SECRETARY OF LABOR,
Complainant.
v.
BALLY'S PARK PLACE HOTEL & CASINO
Respondent

OSHRC DOCKET NOS. 87-1849 & 88-0337


*DECISION *

Before: FOULKE, Chairman: and WISEMAN, Commissioner.[[1]]

BY THE COMMISSION:

These cases are before the Commission pursuant to a petition by Bally's
Park Place Hotel & Casino ("Bally's) for review of a decision by a
Commission Administrative Law Judge. The judge held that Bally's
violated two provisions of the records access rule, 29 C.F.R. § 1910.20,
promulgated by the Secretary's Occupational Safety and Health
Administration ("OSHA"). His basic grounds were that Bally's refused to
turn over to OSHA and to an employee representative a copy of certain
records of employee exposure to airborne iodine at Bally's Atlantic
City, N.J., casino. Bally's argues that the records are exempt from
disclosure under the attorney work product doctrine--or rule--because
they were prepared for its attorney in anticipation of litigation. We
find that Bally's objections are well founded, and therefore we vacate
the citations.

BACKGROUND

Based on a complaint by a Bally's employee, OSHA wrote Bally's on March
10, 1987,to request that the company investigate iodine emissions from
an automatic, cold water glass washing machine located in a bar at its
casino. OSHA regulates employee exposure to iodine through the standard
codified at 29 C.F.R. § 1910.1000. Bally's general counsel, Dennis
Venuti, ordered that the machine be tested for iodine emissions, and
that a confidential report of the results be sent to him. Bally's hired
an outside consultant to do the testing. Venuti testified without
contradiction that the test results were prepared for him in
anticipation of litigation.[[2]]

Relying upon the attorney work product rule, Bally's denied repeated
requests by the employees' union representatives, and by OSHA, to be
provided with a copy of the iodine sampling results. The Secretary
issued an administrative subpoena to Bally's for the documents. Bally's
refused to comply, again on the ground of the work product rule.

The Secretary pursued the subpoena no further. Rather, she issued a
citation to Bally's for a willful violation of section
1910.20(e)(1)(i)[[3]] for failure to provide the union representative
with access to the iodine sampling results. That citation is the subject
of Docket No. 87-1849. Later, the Secretary cited Bally's for a willful
violation of section 1910.20(e)(3)(i) [[4]]for failure to provide OSHA
with access to those records. That citation is the subject of Docket No.
88-0337. The judge affirmed the citations as serious and assessed
penalties of $600 for each.

DISCUSSION

a. Whether the work product rule applies to the records sought

The attorney work product rule has been codified in Rule 26(b)(3) of the
Federal Rules of Civil Procedure, which provides:

[A] party may obtain discovery of documents and tangible things
otherwise discoverable ... and prepared in anticipation of litigation or
for trial by or for another party or by or for that other party's
representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent) only upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means. . . .

Fed. R. Civ. P. 26 (b)(3). That rule is applicable in Commission
proceedings, because the Commission has not adopted a specific provision
differing from it. 29 U.S.C. § 661(g) ("Unless the Commission has
adopted a different rule, its proceedings shall be in accordance with
the Federal Rules of Civil Procedure"); Commission Rules 2(b) and 52(a),
29 C.F.R. §§ 2200.2(b) and 52(a) ("In the absence of a specific
provision, procedure shall be in accordance with the Federal Rules of
Civil Procedure"). See Continental Oil Co., 9 BNA OSHC 1737, 1741 & n.6
1981 CCH OSHD ¶ 25,371, pp. 31,579-80 & n.6 (No. 79-570, 1981).[[5]]
Certain exceptions to Fed. R. Civ. P. 26(b)(3) are set forth in a
different part of the rule. Those exceptions are not relevant here.

Under the express terms of the rule, the qualified work product
protection of Rule 26(b)(3) applies to the iodine sampling records, for
discovery purposes, because: (1) the records are documents, (2) they
were "prepared in anticipation of litigation," and (3) they were
prepared for Bally's attorney by Bally's consultant or agent. See
Continental Oil Co., 9 BNA OSHC at 1741 & n,9, 1981 CCH OSHD at pp.
31,579-80 & n.9, citing United States v. Nobles, 422 U.S 225, 238-39
(1975). See also, e.g., McNulty v. Bally's Park Place, Inc., 120 F.R.D.
27, 29-30 (E.D. Pa. 1988) (statement by eyewitness to slip and fall,
given to Bally's insurance adjuster when the filing of a lawsuit against
Bally's over slip and fall could reasonably be anticipated, was covered
by Rule 26(b)(3)).

Nevertheless, the Secretary argues that Rule 26(b)(3) does not govern
this case because it involves a subpoena issued before the litigation
began, rather than a discovery request. However, the Supreme Court has
applied the Rule 26(b)(3) criteria to determine whether a comparable
investigative tool, an Internal Revenue Service ("IRS") summons, should
be enforced:

Nothing in the language of the IRS summons provisions or their
legislative history suggests an intent on the part of Congress to
preclude application of the work-product doctrine. Rule 26(b)(3)
codifies the work-product doctrine, and the Federal Rules of Civil
Procedure are made applicable to summons enforcement proceedings by Rule
81(a)(3).

Upjohn Co. v. United States, 449 U.S. 383, 398-99 (1981), Fed. R. Civ.
P. 81(a)(3), referred to in the previous quotation, also applies the
Federal Rules of Civil Procedure to proceedings to enforce OSHA
subpoenas. It provides:

... These rules apply to proceedings to compel the giving of testimony
or production of documents in accordance with a subpoena issued by an
officer or agency of the United States under any statute of the United
States except as otherwise provided by statute or by rules of the
district court or by order of the court in the proceedings.

(Emphasis added). See also, United States v. Rockwell Intl., 897 F.2d
1255, 1265-66 (3d.Cir. 1990) (attorney work product rule may be
interposed against IRS summons). OSHA subpoenas are "issued by an
officer or agency of the United States," pursuant to section 8(b) of the
Occupational Safety and Health Act ("the Act"), 29 U.S.C. § 659(b).
There is no provision affecting the application of the Federal Rules to
such subpoenas.

We hold that the Rule 26(b)(3) criteria determine whether disclosure of
Bally's report may be compelled by citation, subpoena, or discovery.
Rule 26(b)(3) codifies an historical "public policy underlying the
orderly prosecution and defense of claims." Hickman v. Taylor, 329 U.S.
495, 510 (1947) (in performing duty to gather facts for court and
client, "it is essential that a lawyer work...free from unnecessary
intrusion by opposing parties and their counsel") The mere form of the
proceeding should not change the protections for an attorney's work
product. Here, the Secretary could have attempted judicial enforcement
of the subpoena she issued. As mentioned above, the work product rule
would have been fully applicable in such a proceeding.[[6]]

The judge held that the records contained test results and other factual
information and were unprotected by the work product rule. He stated
that "an in camera inspection revealed that the test was purely
technical information." However, as applicable case precedent makes
clear, factual portions of a document covered by the qualified privilege
of Rule 26(b)(3) are protected by its express terms, unless the special
showing of need and lack of alternatives is made. Continental Oil, 9 BNA
OSHC at 1741-42, 1981 CCH OSHD at pp. 31,579-80 (factual records
contained in respondent's expert investigative report prepared for
litigation were protected by work product rule).[[7]]

The Secretary argues that even if the consultant's report is protected
by the work product doctrine, the cited standards should be construed to
require disclosure of the factual Information in It. She cites the
repeated statements in the preamble to section 1910.20 that the basic
reason for the regulation is the need for "information." E.g., Access to
Employee Exposure and Medical Records: Final Rule, 45 Fed. Reg. 35,212,
35,213 (1980). However, section 1910.20 is expressly limited to access
to "records."[[8]] That rule does not require the employer to divulge
information, other than the records that are subject to access under the
rule. A regulation may not be construed to mean what the agency might
have intended, but did not adequately express. E.g., Bunge Corp., 12 BNA
OSHC 1785, 1791, 1986-87 CCH OSHD ¶ 27,565, p, 35,806 (No. 77-1622, 1986).

As noted above (n.7), the work product doctrine protects only specific
"documents and tangible things." Thus, disclosure of the underlying
facts mentioned in documents may be pursued by other means. In these
cases, however, the Secretary has not attempted by other means to obtain
the facts she seeks. Thus, we only decide whether the Secretary is
entitled to the records in question. We note, however, that discovery of
the underlying facts from Bally's expert consultant might be subject to
restrictions in these circumstances, under Fed. R. Civ. P. 26(b)(4)(B).[[9]]

b. Whether the Secretary has abrogated work product protection for
employee exposure records under § 1910.20

The judge accepted the position of the Secretary's counsel that in
promulgating the records access rule, the Secretary eliminated any
exception to the disclosure of covered records which may have otherwise
applied under the work product doctrine. He based that finding on
developments subsequent to the rule's promulgation. We disagree with
that conclusion. As mentioned above, the qualified protection for
attorney work product has emerged from a basic public policy that has
historical roots in the common law tradition.

It is a well-established principle of statutory construction that "[t]he
common law ... ought not to be deemed to be repealed, unless the
language of a statute be clear and explicit for this purpose."

Norfolk R. & H. Auth. v. C & P Telephone Co., 464 U.S. 30, 35 (1983)
quoting Fairfax's Devisee v. Hunter's Lessee, 7 Cranch (11 U.S.) 603 (1813).

There is no "clear and explicit" language in the Act either repealing or
authorizing the Secretary to abrogate the work product doctrine. The
Secretary's counsel argues that the Act provides authority to abrogate
work product protection because Congress provided for access to exposure
records by the Secretary and by employees, under sections 8(c)(1) and
(3) of the Act, 29 U.S.C. §§ 657(c)(1) and (3). However, those
provisions do not mention the work product doctrine. Nor do they
expressly grant authority to abrogate it. [[10]] The legislative history
of the Act also does not indicate an intention to authorize the
Secretary to abrogate the work product doctrine.

Even assuming that something less than "clear and explicit" statutory
authority would he sufficient to authorize abrogation of the work
product doctrine as to exposure records, no such authority may even be
implied here. As discussed above, section 12(e) of the Act affirmatively
incorporates the work product doctrine into Commission proceedings,
through the Federal Rules of Civil Procedure. Under section 12(e), only
the Commission may alter the application of the work product doctrine in
its proceedings, and it has not done so. It would not be reasonable to
conclude that section 8(c) of the Act implicitly gives the Secretary
authority to abrogate work product protection, in view of the fact that
Congress contemplated that the work product doctrine would apply in
proceedings to review contested citations.

Moreover, an interpretation of a statute or regulation that is contrary
to a clear public policy, such as the attorney work product doctrine, is
not favored. See, e.g., Creque v. Luis, 803 F.2d 92, 96 (3d Cir. 1986)
(clear public policy considerations "exert a significant influence in
the process of statutory interpretation by the courts") quoting 2A
Sutherland, Statutory Construction, § 56.01 (4th ed. 1984). See
generally Pillsbury v. United Engg. Co., 342 U.S. 197 (1952). Under
these circumstances, we will not defer to the interpretation of the Act
advanced by the Secretary's counsel. Cf. Martin v. OSHRC (CF& I Steel
Corp.), 111 S.Ct. 1171, 1178-79(1991) (Secretary's interpretations of
the Act and of her regulations are entitled to judicial deference where
reasonable).

Because the Act does not authorize abrogation of the work product
doctrine, the Secretary may not abrogate the doctrine by regulation. "It
is axiomatic that an administrative agency's power to promulgate
legislative regulations is limited to the authority delegated by
Congress." Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988).
The Secretary essentially concedes that there can be no abrogation of
the doctrine without sufficient statutory authority.

Even if the Act had authorized the Secretary to abrogate work product
protection for exposure records, there is no reasonable basis to
conclude that she has done so. The original records access rule
contained no provision concerning documents prepared in anticipation of
litigation. 45 Fed. Reg. 35,212. Nor did its Preamble discuss the
subject. The Secretary's counsel argues that an intent to abrogate work
product protection for exposure records is found in an interpretation of
the rule that that the Secretary issued in 1981. Access to Employee
Exposure and Medical Records; Partial Stay; Interpretations, 46 Fed.
Reg. 40,490 (1981). We disagree. That interpretation stated:

3. Privileged records. The question has been raised whether an employer
must provide access to records which are created solely in anticipation
of litigation and which are otherwise privileged from discovery under
the prevailing rules of procedure or evidence. An example could be a
medical opinion prepared for the employer for purposes of aiding the
employer's case by a company physician after a workmen's compensation
claim has been filed. It has been OSHA's interpretation that the
standard does not contemplate coverage of such a record if the record
would not otherwise be available to the employee or his attorney in the
litigation. On the other hand, the mere fact that a medical record (see
definition at 29 CFR 1910.20(c)(6)) not originally created in
anticipation of specific litigation will ultimately be used as evidence
in a private legal proceeding does not put it outside the scope of the
standard.

Id. (emphasis added). Although the interpretation uses medical records
as an example of documents that might not be covered by the rule, the
passage covers records generally. Read as a whole, the passage indicates
to us that the Secretary actually intended not to abrogate the work
product doctrine with respect to exposure records. The Commission
recently interpreted the same passage, in upholding the Secretary's
position that the records access rule does not affect the records
disclosure provisions of a worker's compensation law:

OSHA made clear that the rule does not require disclosure of records
created by the employer in anticipation of litigation and which would be
unavailable to the employee in [Worker's Compensation] proceedings for
that reason.

General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2067, 1991
CCH OSHD ¶ 29,240, pp. 39,166-67 (No. 82-630, 1991). The Secretary's
1981 interpretation indicates an intent to apply the rule consistently
with the work product doctrine.

The Secretary further argues that the 1988 revisions to the records
access rule shows an intent by the Secretary to abrogate protection for
exposure records. Access to Employee Exposure and Medical Records: Final
Rule, 53 Fed. Reg. 38,140 (1988). At that time, the Secretary amended
the definition of "employee medical record" to exclude "records created
solely in preparation for litigation which are privileged from discovery
under the applicable rules of procedure or evidence." 29 C.F.R. §
1910.20(c)(6)(ii)(C). Id. at 38,163. No such amendment was written into
the standard regarding employee exposure records.

However, the preamble to the 1988 revisions reaffirmed and reprinted the
1981 interpretation in discussing the term employee medical records. Id.
at 38,150-51. As discussed above, we conclude that the 1981
interpretation actually shows that the Secretary did not intend to
abrogate work product protection for exposure records. We also conclude
that the Secretary's silence on abrogation of the work product rule
relative to exposure records in the 1988 revisions does not require the
conclusion that abrogation as to that category of records was the result
which she intended. If anything, that silence may be indicative of the
fact that more often than with medical records, exposure records are
prepared pursuant to the requirements of an OSHA standard, rather than
to prepare for prospective litigation, and thus art not covered by the
attorney work product rule. Consequently, application of the work
product rule in the context of exposure records would arise less often
than with medical records. That could explain why in the 1988 revisions
the Secretary made the clarification as to medical records, but saw no
need to address the lesser issue of abrogation as to exposure records.
Moreover, the Secretary has not established a pattern of enforcement by
OSHA in which the agency has considered the work product rule as having
been abrogated as to exposure records.

For these reasons, we find no reasonable basis to conclude that the
Secretary intended to abrogate work product protection for exposure
records under the records access rule.  Under these circumstances
deference is not due to the Secretary's interpretation of the rule. 
Compare CF&I Steel Corp. at 1179 (reviewing court may consult the
Secretary's interpretive rules "to determine whether the Secretary has
consistently applied the interpretation embodied in the citation, a
factor bearing on the reasonableness of the Secretary's position") and
Gardebring v. Jenkins, 485 U.S. 415, 429-30 (1988) (agency's
interpretation of its regulation upheld where there was no claim that it
was inconsistency with Constitutional or statutory mandate, with plain
language of regulation, or with agency's intent when promulgated
regulation) with Bowen v. Georgetown Univ. Hospital, Id. at 212 (Supreme
Court has never required deference to "agency litigation positions that
are wholly unsupported by regulations, rulings, or administration
practice [or] to an agency counsel's interpretation of a statute where
the agency itself has articulated no position on the question")  and
Inv. Co. Inst. v. Camp, 401 U.S. 617, 617, 629-39 (1971) ( Court
rejected interpretation of agency regulation urged by agency's appellate
counsel, where interpretation was contrary to literal language and
intent of statute).

Finally, we note that the 1988 revisions by themselves have no effect on
these cases.   The citations predate those revision by many months, and
only allege violations of the original records access rule.

c. Whether the Secretary made the special showing that would justify
disclosure of attorney work product

The qualified work product protection of Fed. R. Civ. P. 26(b)(3) may be
overcome if the Secretary "has substantial need of her case, and "is
unable without undue hardship to obtain the substantial equivalent of
the materials by other means."   The Commission has required a showing
that other discovery methods would be sufficient to obtain the facts
sought in order to justify discovery of work product.   Continental Oil
Co., 9BNA OSHC at 1742-43, 1981 CCH OSHD at pp. 31,580-82.

The judge held that even it the records  sought were work product, they
are discoverable because the Secretary has a substantial need for them. 
He concluded that Bally's effectively denied OSHA and the employees a
means of obtaining the results themselves, because the machine was taken
out of service after Bally's test. He further found that OSHA reasonably
relied on Bally's to conduct the test and submit the results to OSHA. He
essentially held that there was an understanding between OSHA and
Bally's to that effect. Bally's denies that such an understanding
existed, and argues that the Secretary failed to make the required
showings of need and lack of alternatives. The Secretary does not
address these issues.

We conclude that, without undue hardship, OSHA would have been able to
obtain substantially equivalent test results. The judge cited no
evidence that Bally's precluded OSHA from testing the machine, and we
have found none. Bally's represents that it did not deny OSHA the
opportunity to test the machine, and notes that OSHA never asked to
conduct its own tests. The evidence indicated that Bally's performed its
own tests by putting the machine back in service temporarily for that
purpose, after it had been shut down for weeks following OSHA's letter.
The Secretary has not shown that OSHA was unable to test the machine in
a similar way.

The evidence indicates that OSHA's Camden, New Jersey, area office was
backlogged with scheduled inspections when the Bally's employee first
filed the complaint. The supervisory industrial hygienist at the area
office, Phyllis Kyner, testified that she initially told the complaining
employee that it might take OSHA a month or two to conduct an
inspection. The employee then requested and received quicker action
through OSHA's nonformal complaint procedure. The action taken by OSHA
included sending the March 10, 1987 letter that informed Bally's of the
iodine emissions problem. Thus, we find that the Secretary has not shown
that OSHA was unable, without undue hardship, to obtain the necessary
information by means other than Bally's records.

The judge specifically found that, because of the backlog of scheduled
inspections, "OSHA reasonably relied on Bally's to conduct the test and
submit the results." His first ground for that finding is that "Congress
intended that employers assist the Secretary in providing a safe and
healthful working environment." In support, he cited Yelvington Welding
Serv., 6 BNA OSHC 2013, 1978 CCH OSHD ¶ 23,092 (No. 15958,1978).
However, requiring an employer to turn over test results prepared in
anticipation of litigation against it was not one of the forms of
employer assistance referred to by Congress. The forms of employer
assistance discussed in Yelvington were having representatives accompany
OSHA compliance officers on inspections, and reporting major accidents
to OSHA, as required by 29 C.F.R. § 1904.8.

The judge's second ground for that finding is that OSHA had an
understanding with Bally's that the company would turn its test results
over to the agency. However, the evidence he cited in support of this
finding merely indicates that OSHA requested Bally's to conduct an
internal investigation of iodine emissions, and to provide OSHA with
copies of any tests that Bally's conducted. It does not indicate that
the company ever had a meeting of the minds with OSHA that it would
disclose the test results to the agency[[11]]

There was conflicting testimony about one discussion on the sharing of
test results that occurred on the day the tests were conducted. Jerome
Page, business representative for the employees' union, testified that
he asked Veronica Ghetie, who conducted the test, whether he could have
a copy of the report, and she replied, "No problem, none at all." Page
also testified that Bally's Labor Relations Manager Tartaglio then
walked up, that Ghetie asked him if it would be "okay" to give Page a
copy of the report, and that Tartaglio replied, "No problem."

Tartaglio testified, however, that all he said was "No," when Page
requested a copy of the report from Ghetie that day. The judge credited
Tartaglio's testimony on this issue. The Secretary does not challenge
that finding by the judge. In any event, Bally's consistently denied
requests by Page and OSHA officials for the test results, beginning
shortly after the test was made. OSHA has not established that it
reasonably relied on Bally's to submit the test results as a basis for
the agency's failure to inspect the dishwasher.

Fed. R. Civ. P. 26(b)(3) requires that the party seeking materials (1)
have a substantial need for them, and (2) be unable without undue
hardship to obtain the substantial equivalent by other means. Because
the Secretary has failed to establish the second prong of that test, we
need not reach the issue of whether she established a substantial need
for the test results.Thus, we conclude that the records sought are
exempt from disclosure under the qualified protection of the attorney
work product rule.

CONCLUSION

For the foregoing reasons, we reverse the decision of the administrative
law judge and vacate the citations issued to Bally's in these cases.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: November 7, 1991

------------------------------------------------------------------------

SECRETARY OF LABOR,
Complainant,
v.
BALLY'S PARK PLACE HOTEL & CASINO,
Respondent.

OSHRC Docket Nos. 87-1849 & 88-0337

Region II

APPEARANCES:

HARRY W. SCOTT, JR., ESQUIRE
U.S. Department of Labor Office of the Solicitor
For the Complainant

DAVID R. MILLER, ESQUIRE
Grotta, Glassman, and Hoffman, P.A.
For the Respondent

_DECISION AND ORDER_

TENNEY, JUDGE

_PROCEDURAL BACKGROUND_

This case arose from an employee complaint to the Occupational Safety
and Health Administration (hereinafter OSHA) of sore throats, eye
irritation, and skin rashes. After an investigation and a chain of
related circumstances, the Secretary cited Bally's Park Place Hotel &
Casino (hereinafter Bally's) for two violations.

Bally's conducted an air sampling test in the casino service bar #2 area
following a series of communications with OSHA, the Atlantic city Health
Department, and employee representatives. Thereafter, Bally's denied the
employee representative and OSHA access to the test results based on the
work product rule.

On July 30, 1987, the Secretary served upon Bally's a subpoena duces
tecum. The subpoena requested any documents containing information
concerning employee exposure to a toxic substance or harmful physical
agent such as: (1) environmental workplace monitoring, (2) biological
monitoring results, or (3) any other record which revealed the identity
of a toxic substance or harmful physical agent. (Exhibit R-2.) Again,
Bally's asserted the work product rule and refused to comply with the
subpoena. On August 17, 1987, Bally's submitted through its attorneys, a
position statement which more fully explained their reasons for not
complying with the subpoena. (Exhibit R-3.)

On October 26, 1987, the Secretary issued Bally's its first violation.
Citation No. 1, Item 1, alleges a willful violation of 29 C.F.R. §
1910.20(e)(1)(i) [[1]]. The Complaint alleges that the employer did not
provide access to records containing iodine sampling results conducted
on or about May 4 & 5, 1987, at casino service bar #2 within a
reasonable time (no later than 15 days) when requested by an employee or
designated representative. A proposed penalty of $6,000 was assessed.
This case was assigned the Docket No. 87-1849.

On January 20, 1988, the Secretary issued Bally's its second willful
violation. The second citation, Citation No. 1, Item 1, alleges a
violation of 29 C.F.R. § 1910.20(e)(3)(i) [[2]]. The Complaint alleges
that access to employee exposure records related to the May 4 and 5,
1987, testing at casino service bar #2 were not given to the Camden, New
Jersey, OSHA Area Director or his representative after said records were
subpoenaed. (Tr. 66-67.) This case was assigned the Docket No. 88-0337.

A notice of contest was filed in each case and each was timely. The
cases were consolidated for hearing purposes only. (Tr. 4) A hearing was
held on September 8, 1988, in Philadelphia, Pennsylvania; post hearing
briefs have been filed and considered.

_DECISION_

1. Bally's has its principal place of business in Atlantic City, New
Jersey, and is engaged in operating a casino hotel. Many of the
materials and supplies used and/or manufactured by Bally's originated
and/or were shipped outside the State of New Jersey. (Complaint and
Answer, Paragraphs 2 & 3.) Thus, Bally's is an employer engaged in a
business affecting commerce within the meaning of section 3(5) of the
Act, 29 U.S.C. § 652(5).

2. Casino service bar #2 utilized a dishwasher that required an
iodine-chlorine additive called Mikroklene during the cold water rinse
cycle. (Testimony of Ms. Kyner, Tr. 143; Exhibit C-1.) Ms. Jean Quinn, a
bartender at casino service bar #2 for almost nine years, noted that the
eight-year-old dishwasher required frequent service due to damaged
pipes, flooding, and failure to hold chemical settings. (Tr. 18, 25,
27-28.) The dishwasher was not operated correctly; this resulted in
iodine vapor fumes. (Testimony of Mr. Page, Tr. 32-33; that of Mr.
Tartaglio, Tr. 57; that of Ms. Kyner, Tr. 128.) These fumes caused
numerous employee complaints. (Testimony of Mr. Venuti, Tr. 164; Exhibit
C-2.)

3. Ms. Quinn and other employees complained of the condition in the bar.
(Testimony of Ms. Quinn, Tr. 28.) Complaints were of the following
conditions: bloodshot eyes, eye infections, burnt cheeks, nose runs,
sore throats, frequent bronchitis, skin rashes, and other skin
conditions. (Testimony of Ms. Quinn, Tr. 16; that of Ms. Kyner, Tr. 126,
142.) In addition, it was complained that the iodine vapors were
sufficient to stain walls, ceilings, and employees' shirts brown or
yellow.(Testimony of Mr. Siletsky, Tr. 94.)

4. On March 10, 1987, Mr. Allendorf, Area Director of Camden OSHA, by
letter requested BalIy's to investigate the alleged condition and make
any necessary corrections or modifications and submit any supporting
documents such as monitoring results. (Exhibit J-1.)

5. Mr. Richard Tartaglio, Director of Labor Relations at Bally's,
responded on March 16, 1987, stating the complaint had been fully
investigated and had no merit. (Exhibit C-1.) Bally's investigation
included a check of the venting system and a review of the Mikroklene
directions for use. Mr. Tartaglio stated that improper use by bar
porters resulted in an inaccurate reading during a daily iodine chlorine
test that may have caused a strong odor of iodine. In support of the
findings, Mary Lou Antinozzi, Director of Hotel Services, submitted an
affidavit stating that "the manner in which Bally's maintains the
machine contradicts the allegations raised by complainant (employees) in
this matter." (Exhibit C-1.) However, Bally's did not conduct an air
sampling test at this time to determine whether the complaints were valid.

6. On numerous occasions OSHA was in contact with Bally's regarding the
situation in general and air sampling in particular. (Paragraphs 4,
6-7.) on April 3, 1987, Ms. Kyner spoke with Mr. Tartaglio and suggested
one way to settle the complaint was to get an air sample. (Testimony of
Ms. Kyner, Tr. 129.) In a follow up letter dated April 3, 1987, Mr.
Allendorf noted that Bally's investigation left the condition in open
status and suggested that a way to prove no violation was by air
sampling. (Testimony of Mr. Siletsky, Tr. 118; Exhibit C-2.)

7. On May 6 and 12, 1987, Roman Siletsky, an OSHA compliance officer,
contacted Mr. Tartaglio regarding the situation. During the conversation
of May 6th, Mr. Tartaglio said they would get a sampling firm to come
in. (Testimony of Mr. Siletsky, Tr. 78.) During the conversation of May
12th, Mr. Tartaglio told Mr. Siletsky Bally's would need more time to
get the results. (Testimony of Mr. Siletsky, Tr. 81.)

8. Mr. Tartaglio contacted Bally's construction consulting firm to
arrange an air quality test. (Tr. 53; Testimony of Mr. Venuti, Tr.
165-166, 183.) The construction firm, in turn, contacted J.C. Anderson
Associates to perform the air quality test.

9. The dishwasher was put out of service from April 20, 1987, to the day
of the testing on May 4, 1987. (Testimony of Miss Quinn; Tr. 24-25; that
of Ms. Kyner, Tr. 149-150.)

10. Ms. Veronica Ghetie, an employee of J.C. Anderson Associates and an
agent of Bally's, conducted an air quality test on May 4 and 5, 1987.
(Stipulation; Tr. 36.)

11. The steps taken in preparing for the air quality test were as
follows. The dishwasher and the service bar were placed in a fully
operational mode by the day of the test. Toward that end, Bill McNulty,
manager of Bally's Beverage division, made sure that Ms. Quinn would be
present for the entire testing period. (Testimony of Ms. Quinn, Tr. 8,
21. ) The dishwasher was serviced on the day of the test to ensure
proper functioning. (Testimony of Ms. Quinn, Tr. 18, 23; that of Mr.
Page, Tr. 32 ;that of Mr. Mulgrew, Tr. 69.) The test was conducted on a
regular work day for Ms. Quinn. (Testimony of Mr. Tartaglio, Tr. 202.)
Other employees such as cocktail waitresses and the bar porter worked in
and around the area as usual throughout the test. (Testimony of Ms.
Quinn, Tr. 17.)

12. Ms. Ghetie utilized a "black box" in conducting the air quality
test. Apparently, the box was to be worn by the bartender during the
examination to ensure that the breathing space of the employees was
being monitored. Casino service bar #2 was about five feet long by four
feet in width. (Testimony of Ms. Quinn, Tr. 11-12.) Although Ms. Quinn
was supposed to wear the black box during the actual testing, due to the
limited space it was placed on the bar. It is inferred that Ms. Quinn's
inability to wear the box did not adversely affect the results, given
the confined area of the bar.

13. In sum, the air quality test was conducted during the course of a
normal workday and under normal work conditions. Adequate safeguards
were taken to ensure an accurate test result by Bally's management, Ms.
Ghetie, and employees. The exposure tested on May 4 and 5, 1987, was
typical of that received previously while the dishwasher was in service.
The evidence demonstrates that the air quality test constitutes a record
containing relevant information regarding employee exposure to toxic
substances. Thus, the air quality test constituted an exposure record.
(Testimony of Ms. Kyner, Tr. 141.)

14. On the day of the test, Mr. Page, an employee business
representative, went to the service bar. Mr. Page asked Mr. Tartaglio
for a copy of the test results and he denied the request. (Tr. 200.) On
May 29, 1987, Bally's denied OSHA the test results based on the work
product rule. (Testimony of Mr. Siletsky, Tr. 84-85, 122-123; that of
Mr. Tartaglio, (Tr. 194-195; Exhibit J-5). Again, on June 5, 1987, Mr.
Tartaglio denied Mr. Page the test results. (Testimony of Mr. Page, Tr.
39, 43.) Later, on July 23, 1987, Mr. Tartaglio denied an OSHA
compliance officer the test results. (Testimony of Ms. Kyner, Tr. 136.)
After Mr. Venuti received the subpoena, he informed Ms. Kyner that the
test results would not be made available and that a position statement
would follow. (Testimony of Mr. Venuti, Tr. 174.) Finally, on August 17,
1987, a position statement was filed wherein Bally's refused to give
OSHA the test results. (Testimony of Ms. Kyner, Tr. 138-139.)

15. There are three main issues for decision in this case and one
incidental issue. The main issues are: whether the air quality test is
protected by the work product doctrine; whether the air quality test
report constituted an exposure record under the standard; and whether
the second citation, issued on January 20, 1988, was issued within the
six-month period of Section 9 (c) of the Act. The incidental issue is
whether the second citation was issued with "reasonable promptness."

"Work-Product" Issue

16. Bally's argues that the air quality test results are work product of
an attorney in anticipation of litigation and therefore not subject to
disclosure. However, for the reasons stated below, I conclude that the
air quality test results do not qualify as work product and are subject
to disclosure.

17. The purpose of the work product doctrine is to permit an attorney to
perform his duties without unnecessary interference from opposing
counsel. The doctrine seeks to protect an attorney's mental impressions,
obtained or prepared by an attorney or his agent with an eye toward
litigation. Hickman v. Taylor, 67 S.Ct. 385, 392 (1947).

18. Courts have recognized, however, that there are limitations on the
scope of the doctrine. For example, only where a document is primarily
concerned with legal assistance is it protected; technical information
is otherwise discoverable. Loctite Co. v. Fel-Pro Inc. & Felt Products
Mfg. Co., 667 F. 2d 577, 582 (7th Cir. Ill. 1981). Specifically,
technical information, such as the results of research, tests, and
experiments, given to the attorney and not requiring a legal
interpretation are without protection. Union Carbide Co. v. Dow Chemical
Co., 619 F. Supp. 1036, 1047 (D.C.Del. 1985).

19. Moreover, even if the work product rule were not so confined, there
are other limitations on its scope. The work product rule is largely
confined to pretrial discovery.  _U.S. v. Nobles_, 95 S. Ct. 2160, 2174
(1075) ( White, J., concurring).  Also, if it were not so limited,
production night be justified if there is a substantial need to obtain
the document in question.  _Hickman v. Taylor_, 67 S. Ct. at 394.

20. Turning to the first limitation on the scope of the doctrine,
(Paragraph 18), an _in carmera_ inspection revealed that the test was
purely technical information.  Mr. Venuti also conceded that the test
result as confidential materials.  _Union Carbide Co._, 619 F. Supp. at
1047.  As the test results in this case are factual and require no legal
interpretation they are devoid of protection under the work product rule.

21. Moreover, it is irrelevant whether the primary motive in directing
Ms. Ghetie to conduct the test was done with an eye towards litigation. 
Access is not contingent upon motive or proposed use of the record. Cf.
_Johnson & Johnson Products Inc._, 11 BNA OSHC 1159, 1160, (No. 81-1339,
1983.  Thus, as motive is irrelevant the results are accessible.

22. Perhaps even more persuasive, is the fact that the Secretary of
Labor has addressed matters of privilege in the standard. However, these
concern generally the confidentiality of employee medical records and
the protection of trade secret information.[[3]] With regard to medical
records there is an exclusion of records created solely In preparation
for litigation which is privilege from discovery. See Section
1910.20(c)(6)(ii)(C). But, there is no comparable exclusion for exposure
records.

23. Finally, in any event, the air quality test is accessible under the
standard because there is a "substantial need" to obtain the results.
The machine was taken out of service after the test. (Exhibit J- 4.)
Thus, Bally's has effectively denied the employees and OSHA a means of
obtaining the results themselves. Bally's asserts that OSHA had agreed
to certain procedures in investigating the case. I agree with Bally's to
the extent that certain procedures were understood by both parties.
Although Bally's argues that OSHA was given ample time to conduct its
own testing, the record evidence indicates that OSHA reasonably relied
on Bally's to conduct the test and submit the results. (Paragraphs 4, 6-7.)

24. The record evidence indicates that OSHA was inundated with cases
during the period of this inspection. For that reason, employees sought
to follow the informal complaint procedure in the hopes of obtaining
faster results. (Testimony of Ms. Kyner, Tr. 127.) Congress intended
that employers assist the Secretary in providing a safe and healthful
working environment. Yelvington, 6 BNA OSHC at 2015. Recognizing that
OSHA was inundated with cases at the time of this complaint it was
reasonable for OSHA to rely an Bally's to conduct the testing.

_"Exposure Record" Issue_

25. Bally's argues that the exposure records are in any case not
accessible because they were not conducted in the "course of
employment." In support of this argument, Bally's submits that the test
was conducted in an experimental manner with a dishwasher which needed
repairs. This argument is weak.

26. Under Section 1910.20(c)(8) "exposure" 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 exposure."
(Emphasis added.)

27. There is persuasive evidence to show that the test was conducted
during the course of employment and under normal conditions. For
example, the dishwasher was put back into working condition for the
test; the test was conducted during the course of normal working hours
and conditions; and, employees worked as usual during the testing.
(Paragraphs 11-13.) As such, the sampling tested the breathing space of
the employees and constitutes exposure under the standard. Hence, the
test results are accessible to OSHA and employee representatives as an
accurate employee exposure record of past exposure that gave rise to the
employee complaints.

_"Statute of Limitations" Issue_

28. Bally's argues that the second citation must be vacated because it
was not issued within the six-month period as required by Section 9(c)
of the Act, 29 U.S.C. § 658(c) This argument fails for the following
reasons.

29. The failure to allow accessibility to exposure records to employee
representatives and OSHA is viewed as a continuing violation. Therefore,
although Bally's had early asserted the work product rule, the violation
continued up to the date the position statement was submitted after the
issuance of the subpoena which was issued on July 30, 1987.

30. Bally's would have the statute of limitations commence on the day
the informal complaint was filed. However, the original complaint merely
alleges the physical problems faced by the employees in the bar. The
facts comprising the second citation arose at least until after the test
results were denied in response to the subpoena and, Bally's attorneys
submitted a position statement stating they would not comply with the
subpoena.

_"Reasonable Promptness" Issue_

31. Bally's argues that the second citation was not issued with
"reasonable promptness" as required by 29 U.S.C. § 658(a).

Bally's has not proven that it has been prejudiced in any way.
Additionally, for the same reasons that the second citation was issued
within the six-month period, I find that the "reasonable promptness"
defense lacks merit. (Paragraphs 28-30.)

32. The second citation issued on January 20, 1988, was within the
six-month period as required by Section 9 (c) of the Act as noted above.

_PENALTIES_

33. The Secretary alleges that Bally's willfully committed the
violations. However, Bally's has consistently and in good faith asserted
the work product privilege in a situation that is novel. The assessment
of the most severe class of penalty is therefore inappropriate. The
violation is found to be not willful. The substantive conditions,
however, giving rise to this case are serious; iodine is a very severe
irritant as evidenced by the numerous complaints. (Testimony of Ms.
Kyner, Tr. 142; Paragraph 3.)

34. Under 17(j) of the Act, penalty assessments are to be based on four
factors; size, gravity, good faith, and history. The OSHA compliance
officer correctly calculated the size, gravity and history in his
assessment. (Exhibit C-5; Exhibit C-6.) Based on an evaluation of these
factors as applied to the circumstances in this case, including Bally's
good faith, a penalty assessment of $600 is appropriate for each of the
citations.




_ORDER_

It is hereby ordered that:

1. The violation of 29 C.F.R. § 1910.20(e)(1)(i) regarding employee
representative access to employee exposure records, Citation 1, Item I
is affirmed, and a penalty of $600 is assessed.

2. The violation of 29 C.F.R. § 1910.20(e)(3)(i) regarding OSHA access
to employee exposure records, Citation 1, Item I is affirmed, and a
penalty of $600 is assessed.

3. The test results which were reviewed in camera are herewith returned
to Bally's. Bally's is directed to make available a copy of the test
results to OSHA and one to the employee representative.

Paul A.Tenney
Judge, OSHRC

DATED: 28 FEB 1989 Washington, D.C.


FOOTNOTES:
[[1]] Commissioner Montoya did not participate in the deliberation or
issuance of this decision.

[[2]] Venuti testified that he asked for a technical report on the glass
washing machine emissions after reading OSHA's March 10 letter to
Bally's, which recounted numerous complaints about the machine. Venuti
testified that he concluded from the letter that Bally's probably would
be subject to claims about the machine from employees and OSHA. He
testified that he told Richard Tartaglio, a lawyer who was Bally's Labor
Relations Manager, to find a prospective expert witness who could
prepare a report. Tartaglio testified that he arranged for the hiring of
J.C. Anderson Associates through Bally's construction consultants,
Coastal Management. Veronica Ghetie of Anderson did the iodine testing.

[[3]] At the time of the investigation and citation, that provision stated:
§ 1910.20 Access to employee exposure and medical records.
(e) Access to records -- (1) General. (i) Whenever an employee or
designated representative requests access to a record, the employer
shall assure that access is provided in a reasonable time, place, and
manner, but in no event later than fifteen ( 15) days after the request
for access is made.

[[4]] At the time of the investigation and citation, that provision
stated, in pertinent part:
(3) OSHA access, (i) Each employer shall, upon request, assure the
immediate access of representatives of the Assistant Secretary of Labor
for Occupational Safety and Health to employee exposure and medical
records and to analyses using exposure or medical records ....

[[5]] The current Commission Rules of Procedure govern these cases,
because the citations were issued after their effective date of December
8, 1986. Rules of Procedure. Final Rule, 51 Fed. Reg. 32,002 (1986).
Neither party argues that those Rules affect the applicability of the
work product doctrine in Commission proceedings, and we hold that they
do not.

[[6]] The judge noted that in an earlier decision by the U. S. Supreme
Court, Justice White, concurring, gave the opinion that the work product
doctrine should be largely confined "to its role as a limitation on
pretrial discovery[,]" United States v. Nobles, 422 U. S. 225,247 (1975)
He urged that generally, the work product rule does not limit a court's
authority to order production of evidence at trial. Id. at 250- 54.
Justice Rehnquist (now Chief Justice) joined in that concurrence.
However, Justice Rehnquist wrote the Court's subsequent opinion in
Upjohn, and Justice White joined in that opinion. There is no issue here
about production of the records at trial or hearing. Also, the majority
in Nobles stated:
[T]he concerns reflected in the work-product doctrine do not disappear
once trial has begun. Disclosure of an attorney's efforts at trial, as
surely as disclosure during pretrial discovery, could disrupt the
orderly development and presentation of his case.
Id. at 239 (dicta).

[[7]] The judge cited certain patent cases as support for the
proposition that factual portions of Bally's report were unprotected.
Loctite Co.v. Fel-Pro Inc., 667 F.2d 577 (7th Cir. 1981); Union Carbide
Co. v. Dow Chem. Co., 619 F.Supp. 1036 (D. Del. 1985). However, the
reasons for compelling disclosure in those cases do not apply here.
Union Carbide involved a request by the defendant in a patent
infringement suit for access to information that is required to be
disclosed to the government as part of a patent application.
..In patent cases, work-product immunity is not "extended to
preparations for ex parte proceedings such as patent proceedings," Choat
v. Rome Industries, Inc., 462 F.Supp. [728] at 732 [(N.D.Ga. 1978)] ;
Hercules v. Exxon Corp., 434 F.Supp. 136, 152 (D.Del. 1977).
Bulk Lift Intl., Inc. v. Flexcon & Sys., Inc., 122 F.R.D. 482, 491 (W.D.
La. 1988), (quoting Detection Sys., Inc. v. Pittway Corp., 96 F.R.D.
152, 155 (W.D.N.Y. 1982). In fact, patent applicants have a legal duty
to disclose to the U. S. Patent and Trademark Office all facts relating
to the equities of granting the application. E.g., Precision Instrument
Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 818
(1945). See 35 U.S.C. § 112 (patent applications must include "full,
clear, concise, and exact" written description of invention, and of
manner and process of making it). See generally, 60 Am Jur 2d Patents,
§§ 999, 1002. Thus, in Union Carbide, the court ruled that documents
sought were not confidential because they were prepared for the patent
application, and not "in anticipation of litigation." 619 F.Supp. at
1046-47, 1050-51.
In Loctite, the court dismissed a patent infringement suit because the
plaintiff failed to establish that a justifiable controversy existed.
The plaintiff refused to disclose the basic technical information on
which it based its claim, on the ground that the information was work
product of its attorney. The court held that the work product doctrine
does not totally shield a litigant from the requirement that it specify
the patent infringement charges. 667 F.2d at 579, 582. Of course, Rule
26(b)(3) only protects specific "documents and tangible things."
Disclosure of the underlying facts may be pursued by other means. The
court in Loctite also stated:
Only where the document is primarily concerned with legal assistance does
it come within these privileges [attorney-client and attorney work
product]; technical information is otherwise discoverable.
Id. at 592. Similarly, it is undisputed here that the records of Bally's
consultant were "primarily concerned" with legal assistance. Id.

[[8]] The term "record" is defined at section 1910.20(c)(10) as follows:
"Record" means any item, collection, or grouping of information
regardless of the form or process by which it is maintained (e.g., paper
document, microfiche, microfilm, X-ray film, or automated data processing).
That definition is unchanged from the one in effect at the time of the
citations, which was found at section 1910.20(c)(9).

[[9]] That rule provides:
A party may discover facts known or opinions held by an expert who has
been retained or specially employed by another party in anticipation of
litigation or preparation for trial and who is not expected to be called
as a witness at trial, only as provided in Rule 35(b) or upon a showing
of exceptional circumstances under which it is impracticable for the
party seeking discovery to obtain facts or opinions on the same subject
by other means.
Bally's expert was not called as a witness and was not expected to be
called. (Indeed, the underlying facts are not the subject of the
citations. Only Bally's failure to turn over records is at issue.) Fed.
R. Civ. P. 35(b) has no relevance here, because it applies only to
physical and mental examination of persons. Thus, the underlying facts
known to the expert would be subject to the same qualified work product
protection as the records.

[[10]] Section 8(c)(1) gives the Secretary authority to require
employers to "make, keep and preserve, and make available to the
Secretary" such records as she:
... in cooperation with the Secretary of Health and Human Services, may
prescribe by regulation as necessary or appropriate for the enforcement
of this Act or for developing information regarding the causes and
prevention of occupational accidents and illnesses.
However, that section has no language authorizing abrogation of work
product principles. Section 8(c)(3) does not even address the type of
records involved here. It requires the Secretary to provide for employee
access only to "records of employee exposures to potentially toxic
materials or harmful physical agents which are required to be monitored
or measured under section 6 [29 U.S.C. § 655]. (Emphasis added.) Section
1910.1000, under which employee exposure to iodine is regulated, does
not require monitoring or measuring per se OSHA's industrial hygienist
testified to the same effect.

[[11]] The only understanding with OSHA that BaIly's has acknowledged
concerns a different matter which arose later. The understanding
concerned how Bally's would respond to OSHA's subpoena. It was agreed
that a position statement by Bally's would be an acceptable form.

 

[[1]] 1910.20 Access to employee exposure and medical records.
(e) Access to records. (1) General. (i) Whenever an employee or
designated representative requests access to a record, the employer
shall assure that access is provided in a reasonable time, place, and
manner, but in no event later than fifteen (15) days after the request
for access is made.

[[2]] 1910.20 Access to employee exposure and medical records.
(e) Access to records. (3) OSHA access. (i) Each employer shall, upon
request, assure the immediate access of representatives of the Assistant
Secretary of Labor for Occupational Safety and Health to employee
exposure and medical records and to analyses using exposure or medical
records.

[[3]] 1910.20 Access to employee exposure and medical records.
(a) Purpose. . . . Except as expressly provided, nothing in this section
is intended to affect existing legal and ethical obligations concerning
the maintenance and confidentiality of employee medical information, the
duty to disclose information to a patient/employee or any other aspect
of the medical care relationship, or affect existing legal obligations
concerning the protection of trade secret information.