SECRETARY OF LABOR,

Complainant,

v.

HERN IRON WORKS, INC.,

Respondent.

OSHRC Docket No. 88-1962

ORDER

This case is here at the direction of the United States Court of Appeals for the Ninth Circuit.  Dole v. Hern Iron Works. Inc., [to be published at] 937 F.2d 612 (table) [15 BNA OSHC 1158 (full text)] (9th Cir. 1991) (unpublished), rev'g Hern Iron Works, Inc., 14 BNA OSHC 1446, 1987-90 CCH OSHD 28,783 (No. 88-1962, 1989 ALJ).  In accordance with the Ninth Circuit's decision and mandate, we hereby reinstate the citation issued to Hern Iron Works, Inc. ("Hern") alleging a willful violation of 29 C.F.R. 1904.7 for failure to provide to representatives of the Secretary, upon their request, prescribed injury and illness records.  We remand this case to Administrative Law Judge Benjamin R. Loye for consideration of the merits of the citation.

In his decision below, Judge Loye relied on Commission precedent holding that section 1904.7 does not authorize representatives of the Secretary to inspect the required records without a valid warrant, an administrative subpoena, or the employer's consent.  See 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).   He found that, although the Secretary's representatives presented a 1987 warrant when they sought to inspect Hern's records in May of 1988, the inspection was not based on that warrant, but rather on newly received employee complaints.  Finding no valid warrant, subpoena, or consent authorizing the inspection, Judge Loye vacated the citation.

The Secretary filed a petition for review with the Commission, but the case was not directed for review and became a final order of the Commission under section 12(j) of the Occupational Safety and Health Act ("the Act"), 29 U.S.C. 661(j).

The Ninth Circuit granted the Secretary's petition for review, filed pursuant to section 11(b) of the Act, 29 U.S.C. 660 (b).   The court concluded that the judge's finding that the inspection was not conducted pursuant to a warrant was not supported by substantial evidence in the record.  The court noted that the record was "replete with credible evidence that the 1988 search was pursuant to a valid 1987 warrant."  According to the court, the judge abused his discretion in ignoring that evidence, particularly the August 1988 findings of a federal district court, in a related action brought by Hern, that the 1987 warrant was valid.  The Ninth Circuit therefore reversed the judge's decision and "remanded with instructions to reinstate the citation."

Because the judge did not reach the merits of the citation that we have reinstated herein, we remand this case to him to make those determinations. Recognizing the need for prompt action in this case, we order expedited proceedings pursuant to the Commission's Rule of Procedure at 29 C.F.R. 2200.103(a).

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: September 6, 1991


SECRETARY OF LABOR,

Complainant,

v.

HERN IRON WORKS, INC.,

Respondent.

OSHRC DOCKET No. 88-1962

APPEARANCES:

For the Complainant:
William W. Kates, Esq., Office of the Solicitor,
U. S. Department of Labor, Seattle, WA

For the Respondent:
Harvey Richman, Esq.,
Coeur D'Alene, ID

Gary N. Herbert, Esq., Mountain States Legal
Foundation, Denver, CO

DECISION AND ORDER

Loye, Judge:

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act").

On May 24, 1988, following receipt of two employee complaints, the Occupational Safety and Health Administration (OSHA), attempted to conduct an inspection at the workplace of Hern Iron Works, respondent in this action, in Coeur D'Alene, Idaho (Tr. 68, 70).  Mr. John A. Hern, respondent's owner, was informed of the reason for the inspection and asked to provide the Compliance Officers with OSHA accident and injury logs as described in 29 CFR 1904 (Tr. 71, 73).  Mr. Hern asked to be shown a warrant (Tr. 71).  A copy of a warrant previously issued in June 1987 was provided Mr. Hern (Tr. 72).  After speaking to his attorney, Mr. Hern refused to cooperate with an inspection (Tr. 77-78).  Respondent was issued a citation for violation of 29 CFR 1904.7 which requires that "[e]ach employer shall provide, upon request, records provided for in 1904.2, 1904.4, and 1904.5. . ." i.e. logs and summaries of occupational injuries and illnesses.

The Commission has found 1904.7 unconstitutionally invalid insofar as it "purports to authorize an inspection of required records without a warrant or its "equivalent," e.g. the employer's consent or an administrative subpoena. . . " Taft Broadcasting Co., Kings Island Division, 13 BNA OSHC 1137 (No. 82-1016, 1987), aff'd, 849 F.2d 990 (6th Cir. 1988).

There is no question that Hern did not consent to inspection of its records.  No administrative subpoena was produced.  The testimony indicates that although the Compliance Officer presented respondent with a year old warrant, the inspection of respondent's workplace was not instigated for the purpose of executing that warrant, but rather was the result of newly received employee complaints.  Moreover, the Secretary does not argue that the inspection was authorized by the June 1987 warrant; in fact her brief never mentions the warrant.

This judge is bound by the holding in Taft Broadcasting Co.  In the absence of any evidence that OSHA's request for respondent's records was consented to or authorized by facially valid compulsory legal process, respondent's failure to provide the requested records cannot constitute the basis for citation.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been found specially and appear in the decision above.  See Rule 52(a) of the Federal Rules of Civil Procedure.  Proposed Findings of Fact or Conclusions of Law that are inconsistent with this decision are denied.

Order

1. Willful citation 1, item 1 alleging violation of 1904.7 is DISMISSED.

Benjamin R. Loye
Judge, OSHRC
Dated: November 15, 1989