) of the National Labor Relations Act,[[8/]] which prohibits giving unlawful assistance to unions.[[9/]]  It was not until this second letter to the Area Director that Monfort for the first time raised the argument that section 1904.7(b)(1) violated its privacy interest in its OSHA 200's, citing the Commission's then-recent decision in Kings Island for the proposition that this privacy interest is protected under the Fourth Amendment.  Monfort presented both its NLRA and Kings Island contentions before the judge.

Judge Mullins stated that the Commission "has held under almost identical facts that this type [of] violation is properly classified as [w]illful," citing RSR Corp., 11 BNA OSHC 1163, 1983-84 CCH OSHD ¶ 26,429 (No. 79-3813, 1983), aff'd, 764 F.2d 355 (5th Cir. 1985).  He did not address Monfort's arguments against willfulness.  However, in finding that the proposed penalty was excessive, he did rely on what he called Monfort's "good faith argument" that the cited regulation violated its constitutionally protected right to privacy in its OSHA 200's.

Monfort submits that the judge erred in finding the violation to be willful, because it acted in good faith on the advice of its counsel in not providing the OSHA 200's.  Monfort claims that it believed that:  it would violate section 8(a)(2) of the NLRA if it provided the OSHA 200's; and the regulation authorizing Nelson's access request violated its expectation of privacy in the records.   It asserts that it relied on the Commission's recognition in Kings Island that such records were protected by the Fourth Amendment.  Monfort also contends that the judge was incorrect in concluding that the facts in RSR Corp. were similar to the facts here.

The Secretary argues that the judge correctly found the violation to be willful.  She asserts that the good faith defense to willfulness articulated by the Commission in Mel Jarvis is limited to beliefs concerning factual matters and interpretations of OSHA requirements, and does not extend to the constitutionality of a regulation.  However, the Secretary cites no case law in support of this claim, and we find no merit in the argument.

The willfulness charge relates to the employer's underlying state of mind when it committed the violation.  See General Motors Corp., Electro-Motive Division, OSHRC Docket Nos. 82-630, 84-781, and 84-816 (February 15, 1991), slip op. at p. 15.  In this case, we must consider whether Monfort had a reasonable, good faith belief in mind when it refused to turn over the OSHA 200's to Nelson.

Monfort's initial reason for refusing Nelson's January 1987 request for records was that the request was invalid because it was a "union request."  Based on the facts and the plain meaning of the regulation, that belief asserted by Monfort was unreasonable.  According to the plain language of the regulation, employers must provide the OSHA 200 logs to any former employee, a category that clearly included Nelson.  Moreover, Nelson presented unrebutted testimony that she wanted the OSHA 200's for a purpose recognized in the preamble to section 1904.7(b)(1)--to find out more about the injury that she experienced while working in Monfort's Grand Island facility.  She also testified that she was not involved in organizational activities at the Grand Island plant during the time in question.  We therefore conclude that Monfort's purported belief that it was denying an impermissible "union request" was unreasonable, based on the facts.

Moreover, Monfort's assertion that it would violate section 8(a)(2) of the NLRA if it provided the OSHA 200's is unreasonable based on the law.  Monfort cites no cases in support of its claim that the NLRA would be violated. Indeed, relevant federal labor law precedent cuts against Monfort's argument.  For example, in Louisiana Chemical Association v. Bingham, 550 F. Supp. 1136 (E. D. La. 1982), aff'd, 731 F.2d 280 (5th Cir. 1984), the OSHA record access rule was challenged as invalid because the subject of the rule was under the exclusive jurisdiction of the National Labor Relations Board.  The court stated that "[s]uch an argument simply reaches too far."  550 F.Supp. at 1144.  According to the court, if that argument were "pressed to the extreme, all OSHA functions could be subsumed into the jurisdiction of the NLRB."  Id.  The court concluded that, whatever effect the OSHA rule might have on the NLRA, the result would be "simply incidental to fulfilling the statutory goal of promoting healthful working conditions." Id. at 1145.  See United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) (medical removal protection portion of OSHA's lead standard not in conflict with federal labor-management law, even though such protection can be subject of collective bargaining).  Thus, Monfort's reliance on the NLRA argument was not reasonable based on the law.

Monfort also relies on its "belief" that the regulation violated its Fourth Amendment privacy interest in its OSHA 200's. However, Monfort first raised this claim in its April 29, 1987, letter to the OSHA Area Director, more than two months after it refused to comply with Nelson's request.[[10/]]  As noted above, willfulness is based on an employer's state of mind when it committed the violation.  Here, that was when Monfort denied Nelson's request.

The evidence suggests that Monfort's reasonable expectation of privacy argument was an afterthought.  In a "Memorandum" authored by Holton, dated March 18, 1987, the same day the Commission's Kings Island decision was issued, he identified the requestor of the records as "a representative of the United Food and Commercial Workers Union, who was formerly employed by Monfort."  The memorandum gave no reason for denying the records, but only stated that the request was denied on the advice of counsel.  There was no reference in the memorandum to the right of privacy or the Fourth Amendment.

We reject Monfort's argument that the judge erred in relying on RSR Corp., in which the Commission found that a violation of section 1904.7(b)(1) was willful, and the Fifth Circuit affirmed that determination.  In RSR Corp., the employer defended against the allegation of willfulness based on an unsupported claim that access to (the left, nonsummary, side of) the OSHA 200's was governed by discovery proceedings under the Federal Rules of Civil Procedure, rather than by section 1904.7, because the requesting employee was acting in furtherance of a private lawsuit.   764 F.2d at 367 (5th Cir.); 11 BNA OSHC at 1178, 1983-84 CCH OSHD at p. 35,556 (Commission). Moreover, after it knew that the private lawsuit had been dismissed, RSR Corp. persisted in denying access to the records.  764 F. 2d at 367 (5th Cir.); 11 BNA OSHC at 1179, 1983-84 CCH OSHD at p. 35,556 (Commission).  The Fifth Circuit and the Commission considered those elements to negate any good faith defense, and, instead, found them to be determinative of willfulness.

Here, Monfort makes unsupported claims that Nelson's request was invalid because it was a "union request" and providing the OSHA 200's would mean violating the NLRA.  Furthermore, even after Nelson gave unrebutted testimony that she needed the records for her own health concerns, Monfort still did not give her access to the records.  In light of these similarities, we agree with the judge that RSR Corp. is applicable here.

Based on the factors above, we conclude that Monfort intentionally disregarded the regulation and did not act on a good faith belief, reasonably held, that its refusal to produce the records conformed to law. Therefore, we find that Monfort's violation of section 1904.7(b)(1) was willful.

In her motion for leave to supplement the record, the intervenor seeks inclusion of a document in the record, which she contends demonstrates that Monfort's refusal to comply with the regulation was not based on what Monfort claims was consistently demonstrated good faith.  In Chesapeake Operating Co., 10 BNA OSHC 1791, 1792, 1982 CCH OSHD ¶ 26,142, p. 32,915 (No. 78-1353, 1982), the Commission discussed the factors involved in considering motions to reopen the record, particularly noting that" 'the time when the motion is made, the character of the additional testimony, and the effect of granting the motion are pertinent factors for consideration' "  (quoting 6A Moore's Federal Practice ¶ 59.04[13] (1979)).  In light of these factors, especially the eleventh-hour filing of the motion and our decision herein, concluding on the basis of the existing record that the violation was willful, we deny the intervenor's motion.

IV. Penalty

In determining an appropriate penalty, in accordance with section 17(j) of the Act, 29 U.S.C. § 666(j), we must consider the size of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations.  We have considered all of these factors.  We particularly note that what is most important in this case is that the purpose of the regulation, to assure that the employer provide the requested information to its former employee, be accomplished.   Based on these factors, we assess, as the judge did, a penalty of $100 for the willful violation of section 1904.7(b)(1).

V. Order

We conclude that Monfort has no reasonable expectation of privacy in the OSHA 200's that it is required to provide under section 1904.7(b)(1) to employees, former employees, or their representatives.  Therefore, the Fourth Amendment does not apply and is not violated by section 1904.7(b)(1).  Finally, we find that Monfort violated section 1904.7(b)(1) and that its violation was willful.   We assess a penalty of $100.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: February 26, 1991

SECRETARY OF LABOR,

Complainant,

v.

MONFORT OF COLORADO, INC.,

Respondent.

OSHRC DOCKET No. 87-1220

APPEARANCES:

For the Complainant:
H. Alice Jacks, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri

For the Respondent:
William H. Bruckner, Esq., Bruckner & Sykes, Houston, Texas

For Limited Intervenor Pamela Nelson:
Peggy A. Hillman, Esq., Chicago, Illinois and
Carol L. Clifford, Esq., United Food & Commercial Workers international Union, AFL-CIO, Washington, D.C.

DECISION AND ORDER

Mullins, Judge:
This proceeding was brought before the Occupational Safety and Health Review Commission (Commission) pursuant to §10 of the Occupational Safety Act of 1970, 29 U.S.C §661 et seq. (" the Act").  The Secretary of Labor (complainant) issued a citation to Monfort of Colorado Inc., (respondent) alleging a "willful" violation of 29 C.F.R. §1904.7(b)(1) which provides:

The log and summary of all recordable occupational injuries and illnesses (OSHA No. 200) (the log) provided for in §1904.2 shall, upon request, be made available by he employer to any employee, former employee, and to their representatives for examination and copying in a reasonable manner and at reasonable times.  The employee, former employee, and their representatives shall have access to the log for any establishment in which the employee is or has been employed.

The complainant seeks a penalty of $10,000.00.

For the reasons stated below, the undersigned finds a Willful violation of the cited standard and assesses a penalty of $100.00.

Discussion

Facts

The facts of this case are undisputed.  Ms. Pamela Nelson, was employed by respondent at its Grand Island, Nebraska plant for approximately 4 1/2 years up to March of 1986.  In April of 1986 Ms. Nelson became employed fulltime by the United Food and Commercial Workers union (UFCW), an affiliate of the AFL-CIO.   This union does not represent the employees of respondent although it apparently has made attempts to do so. (Tr. 108)

On January 31, 1987, Ms. Nelson requested of respondent that she be furnished copies of respondent's OSHA 200 Logs (Log and Summary of recordable occupational injuries and illnesses) for the calendar years 1982, 1983, 1984, 1985 and 1986.  Mrs. Nelson testified that the request was made using a sample request letter she had obtained at a union seminar in July of 1986 (Tr. 82) and that she made the request in an attempt to obtain more information about other employees who might have sustained an injury that Ms. Nelson was having personal problems with (back and neck injury).   (Tr. 88-89) Mr. Bruce Holton, Monfort's Personnel Director, testified that he received and denied the request because he thought it was a union request and was later advised by the corporate office that any further correspondence would be handled by counsel.  (Tr. 107)

Ms. Nelson has been represented throughout these proceedings by the Assistant General Counsel for the UFCW.  Ms. Nelson, through the Assistant General Counsel of the UFCW, sought party status on March 22, 1988.  (The hearing was scheduled and conducted on April 7, 1988).  On March 25, 1988, the undersigned denied the request because Ms. Nelson was not an employee.  On March 28, 1988, eight days prior to trial, Ms. Nelson filed a Petition to Intervene. This petition was granted for the limited purpose of allowing Ms. Nelson to file a post-trial brief and she has done so.

Issues

The respondent has raised four issues pertaining to the validity of the citation.

1) Whether 29 C.F.R. § 1904.7(b)(1), requiring Monfort to produce OSHA 200 Logs to a former employee, violates Monfort's right of privacy.

2) Whether 29 C.F.R. §1904.7(b)(1), requiring Monfort to produce OSHA 200 Logs to a former employee, violates the fourth amendment by allowing greater intrusion into privacy rights by an individual than by a government agency.

3) Whether requiring Monfort to produce OSHA 200 Logs to a former employee presently a full time union organizer, is an unfair labor practice violating the National Labor Relations Act §8(a)(2), as amended (29 U.S.C. §158(a)(2)) (the NLRA).

4) Whether the proposed penalty of $10,000.00 is excessive.

The first two issues raised may be easily disposed of.  At the administrative trial level there is no authority to consider and rule on constitutional issues as raised here.  Buckeye Industries, Inc. v. Secretary of Labor 587 F.2d 231 (1979). Under these arguments, to sustain the position of the respondent would require the undersigned to declare the cited regulation, 29 C.F.R. §1904(b)(1) unconstitutional for which there is no authority.  However, these arguments will be considered under respondent's fourth argument concerning severity of the proposed fine.

The third argument raised by respondent is respondent's belief that turning the OSHA 200 Logs to Ms. Nelson, a current organizer for the UFCW, would constitute an unfair labor practice prohibited by the National Labor Relations Act §8(a)(2), as amended (29 U.S.C. §158(a)(2) (The NRA).  In support of this argument the respondent attached to its brief an NLRB decision wherein the respondent was found in violation of the above cited section.  Also attached was the 9th Circuit's decision affirming that decision.  (Industrial Technical and Professional Employees Division, National Maritime Union of America, AFL-CIO, Petitioner, and Monfort of Colorado, Inc., Petitioner v. National Labor Relations Board, Respondent, United Food and Commercial Workers Union, AFL-CIO, Intervenor.  683 F.2d 305 (1982))

The basic ruling in this case was that the respondent had committed an unfair labor practice by giving unlawful assistance and support to the union.   (emphasis added)  It is clear under the facts of the instant case that even if the purpose for seeking the logs was to assist the union, the delivery by the respondent is mandated by OSHA regulation and in no way could be construed as unlawful.  This argument is without merit.

Respondent's fourth argument is that the proposed penalty of $10,000.00 is too severe.  The respondent has not raised any arguments concerning the classification of this violation.  A review Commission case has held under almost identical facts that this type violation is properly classified as Willful.  (RSR Corporation v. Brock 765 F.2d 355 (5th Cir. 1985), 11 BNA OSHC 1163 (No. 79-3813, 80-1602, 79-6392 and 79-5062, 1983)  In addressing the severity of the proposed penalty, consideration must be given to respondent's arguments concerning the constitutionality of the cited Section 29 C.F.R. §1904.7(b)(1).  If there was a good faith belief on the part of the respondents in this constitutional argument, then the proposed penalty of $10,000.00 is obviously too severe.

Two recent Federal Circuit court cases affirming the Review Commission have held that 29 C.F.R. §1904.7(a ) is in violation of the fourth amendment prohibition against unreasonable searches and seizures (Brock v. Emerson Electric Co., Electronic and Space Div., 834 F.2d 994 (11th Cir., 1987) 13 BNA OSHC 1171 (No . 84-985, 1987); and McLaughlin v. Kings Island, Division of Taft Broadcasting Co. __F.2d__ (6th Cir., June 6, 1988) 13 BNA OSHC 1137 (No. 82-1016, 1987).  Although these cases dealt with a different subsection than the instant case, both cases emphasized that the respondent (employer) has a constitutionally recognized right to privacy in the OSHA 200 Logs.

The complainant argues that any constitutional rights that the respondent has would not be applicable to a private individual (Ms. Nelson) and in support cites Bordeau v. McDowell, 41 S.Ct. 574 (1921).  The Bordeau case is easily distinguishable in that it dealt with an unlawful taking by a private individual.  In the instant case, even though she is a private individual, Ms. Nelson's right to inspect the OSHA 200 Log is one created by the government and therefore would constitute a government sanctioned invasion of this right of privacy.

As indicated previously the undersigned has no authority to rule on the constitutional validity of the cited section, but under the Emerson Electric and Kings Island decisions (supra) it is clear that the respondent has a good faith argument concerning this constitutional validity and therefore the proposed penalty of $10,000.00 is too severe.  A penalty of $100.00 will be imposed.

Findings of Fact and Conclusions of Law

All Findings of Fact and Conclusions of Law necessary to a determination of the contested issues are contained in the opinion above.  See Rule 52(a) of the Federal Rules of Civil Procedure.  Any proposed findings of fact or conclusions of law that are inconsistent with this decision are denied.

ORDER

The citation is affirmed and a penalty of $100.00 is assessed.

SO ORDERED.

William R. Mullins
Judge, OSHRC
Dated: August 10, 1988

FOOTNOTES:

[[1/]] The regulation provides:

The log and summary of all recordable occupational injuries and illnesses (OSHA No. 200) (the log) provided for in § 1904.2 shall, upon request, be made available by the employer to any employee, former employee, and to their representatives for examination and copying in a reasonable manner and at reasonable times.  The employee, former employee, and their representatives shall have access to the log for any establishment in which the employee is or has been employed.

[[2/]] Judge Mullins mistook the language in Buckeye Industries, Inc. v. Secretary, which concerned the Commission's lack of authority to determine the constitutionality of a statute, and applied that language in ruling on a constitutional challenge to a regulation.  The Commission's authority to rule on the constitutionality of a regulation is well-established. E.g., Taft Broadcasting Co., Kings Island Division, 13 BNA OSHC 1137, 1146, 1986-87 CCH OSHD ¶ 27,861, p. 36,490 (No. 82-1016, 1987), aff'd, 849 F. 2d 990 (6th Cir. 1988).

[[3/]] See, e.g., section 8(c)(1) of the Act, 29 U.S.C. § 657(c)(1) (Secretary shall issue regulations requiring that employers, by posting notices or other means, keep their employees informed of their protections and obligations under the Act); section 8(c)(3) of the Act, 29 U.S.C. § 657(c)(3) (Secretary shall issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents, when monitoring or measuring of such exposures is required under the Act, and Secretary shall provide employees an opportunity to observe such monitoring and access to such records).

[[4/]] See also Taft Broadcasting Co., Kings Island Division, 13 BNA OSHC at 1145, 1986-87 CCH OSHD at p. 36, 489, aff'd 849 F. 2d at 995 (6th Cir. 1988) (reasonable reporting requirement exception not applicable even where reporting was to government because of unbridled discretion of compliance officers under the challenged regulation).

[[5/]] Section 1904.7 (a) provides:

Each employer shall provide, upon request, records provided for in §§ 1904.2, 1904.4, and 1904.5 [OSHA Forms 200 (and annual summary) and 101], for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provisions of the [A]ct....

[[6/]] Only such injuries that involve loss of consciousness, restriction of work or motion, transfer to another job, or medical treatment (other than first aid) need be included.

[[7/]] Section 1904.5(a) provides:

Each employer shall post an annual summary of occupational injuries and illnesses for each establishment.  This summary shall consist of a copy of the year's totals from the form OSHA No. 200 . . . . A form OSHA No. 200 shall be used in presenting the summary. . . .

The regulation at 29 C.F.R. § 1904.5(d)(1) requires that "[t]he summary covering the previous calendar year shall be posted no later than February 1, and shall remain in place until March 1."

[[8/]] Section 8(a)(2) of the NLRA, 29 U.S.C. § 158(a)(2), provides:

(a)It shall be an unfair labor practice for an employer--
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it....

[[9/]] Monfort introduced into evidence copies of a decision of the National Labor Relations Board in Monfort of Colorado, Inc., 256 NLRB 612 (1981), as well as a decision of the United States Court of Appeals for the Ninth Circuit affirming the Board in Industrial, Technical and Professional Employees Division, National Maritime Union of America,  AFL-CIO v. National Labor Relations Board, 683 F.2d 305 (9th Cir. 1982).  In those decisions, the Board and the court found Monfort in violation of section 8(a)(2) (as well as section 8(a)(1) ) of the NLRA for providing unlawful assistance and support to a union that waged an organizing campaign in opposition to the union that employed Nelson at the time of her request.

[[10/]] We recognize that the Commission's decisions in Kings Island, Emerson, and A.B. Chance had not yet been issued when Monfort first denied Nelson's request.  They were issued on March 18, 1987.  However, prior to their issuance, it was a matter of public record that those cases involved Fourth Amendment challenges to section 1904.7(a).  In any event, if Monfort did not believe at the time it denied Nelson's request that the records were protected from disclosure under the Fourth Amendment, then any later-developed belief that the Fourth Amendment applied would be irrelevant to the allegation of willfulness.