PLUM CREEK LUMBER COMPANY

OSHRC Docket No. 78-1485

Occupational Safety and Health Review Commission

October 20, 1980

OPINION:

  [*1]  

ORDER

The Secretary of Labor ("Secretary") has moved to partially expunge the record.   He seeks to have expunged approximately eight pages of the transcript of proceedings held in Kalispell, Montana on August 15, 1978, before Administrative Law Judge Erwin L. Stuller.   The passages the Secretary seeks to have expunged from the record consist primarily of remarks made by the judge regarding an alleged ex parte communication by an Associate Regional Solicitor of the Department of Labor.   The Secretary has also requested a separate proceeding under Commission Rule 103, 29 C.F.R. §   2200.103, on the issue of the alleged ex parte communication. For the following reasons, the Secretary's motion is denied.

Section 12(g), 29 U.S.C. §   661(f), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678, requires, among other things, that "[e]very official act of the Commission shall be entered of record, and its hearings and records shall be open to the public." Commission Rule 65, 29 C.F.R. §   2200.65, provides, among other things, that "[h]earings shall be transcribed verbatim." These provisions require the Commission to maintain records of its proceedings and to   [*2]   assure that the events occurring at its hearings are fully and accurately transcribed. The Commission thus must maintain records of its proceedings including a verbatim transcript of its hearings.   A verbatim transcript is, literally, a written copy of exactly the same words spoken at the hearing.   The Commission cannot expunge portions of a transcript where, as here, the material sought to be expunged is neither claimed nor shown to be an inaccurate transcription of the proceedings.

Moreover, while the Commission is empowered to grant "other appropriate relief" under section 10(c) of the Act, 29 U.S.C. §   659(e), and may waive its own procedural rules pursuant to Commission Rule 108, 29 C.F.R. §   2200.108, we do not find a sufficient basis to do so on the record before us in this case.   The propriety of an order directing expungment requires a balancing of the harm caused to an individual by the existence of any records against the utility to the Government of their maintenance.   Paton v. La Prade, 524 F.2d 862, 868 (3d Cir. 1975). We do not condone, endorse or approve of Judge Stuller's remarks concerning the actions of the Associate Regional Solicitor.   We do, however, conclude [*3]   that any harm caused to the Associate Regional Solicitor is, under these circumstances, outweighed by the importance of the statutory and regulatory policy favoring the maintenance of the verbatim transcript of proceedings.

We also deny the Secretary's request to take further action pursuant to Commission Rule 103(b), 29 C.F.R. §   2200.103(b). n1 Actions under Rule 103(b) are to be instituted only where there has been an ex parte communication "with respect to the merits of any case not concluded." Commission Rule 103(a), 29 C.F.R. §   2200.103(a).   In this case, the alleged ex parte communication consists of a letter from the Associate Regional Solicitor to the Chief Administrative Law Judge of the Commission seeking advice as to the proper titles to be used on pleadings filed with the Commission. n2 While the Associate Regional Solicitor's letter referred to this case as an example, it did not contain any discussion or reference to the merits of the case.   We thus find that the letter was not an ex parte communication "with respect to the merits" of this case within the meaning of Commission Rule 103(a).   Accordingly, further action under Commission Rule 103(b) would be [*4]   inappropriate.

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n1 The rule states:

Rule 103 Ex parte communication.

(a) There shall be no ex parte communication, with respect to the merits of any case not concluded, between the Commission, including any member, officer, employee, or agent of the Commission who is employed in the decisional process, and any of the parties or intervenors.

(b) In the event such ex parte communication occurs, the Commission or the Judge may make such orders or take such action as fairness requires.   Upon notice and hearing, the Commission may take such disciplinary action as is appropriate in the circumstances against any person who knowingly and willfully make or solicits the making of a prohibited ex parte communication.

n2 See Commission Rule 31(a), 29 C.F.R. §   2200.31(a).

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The motion to expunge the record and to take action under Rule 103 is denied.

SO ORDERED.