“SECRETARY OF LABOR,Complainant.v.BALLY’S PARK PLACE HOTEL & CASINORespondentOSHRC 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’sPark Place Hotel & Casino (\”Bally’s) for review of a decision by aCommission Administrative Law Judge. The judge held that Bally’sviolated two provisions of the records access rule, 29 C.F.R. ? 1910.20,promulgated by the Secretary’s Occupational Safety and HealthAdministration (\”OSHA\”). His basic grounds were that Bally’s refused toturn over to OSHA and to an employee representative a copy of certainrecords of employee exposure to airborne iodine at Bally’s AtlanticCity, N.J., casino. Bally’s argues that the records are exempt fromdisclosure under the attorney work product doctrine–or rule–becausethey were prepared for its attorney in anticipation of litigation. Wefind that Bally’s objections are well founded, and therefore we vacatethe citations.BACKGROUNDBased on a complaint by a Bally’s employee, OSHA wrote Bally’s on March10, 1987,to request that the company investigate iodine emissions froman automatic, cold water glass washing machine located in a bar at itscasino. OSHA regulates employee exposure to iodine through the standardcodified at 29 C.F.R. ? 1910.1000. Bally’s general counsel, DennisVenuti, ordered that the machine be tested for iodine emissions, andthat a confidential report of the results be sent to him. Bally’s hiredan outside consultant to do the testing. Venuti testified withoutcontradiction that the test results were prepared for him inanticipation of litigation.[[2]]Relying upon the attorney work product rule, Bally’s denied repeatedrequests by the employees’ union representatives, and by OSHA, to beprovided with a copy of the iodine sampling results. The Secretaryissued an administrative subpoena to Bally’s for the documents. Bally’srefused to comply, again on the ground of the work product rule.The Secretary pursued the subpoena no further. Rather, she issued acitation to Bally’s for a willful violation of section1910.20(e)(1)(i)[[3]] for failure to provide the union representativewith access to the iodine sampling results. That citation is the subjectof Docket No. 87-1849. Later, the Secretary cited Bally’s for a willfulviolation of section 1910.20(e)(3)(i) [[4]]for failure to provide OSHAwith access to those records. That citation is the subject of Docket No.88-0337. The judge affirmed the citations as serious and assessedpenalties of $600 for each.DISCUSSIONa. Whether the work product rule applies to the records soughtThe attorney work product rule has been codified in Rule 26(b)(3) of theFederal Rules of Civil Procedure, which provides:[A] party may obtain discovery of documents and tangible thingsotherwise discoverable … and prepared in anticipation of litigation orfor trial by or for another party or by or for that other party’srepresentative (including the other party’s attorney, consultant,surety, indemnitor, insurer, or agent) only upon a showing that theparty seeking discovery has substantial need of the materials in thepreparation of the party’s case and that the party is unable withoutundue hardship to obtain the substantial equivalent of the materials byother means. . . .Fed. R. Civ. P. 26 (b)(3). That rule is applicable in Commissionproceedings, because the Commission has not adopted a specific provisiondiffering from it. 29 U.S.C. ? 661(g) (\”Unless the Commission hasadopted a different rule, its proceedings shall be in accordance withthe 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 specificprovision, procedure shall be in accordance with the Federal Rules ofCivil Procedure\”). See Continental Oil Co., 9 BNA OSHC 1737, 1741 & n.61981 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 adifferent part of the rule. Those exceptions are not relevant here.Under the express terms of the rule, the qualified work productprotection of Rule 26(b)(3) applies to the iodine sampling records, fordiscovery purposes, because: (1) the records are documents, (2) theywere \”prepared in anticipation of litigation,\” and (3) they wereprepared for Bally’s attorney by Bally’s consultant or agent. SeeContinental 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 againstBally’s over slip and fall could reasonably be anticipated, was coveredby Rule 26(b)(3)).Nevertheless, the Secretary argues that Rule 26(b)(3) does not governthis case because it involves a subpoena issued before the litigationbegan, rather than a discovery request. However, the Supreme Court hasapplied the Rule 26(b)(3) criteria to determine whether a comparableinvestigative tool, an Internal Revenue Service (\”IRS\”) summons, shouldbe enforced:Nothing in the language of the IRS summons provisions or theirlegislative history suggests an intent on the part of Congress topreclude application of the work-product doctrine. Rule 26(b)(3)codifies the work-product doctrine, and the Federal Rules of CivilProcedure are made applicable to summons enforcement proceedings by Rule81(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 theFederal Rules of Civil Procedure to proceedings to enforce OSHAsubpoenas. It provides:… These rules apply to proceedings to compel the giving of testimonyor production of documents in accordance with a subpoena issued by anofficer or agency of the United States under any statute of the UnitedStates except as otherwise provided by statute or by rules of thedistrict court or by order of the court in the proceedings.(Emphasis added). See also, United States v. Rockwell Intl., 897 F.2d1255, 1265-66 (3d.Cir. 1990) (attorney work product rule may beinterposed against IRS summons). OSHA subpoenas are \”issued by anofficer or agency of the United States,\” pursuant to section 8(b) of theOccupational Safety and Health Act (\”the Act\”), 29 U.S.C. ? 659(b).There is no provision affecting the application of the Federal Rules tosuch subpoenas.We hold that the Rule 26(b)(3) criteria determine whether disclosure ofBally’s report may be compelled by citation, subpoena, or discovery.Rule 26(b)(3) codifies an historical \”public policy underlying theorderly prosecution and defense of claims.\” Hickman v. Taylor, 329 U.S.495, 510 (1947) (in performing duty to gather facts for court andclient, \”it is essential that a lawyer work…free from unnecessaryintrusion by opposing parties and their counsel\”) The mere form of theproceeding should not change the protections for an attorney’s workproduct. Here, the Secretary could have attempted judicial enforcementof the subpoena she issued. As mentioned above, the work product rulewould have been fully applicable in such a proceeding.[[6]]The judge held that the records contained test results and other factualinformation and were unprotected by the work product rule. He statedthat \”an in camera inspection revealed that the test was purelytechnical information.\” However, as applicable case precedent makesclear, factual portions of a document covered by the qualified privilegeof Rule 26(b)(3) are protected by its express terms, unless the specialshowing of need and lack of alternatives is made. Continental Oil, 9 BNAOSHC at 1741-42, 1981 CCH OSHD at pp. 31,579-80 (factual recordscontained in respondent’s expert investigative report prepared forlitigation were protected by work product rule).[[7]]The Secretary argues that even if the consultant’s report is protectedby the work product doctrine, the cited standards should be construed torequire disclosure of the factual Information in It. She cites therepeated statements in the preamble to section 1910.20 that the basicreason for the regulation is the need for \”information.\” E.g., Access toEmployee Exposure and Medical Records: Final Rule, 45 Fed. Reg. 35,212,35,213 (1980). However, section 1910.20 is expressly limited to accessto \”records.\”[[8]] That rule does not require the employer to divulgeinformation, other than the records that are subject to access under therule. A regulation may not be construed to mean what the agency mighthave intended, but did not adequately express. E.g., Bunge Corp., 12 BNAOSHC 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 underlyingfacts mentioned in documents may be pursued by other means. In thesecases, however, the Secretary has not attempted by other means to obtainthe facts she seeks. Thus, we only decide whether the Secretary isentitled to the records in question. We note, however, that discovery ofthe underlying facts from Bally’s expert consultant might be subject torestrictions in these circumstances, under Fed. R. Civ. P. 26(b)(4)(B).[[9]]b. Whether the Secretary has abrogated work product protection foremployee exposure records under ? 1910.20The judge accepted the position of the Secretary’s counsel that inpromulgating the records access rule, the Secretary eliminated anyexception to the disclosure of covered records which may have otherwiseapplied under the work product doctrine. He based that finding ondevelopments subsequent to the rule’s promulgation. We disagree withthat conclusion. As mentioned above, the qualified protection forattorney work product has emerged from a basic public policy that hashistorical roots in the common law tradition.It is a well-established principle of statutory construction that \”[t]hecommon law … ought not to be deemed to be repealed, unless thelanguage 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 orauthorizing the Secretary to abrogate the work product doctrine. TheSecretary’s counsel argues that the Act provides authority to abrogatework product protection because Congress provided for access to exposurerecords 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, thoseprovisions do not mention the work product doctrine. Nor do theyexpressly grant authority to abrogate it. [[10]] The legislative historyof the Act also does not indicate an intention to authorize theSecretary to abrogate the work product doctrine.Even assuming that something less than \”clear and explicit\” statutoryauthority would he sufficient to authorize abrogation of the workproduct doctrine as to exposure records, no such authority may even beimplied here. As discussed above, section 12(e) of the Act affirmativelyincorporates the work product doctrine into Commission proceedings,through the Federal Rules of Civil Procedure. Under section 12(e), onlythe Commission may alter the application of the work product doctrine inits proceedings, and it has not done so. It would not be reasonable toconclude that section 8(c) of the Act implicitly gives the Secretaryauthority to abrogate work product protection, in view of the fact thatCongress contemplated that the work product doctrine would apply inproceedings to review contested citations.Moreover, an interpretation of a statute or regulation that is contraryto a clear public policy, such as the attorney work product doctrine, isnot favored. See, e.g., Creque v. Luis, 803 F.2d 92, 96 (3d Cir. 1986)(clear public policy considerations \”exert a significant influence inthe process of statutory interpretation by the courts\”) quoting 2ASutherland, Statutory Construction, ? 56.01 (4th ed. 1984). Seegenerally Pillsbury v. United Engg. Co., 342 U.S. 197 (1952). Underthese circumstances, we will not defer to the interpretation of the Actadvanced by the Secretary’s counsel. Cf. Martin v. OSHRC (CF& I SteelCorp.), 111 S.Ct. 1171, 1178-79(1991) (Secretary’s interpretations ofthe Act and of her regulations are entitled to judicial deference wherereasonable).Because the Act does not authorize abrogation of the work productdoctrine, the Secretary may not abrogate the doctrine by regulation. \”Itis axiomatic that an administrative agency’s power to promulgatelegislative regulations is limited to the authority delegated byCongress.\” Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988).The Secretary essentially concedes that there can be no abrogation ofthe doctrine without sufficient statutory authority.Even if the Act had authorized the Secretary to abrogate work productprotection for exposure records, there is no reasonable basis toconclude that she has done so. The original records access rulecontained no provision concerning documents prepared in anticipation oflitigation. 45 Fed. Reg. 35,212. Nor did its Preamble discuss thesubject. The Secretary’s counsel argues that an intent to abrogate workproduct protection for exposure records is found in an interpretation ofthe rule that that the Secretary issued in 1981. Access to EmployeeExposure 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 employermust provide access to records which are created solely in anticipationof litigation and which are otherwise privileged from discovery underthe prevailing rules of procedure or evidence. An example could be amedical opinion prepared for the employer for purposes of aiding theemployer’s case by a company physician after a workmen’s compensationclaim has been filed. It has been OSHA’s interpretation that thestandard does not contemplate coverage of such a record if the recordwould not otherwise be available to the employee or his attorney in thelitigation. On the other hand, the mere fact that a medical record (seedefinition at 29 CFR 1910.20(c)(6)) not originally created inanticipation of specific litigation will ultimately be used as evidencein a private legal proceeding does not put it outside the scope of thestandard.Id. (emphasis added). Although the interpretation uses medical recordsas an example of documents that might not be covered by the rule, thepassage covers records generally. Read as a whole, the passage indicatesto us that the Secretary actually intended not to abrogate the workproduct doctrine with respect to exposure records. The Commissionrecently interpreted the same passage, in upholding the Secretary’sposition that the records access rule does not affect the recordsdisclosure provisions of a worker’s compensation law:OSHA made clear that the rule does not require disclosure of recordscreated by the employer in anticipation of litigation and which would beunavailable to the employee in [Worker’s Compensation] proceedings forthat reason.General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064, 2067, 1991CCH OSHD ? 29,240, pp. 39,166-67 (No. 82-630, 1991). The Secretary’s1981 interpretation indicates an intent to apply the rule consistentlywith the work product doctrine.The Secretary further argues that the 1988 revisions to the recordsaccess rule shows an intent by the Secretary to abrogate protection forexposure records. Access to Employee Exposure and Medical Records: FinalRule, 53 Fed. Reg. 38,140 (1988). At that time, the Secretary amendedthe definition of \”employee medical record\” to exclude \”records createdsolely in preparation for litigation which are privileged from discoveryunder 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 intothe standard regarding employee exposure records.However, the preamble to the 1988 revisions reaffirmed and reprinted the1981 interpretation in discussing the term employee medical records. Id.at 38,150-51. As discussed above, we conclude that the 1981interpretation actually shows that the Secretary did not intend toabrogate work product protection for exposure records. We also concludethat the Secretary’s silence on abrogation of the work product rulerelative to exposure records in the 1988 revisions does not require theconclusion that abrogation as to that category of records was the resultwhich she intended. If anything, that silence may be indicative of thefact that more often than with medical records, exposure records areprepared pursuant to the requirements of an OSHA standard, rather thanto prepare for prospective litigation, and thus art not covered by theattorney work product rule. Consequently, application of the workproduct rule in the context of exposure records would arise less oftenthan with medical records. That could explain why in the 1988 revisionsthe Secretary made the clarification as to medical records, but saw noneed to address the lesser issue of abrogation as to exposure records.Moreover, the Secretary has not established a pattern of enforcement byOSHA in which the agency has considered the work product rule as havingbeen abrogated as to exposure records.For these reasons, we find no reasonable basis to conclude that theSecretary intended to abrogate work product protection for exposurerecords under the records access rule. Under these circumstancesdeference is not due to the Secretary’s interpretation of the rule. Compare CF&I Steel Corp. at 1179 (reviewing court may consult theSecretary’s interpretive rules \”to determine whether the Secretary hasconsistently applied the interpretation embodied in the citation, afactor bearing on the reasonableness of the Secretary’s position\”) andGardebring v. Jenkins, 485 U.S. 415, 429-30 (1988) (agency’sinterpretation of its regulation upheld where there was no claim that itwas inconsistency with Constitutional or statutory mandate, with plainlanguage of regulation, or with agency’s intent when promulgatedregulation) with Bowen v. Georgetown Univ. Hospital, Id. at 212 (SupremeCourt has never required deference to \”agency litigation positions thatare wholly unsupported by regulations, rulings, or administrationpractice [or] to an agency counsel’s interpretation of a statute wherethe agency itself has articulated no position on the question\”) andInv. Co. Inst. v. Camp, 401 U.S. 617, 617, 629-39 (1971) ( Courtrejected interpretation of agency regulation urged by agency’s appellatecounsel, where interpretation was contrary to literal language andintent of statute).Finally, we note that the 1988 revisions by themselves have no effect onthese cases. The citations predate those revision by many months, andonly allege violations of the original records access rule.c. Whether the Secretary made the special showing that would justifydisclosure of attorney work productThe qualified work product protection of Fed. R. Civ. P. 26(b)(3) may beovercome if the Secretary \”has substantial need of her case, and \”isunable without undue hardship to obtain the substantial equivalent ofthe materials by other means.\” The Commission has required a showingthat other discovery methods would be sufficient to obtain the factssought in order to justify discovery of work product. Continental OilCo., 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, theyare discoverable because the Secretary has a substantial need for them. He concluded that Bally’s effectively denied OSHA and the employees ameans of obtaining the results themselves, because the machine was takenout of service after Bally’s test. He further found that OSHA reasonablyrelied on Bally’s to conduct the test and submit the results to OSHA. Heessentially held that there was an understanding between OSHA andBally’s to that effect. Bally’s denies that such an understandingexisted, and argues that the Secretary failed to make the requiredshowings of need and lack of alternatives. The Secretary does notaddress these issues.We conclude that, without undue hardship, OSHA would have been able toobtain substantially equivalent test results. The judge cited noevidence that Bally’s precluded OSHA from testing the machine, and wehave found none. Bally’s represents that it did not deny OSHA theopportunity to test the machine, and notes that OSHA never asked toconduct its own tests. The evidence indicated that Bally’s performed itsown tests by putting the machine back in service temporarily for thatpurpose, 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 ina similar way.The evidence indicates that OSHA’s Camden, New Jersey, area office wasbacklogged with scheduled inspections when the Bally’s employee firstfiled the complaint. The supervisory industrial hygienist at the areaoffice, Phyllis Kyner, testified that she initially told the complainingemployee that it might take OSHA a month or two to conduct aninspection. The employee then requested and received quicker actionthrough OSHA’s nonformal complaint procedure. The action taken by OSHAincluded sending the March 10, 1987 letter that informed Bally’s of theiodine emissions problem. Thus, we find that the Secretary has not shownthat OSHA was unable, without undue hardship, to obtain the necessaryinformation by means other than Bally’s records.The judge specifically found that, because of the backlog of scheduledinspections, \”OSHA reasonably relied on Bally’s to conduct the test andsubmit the results.\” His first ground for that finding is that \”Congressintended that employers assist the Secretary in providing a safe andhealthful working environment.\” In support, he cited Yelvington WeldingServ., 6 BNA OSHC 2013, 1978 CCH OSHD ? 23,092 (No. 15958,1978).However, requiring an employer to turn over test results prepared inanticipation of litigation against it was not one of the forms ofemployer assistance referred to by Congress. The forms of employerassistance discussed in Yelvington were having representatives accompanyOSHA compliance officers on inspections, and reporting major accidentsto OSHA, as required by 29 C.F.R. ? 1904.8.The judge’s second ground for that finding is that OSHA had anunderstanding with Bally’s that the company would turn its test resultsover to the agency. However, the evidence he cited in support of thisfinding merely indicates that OSHA requested Bally’s to conduct aninternal investigation of iodine emissions, and to provide OSHA withcopies of any tests that Bally’s conducted. It does not indicate thatthe company ever had a meeting of the minds with OSHA that it woulddisclose the test results to the agency[[11]]There was conflicting testimony about one discussion on the sharing oftest results that occurred on the day the tests were conducted. JeromePage, business representative for the employees’ union, testified thathe asked Veronica Ghetie, who conducted the test, whether he could havea copy of the report, and she replied, \”No problem, none at all.\” Pagealso testified that Bally’s Labor Relations Manager Tartaglio thenwalked up, that Ghetie asked him if it would be \”okay\” to give Page acopy of the report, and that Tartaglio replied, \”No problem.\”Tartaglio testified, however, that all he said was \”No,\” when Pagerequested a copy of the report from Ghetie that day. The judge creditedTartaglio’s testimony on this issue. The Secretary does not challengethat finding by the judge. In any event, Bally’s consistently deniedrequests by Page and OSHA officials for the test results, beginningshortly after the test was made. OSHA has not established that itreasonably relied on Bally’s to submit the test results as a basis forthe 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 unduehardship to obtain the substantial equivalent by other means. Becausethe Secretary has failed to establish the second prong of that test, weneed not reach the issue of whether she established a substantial needfor the test results.Thus, we conclude that the records sought areexempt from disclosure under the qualified protection of the attorneywork product rule.CONCLUSIONFor the foregoing reasons, we reverse the decision of the administrativelaw judge and vacate the citations issued to Bally’s in these cases.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: November 7, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.BALLY’S PARK PLACE HOTEL & CASINO,Respondent.OSHRC Docket Nos. 87-1849 & 88-0337Region IIAPPEARANCES:HARRY W. SCOTT, JR., ESQUIREU.S. Department of Labor Office of the SolicitorFor the ComplainantDAVID R. MILLER, ESQUIREGrotta, 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 Safetyand Health Administration (hereinafter OSHA) of sore throats, eyeirritation, and skin rashes. After an investigation and a chain ofrelated 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 areafollowing a series of communications with OSHA, the Atlantic city HealthDepartment, and employee representatives. Thereafter, Bally’s denied theemployee representative and OSHA access to the test results based on thework product rule.On July 30, 1987, the Secretary served upon Bally’s a subpoena ducestecum. The subpoena requested any documents containing informationconcerning employee exposure to a toxic substance or harmful physicalagent such as: (1) environmental workplace monitoring, (2) biologicalmonitoring results, or (3) any other record which revealed the identityof a toxic substance or harmful physical agent. (Exhibit R-2.) Again,Bally’s asserted the work product rule and refused to comply with thesubpoena. On August 17, 1987, Bally’s submitted through its attorneys, aposition statement which more fully explained their reasons for notcomplying 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 notprovide access to records containing iodine sampling results conductedon or about May 4 & 5, 1987, at casino service bar #2 within areasonable time (no later than 15 days) when requested by an employee ordesignated 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 willfulviolation. The second citation, Citation No. 1, Item 1, alleges aviolation of 29 C.F.R. ? 1910.20(e)(3)(i) [[2]]. The Complaint allegesthat 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, NewJersey, OSHA Area Director or his representative after said records weresubpoenaed. (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. Thecases were consolidated for hearing purposes only. (Tr. 4) A hearing washeld on September 8, 1988, in Philadelphia, Pennsylvania; post hearingbriefs have been filed and considered._DECISION_1. Bally’s has its principal place of business in Atlantic City, NewJersey, and is engaged in operating a casino hotel. Many of thematerials and supplies used and\/or manufactured by Bally’s originatedand\/or were shipped outside the State of New Jersey. (Complaint andAnswer, Paragraphs 2 & 3.) Thus, Bally’s is an employer engaged in abusiness affecting commerce within the meaning of section 3(5) of theAct, 29 U.S.C. ? 652(5).2. Casino service bar #2 utilized a dishwasher that required aniodine-chlorine additive called Mikroklene during the cold water rinsecycle. (Testimony of Ms. Kyner, Tr. 143; Exhibit C-1.) Ms. Jean Quinn, abartender at casino service bar #2 for almost nine years, noted that theeight-year-old dishwasher required frequent service due to damagedpipes, flooding, and failure to hold chemical settings. (Tr. 18, 25,27-28.) The dishwasher was not operated correctly; this resulted iniodine vapor fumes. (Testimony of Mr. Page, Tr. 32-33; that of Mr.Tartaglio, Tr. 57; that of Ms. Kyner, Tr. 128.) These fumes causednumerous employee complaints. (Testimony of Mr. Venuti, Tr. 164; ExhibitC-2.)3. Ms. Quinn and other employees complained of the condition in the bar.(Testimony of Ms. Quinn, Tr. 28.) Complaints were of the followingconditions: bloodshot eyes, eye infections, burnt cheeks, nose runs,sore throats, frequent bronchitis, skin rashes, and other skinconditions. (Testimony of Ms. Quinn, Tr. 16; that of Ms. Kyner, Tr. 126,142.) In addition, it was complained that the iodine vapors weresufficient to stain walls, ceilings, and employees’ shirts brown oryellow.(Testimony of Mr. Siletsky, Tr. 94.)4. On March 10, 1987, Mr. Allendorf, Area Director of Camden OSHA, byletter requested BalIy’s to investigate the alleged condition and makeany necessary corrections or modifications and submit any supportingdocuments 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 fullyinvestigated and had no merit. (Exhibit C-1.) Bally’s investigationincluded a check of the venting system and a review of the Mikroklenedirections for use. Mr. Tartaglio stated that improper use by barporters resulted in an inaccurate reading during a daily iodine chlorinetest that may have caused a strong odor of iodine. In support of thefindings, Mary Lou Antinozzi, Director of Hotel Services, submitted anaffidavit stating that \”the manner in which Bally’s maintains themachine contradicts the allegations raised by complainant (employees) inthis matter.\” (Exhibit C-1.) However, Bally’s did not conduct an airsampling test at this time to determine whether the complaints were valid.6. On numerous occasions OSHA was in contact with Bally’s regarding thesituation in general and air sampling in particular. (Paragraphs 4,6-7.) on April 3, 1987, Ms. Kyner spoke with Mr. Tartaglio and suggestedone way to settle the complaint was to get an air sample. (Testimony ofMs. Kyner, Tr. 129.) In a follow up letter dated April 3, 1987, Mr.Allendorf noted that Bally’s investigation left the condition in openstatus and suggested that a way to prove no violation was by airsampling. (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 conversationof May 6th, Mr. Tartaglio said they would get a sampling firm to comein. (Testimony of Mr. Siletsky, Tr. 78.) During the conversation of May12th, Mr. Tartaglio told Mr. Siletsky Bally’s would need more time toget the results. (Testimony of Mr. Siletsky, Tr. 81.)8. Mr. Tartaglio contacted Bally’s construction consulting firm toarrange an air quality test. (Tr. 53; Testimony of Mr. Venuti, Tr.165-166, 183.) The construction firm, in turn, contacted J.C. AndersonAssociates to perform the air quality test.9. The dishwasher was put out of service from April 20, 1987, to the dayof the testing on May 4, 1987. (Testimony of Miss Quinn; Tr. 24-25; thatof Ms. Kyner, Tr. 149-150.)10. Ms. Veronica Ghetie, an employee of J.C. Anderson Associates and anagent 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 asfollows. The dishwasher and the service bar were placed in a fullyoperational mode by the day of the test. Toward that end, Bill McNulty,manager of Bally’s Beverage division, made sure that Ms. Quinn would bepresent for the entire testing period. (Testimony of Ms. Quinn, Tr. 8,21. ) The dishwasher was serviced on the day of the test to ensureproper 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 aregular work day for Ms. Quinn. (Testimony of Mr. Tartaglio, Tr. 202.)Other employees such as cocktail waitresses and the bar porter worked inand 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 qualitytest. Apparently, the box was to be worn by the bartender during theexamination to ensure that the breathing space of the employees wasbeing monitored. Casino service bar #2 was about five feet long by fourfeet in width. (Testimony of Ms. Quinn, Tr. 11-12.) Although Ms. Quinnwas supposed to wear the black box during the actual testing, due to thelimited space it was placed on the bar. It is inferred that Ms. Quinn’sinability to wear the box did not adversely affect the results, giventhe confined area of the bar.13. In sum, the air quality test was conducted during the course of anormal workday and under normal work conditions. Adequate safeguardswere taken to ensure an accurate test result by Bally’s management, Ms.Ghetie, and employees. The exposure tested on May 4 and 5, 1987, wastypical of that received previously while the dishwasher was in service.The evidence demonstrates that the air quality test constitutes a recordcontaining relevant information regarding employee exposure to toxicsubstances. 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 businessrepresentative, went to the service bar. Mr. Page asked Mr. Tartagliofor a copy of the test results and he denied the request. (Tr. 200.) OnMay 29, 1987, Bally’s denied OSHA the test results based on the workproduct rule. (Testimony of Mr. Siletsky, Tr. 84-85, 122-123; that ofMr. 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 OSHAcompliance officer the test results. (Testimony of Ms. Kyner, Tr. 136.)After Mr. Venuti received the subpoena, he informed Ms. Kyner that thetest results would not be made available and that a position statementwould follow. (Testimony of Mr. Venuti, Tr. 174.) Finally, on August 17,1987, a position statement was filed wherein Bally’s refused to giveOSHA the test results. (Testimony of Ms. Kyner, Tr. 138-139.)15. There are three main issues for decision in this case and oneincidental issue. The main issues are: whether the air quality test isprotected by the work product doctrine; whether the air quality testreport constituted an exposure record under the standard; and whetherthe second citation, issued on January 20, 1988, was issued within thesix-month period of Section 9 (c) of the Act. The incidental issue iswhether the second citation was issued with \”reasonable promptness.\”\”Work-Product\” Issue16. Bally’s argues that the air quality test results are work product ofan attorney in anticipation of litigation and therefore not subject todisclosure. However, for the reasons stated below, I conclude that theair quality test results do not qualify as work product and are subjectto disclosure.17. The purpose of the work product doctrine is to permit an attorney toperform his duties without unnecessary interference from opposingcounsel. The doctrine seeks to protect an attorney’s mental impressions,obtained or prepared by an attorney or his agent with an eye towardlitigation. Hickman v. Taylor, 67 S.Ct. 385, 392 (1947).18. Courts have recognized, however, that there are limitations on thescope of the doctrine. For example, only where a document is primarilyconcerned with legal assistance is it protected; technical informationis otherwise discoverable. Loctite Co. v. Fel-Pro Inc. & Felt ProductsMfg. Co., 667 F. 2d 577, 582 (7th Cir. Ill. 1981). Specifically,technical information, such as the results of research, tests, andexperiments, given to the attorney and not requiring a legalinterpretation are without protection. Union Carbide Co. v. Dow ChemicalCo., 619 F. Supp. 1036, 1047 (D.C.Del. 1985).19. Moreover, even if the work product rule were not so confined, thereare other limitations on its scope. The work product rule is largelyconfined 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 obtainthe 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 waspurely technical information. Mr. Venuti also conceded that the testresult as confidential materials. _Union Carbide Co._, 619 F. Supp. at1047. As the test results in this case are factual and require no legalinterpretation they are devoid of protection under the work product rule.21. Moreover, it is irrelevant whether the primary motive in directingMs. 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 ofLabor has addressed matters of privilege in the standard. However, theseconcern generally the confidentiality of employee medical records andthe protection of trade secret information.[[3]] With regard to medicalrecords there is an exclusion of records created solely In preparationfor litigation which is privilege from discovery. See Section1910.20(c)(6)(ii)(C). But, there is no comparable exclusion for exposurerecords.23. Finally, in any event, the air quality test is accessible under thestandard 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 ofobtaining the results themselves. Bally’s asserts that OSHA had agreedto certain procedures in investigating the case. I agree with Bally’s tothe extent that certain procedures were understood by both parties.Although Bally’s argues that OSHA was given ample time to conduct itsown testing, the record evidence indicates that OSHA reasonably reliedon Bally’s to conduct the test and submit the results. (Paragraphs 4, 6-7.)24. The record evidence indicates that OSHA was inundated with casesduring the period of this inspection. For that reason, employees soughtto follow the informal complaint procedure in the hopes of obtainingfaster results. (Testimony of Ms. Kyner, Tr. 127.) Congress intendedthat employers assist the Secretary in providing a safe and healthfulworking environment. Yelvington, 6 BNA OSHC at 2015. Recognizing thatOSHA was inundated with cases at the time of this complaint it wasreasonable 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 notaccessible because they were not conducted in the \”course ofemployment.\” In support of this argument, Bally’s submits that the testwas conducted in an experimental manner with a dishwasher which neededrepairs. This argument is weak.26. Under Section 1910.20(c)(8) \”exposure\” means \”that an employee issubjected to a toxic substance or harmful physical agent in the courseof employment . . . and includes past exposure and potential exposure.\”(Emphasis added.)27. There is persuasive evidence to show that the test was conductedduring the course of employment and under normal conditions. Forexample, the dishwasher was put back into working condition for thetest; the test was conducted during the course of normal working hoursand conditions; and, employees worked as usual during the testing.(Paragraphs 11-13.) As such, the sampling tested the breathing space ofthe employees and constitutes exposure under the standard. Hence, thetest results are accessible to OSHA and employee representatives as anaccurate employee exposure record of past exposure that gave rise to theemployee complaints._\”Statute of Limitations\” Issue_28. Bally’s argues that the second citation must be vacated because itwas 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 followingreasons.29. The failure to allow accessibility to exposure records to employeerepresentatives and OSHA is viewed as a continuing violation. Therefore,although Bally’s had early asserted the work product rule, the violationcontinued up to the date the position statement was submitted after theissuance of the subpoena which was issued on July 30, 1987.30. Bally’s would have the statute of limitations commence on the daythe informal complaint was filed. However, the original complaint merelyalleges the physical problems faced by the employees in the bar. Thefacts comprising the second citation arose at least until after the testresults were denied in response to the subpoena and, Bally’s attorneyssubmitted a position statement stating they would not comply with thesubpoena._\”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 issuedwithin 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 thesix-month period as required by Section 9 (c) of the Act as noted above._PENALTIES_33. The Secretary alleges that Bally’s willfully committed theviolations. However, Bally’s has consistently and in good faith assertedthe work product privilege in a situation that is novel. The assessmentof the most severe class of penalty is therefore inappropriate. Theviolation is found to be not willful. The substantive conditions,however, giving rise to this case are serious; iodine is a very severeirritant 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 fourfactors; size, gravity, good faith, and history. The OSHA complianceofficer correctly calculated the size, gravity and history in hisassessment. (Exhibit C-5; Exhibit C-6.) Based on an evaluation of thesefactors as applied to the circumstances in this case, including Bally’sgood faith, a penalty assessment of $600 is appropriate for each of thecitations._ORDER_It is hereby ordered that:1. The violation of 29 C.F.R. ? 1910.20(e)(1)(i) regarding employeerepresentative access to employee exposure records, Citation 1, Item Iis affirmed, and a penalty of $600 is assessed.2. The violation of 29 C.F.R. ? 1910.20(e)(3)(i) regarding OSHA accessto employee exposure records, Citation 1, Item I is affirmed, and apenalty of $600 is assessed.3. The test results which were reviewed in camera are herewith returnedto Bally’s. Bally’s is directed to make available a copy of the testresults to OSHA and one to the employee representative.Paul A.TenneyJudge, OSHRCDATED: 28 FEB 1989 Washington, D.C.FOOTNOTES:[[1]] Commissioner Montoya did not participate in the deliberation orissuance of this decision.[[2]] Venuti testified that he asked for a technical report on the glasswashing machine emissions after reading OSHA’s March 10 letter toBally’s, which recounted numerous complaints about the machine. Venutitestified that he concluded from the letter that Bally’s probably wouldbe subject to claims about the machine from employees and OSHA. Hetestified that he told Richard Tartaglio, a lawyer who was Bally’s LaborRelations Manager, to find a prospective expert witness who couldprepare a report. Tartaglio testified that he arranged for the hiring ofJ.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 ordesignated representative requests access to a record, the employershall assure that access is provided in a reasonable time, place, andmanner, but in no event later than fifteen ( 15) days after the requestfor access is made.[[4]] At the time of the investigation and citation, that provisionstated, in pertinent part:(3) OSHA access, (i) Each employer shall, upon request, assure theimmediate access of representatives of the Assistant Secretary of Laborfor Occupational Safety and Health to employee exposure and medicalrecords 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 December8, 1986. Rules of Procedure. Final Rule, 51 Fed. Reg. 32,002 (1986).Neither party argues that those Rules affect the applicability of thework product doctrine in Commission proceedings, and we hold that theydo not.[[6]] The judge noted that in an earlier decision by the U. S. SupremeCourt, Justice White, concurring, gave the opinion that the work productdoctrine should be largely confined \”to its role as a limitation onpretrial discovery[,]\” United States v. Nobles, 422 U. S. 225,247 (1975)He urged that generally, the work product rule does not limit a court’sauthority 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 inUpjohn, and Justice White joined in that opinion. There is no issue hereabout production of the records at trial or hearing. Also, the majorityin Nobles stated:[T]he concerns reflected in the work-product doctrine do not disappearonce trial has begun. Disclosure of an attorney’s efforts at trial, assurely as disclosure during pretrial discovery, could disrupt theorderly development and presentation of his case.Id. at 239 (dicta).[[7]] The judge cited certain patent cases as support for theproposition that factual portions of Bally’s report were unprotected.Loctite Co.v. Fel-Pro Inc., 667 F.2d 577 (7th Cir. 1981); Union CarbideCo. v. Dow Chem. Co., 619 F.Supp. 1036 (D. Del. 1985). However, thereasons for compelling disclosure in those cases do not apply here.Union Carbide involved a request by the defendant in a patentinfringement suit for access to information that is required to bedisclosed to the government as part of a patent application…In patent cases, work-product immunity is not \”extended topreparations for ex parte proceedings such as patent proceedings,\” Choatv. 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 dutyto disclose to the U. S. Patent and Trademark Office all facts relatingto the equities of granting the application. E.g., Precision InstrumentMfg. 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 ofmanner and process of making it). See generally, 60 Am Jur 2d Patents,?? 999, 1002. Thus, in Union Carbide, the court ruled that documentssought were not confidential because they were prepared for the patentapplication, and not \”in anticipation of litigation.\” 619 F.Supp. at1046-47, 1050-51.In Loctite, the court dismissed a patent infringement suit because theplaintiff failed to establish that a justifiable controversy existed.The plaintiff refused to disclose the basic technical information onwhich it based its claim, on the ground that the information was workproduct of its attorney. The court held that the work product doctrinedoes not totally shield a litigant from the requirement that it specifythe patent infringement charges. 667 F.2d at 579, 582. Of course, Rule26(b)(3) only protects specific \”documents and tangible things.\”Disclosure of the underlying facts may be pursued by other means. Thecourt in Loctite also stated:Only where the document is primarily concerned with legal assistance doesit come within these privileges [attorney-client and attorney workproduct]; technical information is otherwise discoverable.Id. at 592. Similarly, it is undisputed here that the records of Bally’sconsultant 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 informationregardless of the form or process by which it is maintained (e.g., paperdocument, microfiche, microfilm, X-ray film, or automated data processing).That definition is unchanged from the one in effect at the time of thecitations, 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 hasbeen retained or specially employed by another party in anticipation oflitigation or preparation for trial and who is not expected to be calledas a witness at trial, only as provided in Rule 35(b) or upon a showingof exceptional circumstances under which it is impracticable for theparty seeking discovery to obtain facts or opinions on the same subjectby other means.Bally’s expert was not called as a witness and was not expected to becalled. (Indeed, the underlying facts are not the subject of thecitations. 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 tophysical and mental examination of persons. Thus, the underlying factsknown to the expert would be subject to the same qualified work productprotection as the records.[[10]] Section 8(c)(1) gives the Secretary authority to requireemployers to \”make, keep and preserve, and make available to theSecretary\” such records as she:… in cooperation with the Secretary of Health and Human Services, mayprescribe by regulation as necessary or appropriate for the enforcementof this Act or for developing information regarding the causes andprevention of occupational accidents and illnesses.However, that section has no language authorizing abrogation of workproduct principles. Section 8(c)(3) does not even address the type ofrecords involved here. It requires the Secretary to provide for employeeaccess only to \”records of employee exposures to potentially toxicmaterials or harmful physical agents which are required to be monitoredor measured under section 6 [29 U.S.C. ? 655]. (Emphasis added.) Section1910.1000, under which employee exposure to iodine is regulated, doesnot require monitoring or measuring per se OSHA’s industrial hygienisttestified to the same effect.[[11]] The only understanding with OSHA that BaIly’s has acknowledgedconcerns a different matter which arose later. The understandingconcerned how Bally’s would respond to OSHA’s subpoena. It was agreedthat 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 ordesignated representative requests access to a record, the employershall assure that access is provided in a reasonable time, place, andmanner, but in no event later than fifteen (15) days after the requestfor access is made.[[2]] 1910.20 Access to employee exposure and medical records.(e) Access to records. (3) OSHA access. (i) Each employer shall, uponrequest, assure the immediate access of representatives of the AssistantSecretary of Labor for Occupational Safety and Health to employeeexposure and medical records and to analyses using exposure or medicalrecords.[[3]] 1910.20 Access to employee exposure and medical records.(a) Purpose. . . . Except as expressly provided, nothing in this sectionis intended to affect existing legal and ethical obligations concerningthe maintenance and confidentiality of employee medical information, theduty to disclose information to a patient\/employee or any other aspectof the medical care relationship, or affect existing legal obligationsconcerning the protection of trade secret information.”