“Docket No. 87-1849_88-0337 SECRETARY OF LABOR, Complainant. v. BALLY’S PARK PLACE HOTEL & CASINO RespondentOSHRC DOCKET NOS. 87-1849 & 88-0337DECISION Before: FOULKE, Chairman: and WISEMAN, Commissioner.[[1]]BY THE COMMISSION:These cases are before the Commission pursuant to a petition byBally’s Park Place Hotel & Casino (\”Bally’s) for review of a decision by aCommission Administrative Law Judge. The judge held that Bally’s violated two provisionsof the records access rule, 29 C.F.R. ? 1910.20, promulgated by the Secretary’sOccupational Safety and Health Administration (\”OSHA\”). His basic grounds werethat Bally’s refused to turn over to OSHA and to an employee representative a copy ofcertain 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 workproduct doctrine–or rule–because they were prepared for its attorney in anticipation oflitigation. We find that Bally’s objections are well founded, and therefore we vacate thecitations.BACKGROUNDBased on a complaint by a Bally’s employee, OSHA wrote Bally’son March 10, 1987,to request that the company investigate iodine emissions from anautomatic, cold water glass washing machine located in a bar at its casino. OSHA regulatesemployee 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 iodineemissions, and that a confidential report of the results be sent to him. Bally’s hired anoutside consultant to do the testing. Venuti testified without contradiction that the testresults were prepared for him in anticipation of litigation.[[2]]Relying upon the attorney work product rule, Bally’s deniedrepeated requests by the employees’ union representatives, and by OSHA, to be providedwith a copy of the iodine sampling results. The Secretary issued an administrativesubpoena to Bally’s for the documents. Bally’s refused to comply, again on the ground ofthe work product rule.The Secretary pursued the subpoena no further. Rather, sheissued a citation to Bally’s for a willful violation of section 1910.20(e)(1)(i)[[3]] forfailure 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 fora willful violation of section 1910.20(e)(3)(i) [[4]]for failure to provide OSHA withaccess to those records. That citation is the subject of Docket No. 88-0337. The judgeaffirmed the citations as serious and assessed penalties of $600 for each.DISCUSSION a. Whether the work product rule applies to the records soughtThe attorney work product rule has been codified in Rule26(b)(3) of the Federal Rules of Civil Procedure, which provides:[A] party may obtain discovery of documents and tangible thingsotherwise discoverable … and prepared in anticipation of litigation or for trial by orfor another party or by or for that other party’s representative (including the otherparty’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showingthat the party seeking discovery has substantial need of the materials in the preparationof the party’s case and that the party is unable without undue hardship to obtain thesubstantial equivalent of the materials by other means. . . .Fed. R. Civ. P. 26 (b)(3). That rule is applicable inCommission proceedings, because the Commission has not adopted a specific provisiondiffering from it. 29 U.S.C. ? 661(g) (\”Unless the Commission has adopted adifferent rule, its proceedings shall be in accordance with the Federal Rules of CivilProcedure\”); 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 theFederal 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 therule. 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, for discoverypurposes, because: (1) the records are documents, (2) they were \”prepared inanticipation of litigation,\” and (3) they were prepared for Bally’s attorney byBally’s consultant or agent. See Continental Oil Co., 9 BNA OSHC at 1741 & n,9, 1981CCH 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 adjusterwhen the filing of a lawsuit against Bally’s over slip and fall could reasonably beanticipated, was covered by Rule 26(b)(3)).Nevertheless, the Secretary argues that Rule 26(b)(3) does notgovern this case because it involves a subpoena issued before the litigation began, ratherthan 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 theirlegislative history suggests an intent on the part of Congress to preclude application ofthe work-product doctrine. Rule 26(b)(3) codifies the work-product doctrine, and theFederal Rules of Civil Procedure are made applicable to summons enforcement proceedings byRule 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 Rulesof Civil Procedure to proceedings to enforce OSHA subpoenas. It provides:… These rules apply to proceedings to compel the giving oftestimony or production of documents in accordance with a subpoena issued by an officer oragency of the United States under any statute of the United States except as otherwiseprovided by statute or by rules of the district court or by order of the court in theproceedings.(Emphasis added). See also, United States v. Rockwell Intl.,897 F.2d 1255, 1265-66 (3d.Cir. 1990) (attorney work product rule may be interposedagainst IRS summons). OSHA subpoenas are \”issued by an officer or agency of theUnited 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 theapplication of the Federal Rules to such subpoenas.We hold that the Rule 26(b)(3) criteria determine whetherdisclosure of Bally’s report may be compelled by citation, subpoena, or discovery. Rule26(b)(3) codifies an historical \”public policy underlying the orderly prosecution anddefense of claims.\” Hickman v. Taylor, 329 U.S. 495, 510 (1947) (in performing dutyto gather facts for court and client, \”it is essential that a lawyer work…free fromunnecessary intrusion by opposing parties and their counsel\”) The mere form of theproceeding should not change the protections for an attorney’s work product. Here, theSecretary could have attempted judicial enforcement of the subpoena she issued. Asmentioned above, the work product rule would have been fully applicable in such aproceeding.[[6]]The judge held that the records contained test results andother factual information and were unprotected by the work product rule. He stated that\”an in camera inspection revealed that the test was purely technicalinformation.\” However, as applicable case precedent makes clear, factual portions ofa document covered by the qualified privilege of Rule 26(b)(3) are protected by itsexpress 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 recordscontained in respondent’s expert investigative report prepared for litigation wereprotected by work product rule).[[7]]The Secretary argues that even if the consultant’s report is protected by the work productdoctrine, the cited standards should be construed to require disclosure of the factualInformation in It. She cites the repeated statements in the preamble to section 1910.20that 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 beconstrued 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 andtangible things.\” Thus, disclosure of the underlying facts mentioned in documents maybe pursued by other means. In these cases, however, the Secretary has not attempted byother means to obtain the facts she seeks. Thus, we only decide whether the Secretary isentitled to the records in question. We note, however, that discovery of the underlyingfacts from Bally’s expert consultant might be subject to restrictions in thesecircumstances, under Fed. R. Civ. P. 26(b)(4)(B).[[9]]b. Whether the Secretary has abrogated work product protectionfor employee exposure records under ? 1910.20The judge accepted the position of the Secretary’s counsel thatin promulgating the records access rule, the Secretary eliminated any exception to thedisclosure of covered records which may have otherwise applied under the work productdoctrine. He based that finding on developments subsequent to the rule’s promulgation. Wedisagree with that conclusion. As mentioned above, the qualified protection for attorneywork product has emerged from a basic public policy that has historical roots in thecommon law tradition. It is a well-established principle of statutory constructionthat \”[t]he common law … ought not to be deemed to be repealed, unless the languageof 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. The Secretary’s counselargues that the Act provides authority to abrogate work product protection becauseCongress provided for access to exposure records by the Secretary and by employees, undersections 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 they expressly grant authorityto abrogate it. [[10]] The legislative history of the Act also does not indicate anintention to authorize the Secretary to abrogate the work product doctrine.Even assuming that something less than \”clear andexplicit\” statutory authority would he sufficient to authorize abrogation of the workproduct doctrine as to exposure records, no such authority may even be implied here. Asdiscussed above, section 12(e) of the Act affirmatively incorporates the work productdoctrine into Commission proceedings, through the Federal Rules of Civil Procedure. Undersection 12(e), only the Commission may alter the application of the work product doctrinein its proceedings, and it has not done so. It would not be reasonable to conclude thatsection 8(c) of the Act implicitly gives the Secretary authority to abrogate work productprotection, in view of the fact that Congress contemplated that the work product doctrinewould apply in proceedings to review contested citations.Moreover, an interpretation of a statute or regulation that iscontrary to a clear public policy, such as the attorney work product doctrine, is notfavored. See, e.g., Creque v. Luis, 803 F.2d 92, 96 (3d Cir. 1986) (clear public policyconsiderations \”exert a significant influence in the process of statutoryinterpretation 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 bythe 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 entitledto judicial deference where reasonable).Because the Act does not authorize abrogation of the workproduct doctrine, the Secretary may not abrogate the doctrine by regulation. \”It isaxiomatic that an administrative agency’s power to promulgate legislative regulations islimited 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 noabrogation of the doctrine without sufficient statutory authority.Even if the Act had authorized the Secretary to abrogate workproduct protection for exposure records, there is no reasonable basis to conclude that shehas done so. The original records access rule contained no provision concerning documentsprepared in anticipation of litigation. 45 Fed. Reg. 35,212. Nor did its Preamble discussthe subject. The Secretary’s counsel argues that an intent to abrogate work productprotection for exposure records is found in an interpretation of the rule that that theSecretary 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 anemployer must provide access to records which are created solely in anticipation oflitigation and which are otherwise privileged from discovery under the prevailing rules ofprocedure or evidence. An example could be a medical opinion prepared for the employer forpurposes of aiding the employer’s case by a company physician after a workmen’scompensation claim has been filed. It has been OSHA’s interpretation that the standarddoes not contemplate coverage of such a record if the record would not otherwise beavailable to the employee or his attorney in the litigation. On the other hand, the merefact that a medical record (see definition at 29 CFR 1910.20(c)(6)) not originally createdin anticipation of specific litigation will ultimately be used as evidence in a privatelegal proceeding does not put it outside the scope of the standard.Id. (emphasis added). Although the interpretation uses medicalrecords as an example of documents that might not be covered by the rule, the passagecovers records generally. Read as a whole, the passage indicates to us that the Secretaryactually intended not to abrogate the work product doctrine with respect to exposurerecords. The Commission recently interpreted the same passage, in upholding theSecretary’s position that the records access rule does not affect the records disclosureprovisions of a worker’s compensation law:OSHA made clear that the rule does not require disclosure ofrecords created by the employer in anticipation of litigation and which would beunavailable 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 1981interpretation indicates an intent to apply the rule consistently with the work productdoctrine.The Secretary further argues that the 1988 revisions to therecords access rule shows an intent by the Secretary to abrogate protection for exposurerecords. 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 medicalrecord\” to exclude \”records created solely in preparation for litigation whichare 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 thestandard regarding employee exposure records.However, the preamble to the 1988 revisions reaffirmed andreprinted the 1981 interpretation in discussing the term employee medical records. Id. at38,150-51. As discussed above, we conclude that the 1981 interpretation actually showsthat the Secretary did not intend to abrogate work product protection for exposurerecords. We also conclude that the Secretary’s silence on abrogation of the work productrule relative to exposure records in the 1988 revisions does not require the conclusionthat abrogation as to that category of records was the result which she intended. Ifanything, that silence may be indicative of the fact that more often than with medicalrecords, 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 theattorney work product rule. Consequently, application of the work product rule in thecontext of exposure records would arise less often than with medical records. That couldexplain why in the 1988 revisions the Secretary made the clarification as to medicalrecords, 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 theagency has considered the work product rule as having been abrogated as to exposurerecords.For these reasons, we find no reasonable basis to conclude that the Secretaryintended to abrogate work product protection for exposure records under the records accessrule.\u00a0 Under these circumstances deference is not due to the Secretary’sinterpretation of the rule.\u00a0 Compare CF&I Steel Corp. at 1179 (reviewing courtmay consult the Secretary’s interpretive rules \”to determine whether the Secretaryhas consistently applied the interpretation embodied in the citation, a factor bearing onthe 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 noclaim that it was inconsistency with Constitutional or statutory mandate, with plainlanguage 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, oradministration practice [or] to an agency counsel’s interpretation of a statute where theagency itself has articulated no position on the question\”)\u00a0 and Inv. Co. Inst.v. Camp, 401 U.S. 617, 617, 629-39 (1971) ( Court rejected interpretation of agencyregulation urged by agency’s appellate counsel, where interpretation was contrary toliteral language and intent of statute).Finally, we note that the 1988 revisions by themselves have no effect on these cases.\u00a0 The citations predate those revision by many months, and only allege violations ofthe original records access rule.c. Whether the Secretary made the special showing that would justify disclosure ofattorney work productThe qualified work product protection of Fed. R. Civ. P. 26(b)(3) may be overcome ifthe Secretary \”has substantial need of her case, and \”is unable without unduehardship to obtain the substantial equivalent of the materials by other means.\”\u00a0 The Commission has required a showing that other discovery methods would besufficient to obtain the facts sought in order to justify discovery of work product.\u00a0 Continental Oil Co., 9BNA OSHC at 1742-43, 1981 CCH OSHD at pp. 31,580-82.The judge held that even it the records\u00a0 sought were work product, they arediscoverable because the Secretary has a substantial need for them.\u00a0 He concludedthat Bally’s effectively denied OSHA and the employees a means of obtaining the resultsthemselves, because the machine was taken out of service after Bally’s test. He furtherfound that OSHA reasonably relied on Bally’s to conduct the test and submit the results toOSHA. He essentially held that there was an understanding between OSHA and Bally’s to thateffect. Bally’s denies that such an understanding existed, and argues that the Secretaryfailed to make the required showings of need and lack of alternatives. The Secretary doesnot address these issues.We conclude that, without undue hardship, OSHA would have beenable to obtain substantially equivalent test results. The judge cited no evidence thatBally’s precluded OSHA from testing the machine, and we have found none. Bally’srepresents that it did not deny OSHA the opportunity to test the machine, and notes thatOSHA never asked to conduct its own tests. The evidence indicated that Bally’s performedits own tests by putting the machine back in service temporarily for that purpose, afterit had been shut down for weeks following OSHA’s letter. The Secretary has not shown thatOSHA was unable to test the machine in a similar way.The evidence indicates that OSHA’s Camden, New Jersey, areaoffice was backlogged with scheduled inspections when the Bally’s employee first filed thecomplaint. The supervisory industrial hygienist at the area office, Phyllis Kyner,testified that she initially told the complaining employee that it might take OSHA a monthor two to conduct an inspection. The employee then requested and received quicker actionthrough OSHA’s nonformal complaint procedure. The action taken by OSHA included sendingthe March 10, 1987 letter that informed Bally’s of the iodine emissions problem. Thus, wefind that the Secretary has not shown that OSHA was unable, without undue hardship, toobtain the necessary information by means other than Bally’s records.The judge specifically found that, because of the backlog ofscheduled inspections, \”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 and healthful workingenvironment.\” In support, he cited Yelvington Welding Serv., 6 BNA OSHC 2013, 1978CCH OSHD ? 23,092 (No. 15958,1978). However, requiring an employer to turn over testresults prepared in anticipation of litigation against it was not one of the forms ofemployer assistance referred to by Congress. The forms of employer assistance discussed inYelvington 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 anunderstanding with Bally’s that the company would turn its test results over to theagency. However, the evidence he cited in support of this finding merely indicates thatOSHA requested Bally’s to conduct an internal investigation of iodine emissions, and toprovide OSHA with copies of any tests that Bally’s conducted. It does not indicate thatthe company ever had a meeting of the minds with OSHA that it would disclose the testresults to the agency[[11]] There was conflicting testimony about one discussion on the sharing of test results thatoccurred on the day the tests were conducted. Jerome Page, business representative for theemployees’ union, testified that he asked Veronica Ghetie, who conducted the test, whetherhe 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, thatGhetie asked him if it would be \”okay\” to give Page a copy of the report, andthat 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 judgecredited Tartaglio’s testimony on this issue. The Secretary does not challenge thatfinding by the judge. In any event, Bally’s consistently denied requests by Page and OSHAofficials for the test results, beginning shortly after the test was made. OSHA has notestablished that it reasonably 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 seekingmaterials (1) have a substantial need for them, and (2) be unable without undue hardshipto obtain the substantial equivalent by other means. Because the Secretary has failed toestablish the second prong of that test, we need not reach the issue of whether sheestablished a substantial need for the test results.Thus, we conclude that the recordssought are exempt from disclosure under the qualified protection of the attorney workproduct rule.CONCLUSION For the foregoing reasons, we reverse the decision of theadministrative law judge and vacate the citations issued to Bally’s in these cases.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: November 7, 1991SECRETARY OF LABOR, Complainant, v. BALLY’S PARK PLACE HOTEL & CASINO, Respondent.OSHRC Docket Nos. 87-1849 & 88-0337Region IIAPPEARANCES: HARRY W. SCOTT, JR., ESQUIRE U.S. Department of Labor Office of the SolicitorFor the Complainant DAVID R. MILLER, ESQUIREGrotta, Glassman, and Hoffman, P.A.For the Respondent DECISION AND ORDERTENNEY, JUDGEPROCEDURAL BACKGROUNDThis case arose from an employee complaint to the OccupationalSafety and Health Administration (hereinafter OSHA) of sore throats, eye irritation, andskin rashes. After an investigation and a chain of related circumstances, the Secretarycited 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 aseries of communications with OSHA, the Atlantic city Health Department, and employeerepresentatives. Thereafter, Bally’s denied the employee representative and OSHA access tothe test results based on the work product rule.On July 30, 1987, the Secretary served upon Bally’s a subpoenaduces tecum. The subpoena requested any documents containing information concerningemployee exposure to a toxic substance or harmful physical agent such as: (1)environmental workplace monitoring, (2) biological monitoring results, or (3) any otherrecord 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 withthe subpoena. On August 17, 1987, Bally’s submitted through its attorneys, a positionstatement 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 firstviolation. 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 torecords containing iodine sampling results conducted on or about May 4 & 5, 1987, atcasino service bar #2 within a reasonable time (no later than 15 days) when requested byan employee or designated representative. A proposed penalty of $6,000 was assessed. Thiscase was assigned the Docket No. 87-1849.On January 20, 1988, the Secretary issued Bally’s its secondwillful violation. The second citation, Citation No. 1, Item 1, alleges a violation of 29C.F.R. ? 1910.20(e)(3)(i) [[2]]. The Complaint alleges that access to employee exposurerecords related to the May 4 and 5, 1987, testing at casino service bar #2 were not givento the Camden, New Jersey, OSHA Area Director or his representative after said recordswere 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 onSeptember 8, 1988, in Philadelphia, Pennsylvania; post hearing briefs have been filed andconsidered.DECISION1. Bally’s has its principal place of business in AtlanticCity, New Jersey, and is engaged in operating a casino hotel. Many of the materials andsupplies used and\/or manufactured by Bally’s originated and\/or were shipped outside theState of New Jersey. (Complaint and Answer, Paragraphs 2 & 3.) Thus, Bally’s is anemployer engaged in a business affecting commerce within the meaning of section 3(5) ofthe Act, 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 rinse cycle. (Testimonyof Ms. Kyner, Tr. 143; Exhibit C-1.) Ms. Jean Quinn, a bartender at casino service bar #2for almost nine years, noted that the eight-year-old dishwasher required frequent servicedue 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 inthe bar. (Testimony of Ms. Quinn, Tr. 28.) Complaints were of the following conditions:bloodshot eyes, eye infections, burnt cheeks, nose runs, sore throats, frequentbronchitis, skin rashes, and other skin conditions. (Testimony of Ms. Quinn, Tr. 16; thatof Ms. Kyner, Tr. 126, 142.) In addition, it was complained that the iodine vapors weresufficient to stain walls, ceilings, and employees’ shirts brown or yellow.(Testimony ofMr. Siletsky, Tr. 94.)4. On March 10, 1987, Mr. Allendorf, Area Director of CamdenOSHA, by letter requested BalIy’s to investigate the alleged condition and make anynecessary corrections or modifications and submit any supporting documents such asmonitoring results. (Exhibit J-1.)5. Mr. Richard Tartaglio, Director of Labor Relations atBally’s, responded on March 16, 1987, stating the complaint had been fully investigatedand had no merit. (Exhibit C-1.) Bally’s investigation included a check of the ventingsystem and a review of the Mikroklene directions for use. Mr. Tartaglio stated thatimproper use by bar porters resulted in an inaccurate reading during a daily iodinechlorine 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 raisedby complainant (employees) in this matter.\” (Exhibit C-1.) However, Bally’s did notconduct an air sampling test at this time to determine whether the complaints were valid.6. On numerous occasions OSHA was in contact with Bally’sregarding the situation in general and air sampling in particular. (Paragraphs 4, 6-7.) onApril 3, 1987, Ms. Kyner spoke with Mr. Tartaglio and suggested one way to settle thecomplaint was to get an air sample. (Testimony of Ms. Kyner, Tr. 129.) In a follow upletter dated April 3, 1987, Mr. Allendorf noted that Bally’s investigation left thecondition in open status 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 complianceofficer, contacted Mr. Tartaglio regarding the situation. During the conversation of May6th, 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. SiletskyBally’s would need more time to get the results. (Testimony of Mr. Siletsky, Tr. 81.)8. Mr. Tartaglio contacted Bally’s construction consulting firmto arrange an air quality test. (Tr. 53; Testimony of Mr. Venuti, Tr. 165-166, 183.) Theconstruction firm, in turn, contacted J.C. Anderson Associates to perform the air qualitytest.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. AndersonAssociates 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 wereas follows. The dishwasher and the service bar were placed in a fully operational mode bythe 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 properfunctioning. (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. (Testimonyof Mr. Tartaglio, Tr. 202.) Other employees such as cocktail waitresses and the bar porterworked in and around the area as usual throughout the test. (Testimony of Ms. Quinn, Tr.17.)12. Ms. Ghetie utilized a \”black box\” in conductingthe air quality test. Apparently, the box was to be worn by the bartender during theexamination 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 actualtesting, 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 confinedarea of the bar.13. In sum, the air quality test was conducted during thecourse of a normal workday and under normal work conditions. Adequate safeguards weretaken 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 whilethe dishwasher was in service. The evidence demonstrates that the air quality testconstitutes a record containing 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. Tartaglio for a copy of thetest results and he denied the request. (Tr. 200.) On May 29, 1987, Bally’s denied OSHAthe 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, onJuly 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 statementwould follow. (Testimony of Mr. Venuti, Tr. 174.) Finally, on August 17, 1987, a positionstatement was filed wherein Bally’s refused to give OSHA the test results. (Testimony ofMs. Kyner, Tr. 138-139.)15. There are three main issues for decision in this case andone incidental issue. The main issues are: whether the air quality test is protected bythe work product doctrine; whether the air quality test report constituted an exposurerecord 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 issueis whether the second citation was issued with \”reasonable promptness.\” \”Work-Product\” Issue16. Bally’s argues that the air quality test results are work product of an attorney inanticipation of litigation and therefore not subject to disclosure. However, for thereasons stated below, I conclude that the air quality test results do not qualify as workproduct and are subject to disclosure.17. The purpose of the work product doctrine is to permit anattorney to perform his duties without unnecessary interference from opposing counsel. Thedoctrine seeks to protect an attorney’s mental impressions, obtained or prepared by anattorney 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 limitationson the scope of the doctrine. For example, only where a document is primarily concernedwith 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 arewithout 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 soconfined, there are other limitations on its scope. The work product rule is largelyconfined to pretrial discovery.\u00a0 U.S. v. Nobles, 95 S. Ct. 2160, 2174 (1075) (White, J., concurring).\u00a0 Also, if it were not so limited, production night bejustified if there is a substantial need to obtain the document in question.\u00a0 Hickmanv. Taylor, 67 S. Ct. at 394.20. Turning to the first limitation on the scope of the doctrine, (Paragraph 18), an incarmera inspection revealed that the test was purely technical information.\u00a0 Mr.Venuti also conceded that the test result as confidential materials.\u00a0 UnionCarbide Co., 619 F. Supp. at 1047.\u00a0 As the test results in this case are factualand require no legal interpretation they are devoid of protection under the work productrule. 21. Moreover, it is irrelevant whether the primary motive in directing Ms. Ghetie toconduct the test was done with an eye towards litigation.\u00a0 Access is not contingentupon motive or proposed use of the record. Cf. Johnson & Johnson Products Inc.,11 BNA OSHC 1159, 1160, (No. 81-1339, 1983.\u00a0 Thus, as motive is irrelevant theresults are accessible.22. Perhaps even more persuasive, is the fact that the Secretary of Labor hasaddressed matters of privilege in the standard. However, these concern generally theconfidentiality of employee medical records and the protection of trade secretinformation.[[3]] With regard to medical records there is an exclusion of records createdsolely In preparation for litigation which is privilege from discovery. See Section1910.20(c)(6)(ii)(C). But, there is no comparable exclusion for exposure records.23. Finally, in any event, the air quality test is accessibleunder 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 haseffectively 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. Iagree 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, therecord evidence indicates that OSHA reasonably relied on Bally’s to conduct the test andsubmit the results. (Paragraphs 4, 6-7.)24. The record evidence indicates that OSHA was inundated withcases during the period of this inspection. For that reason, employees sought to followthe informal complaint procedure in the hopes of obtaining faster results. (Testimony ofMs. Kyner, Tr. 127.) Congress intended that employers assist the Secretary in providing asafe and healthful working environment. Yelvington, 6 BNA OSHC at 2015. Recognizing thatOSHA was inundated with cases at the time of this complaint it was reasonable for OSHA torely an Bally’s to conduct the testing.\”Exposure Record\” Issue25. Bally’s argues that the exposure records are in any casenot accessible because they were not conducted in the \”course of employment.\” Insupport of this argument, Bally’s submits that the test was conducted in an experimentalmanner 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 thecourse of employment . . . and includes past exposure and potential exposure.\”(Emphasis added.)27. There is persuasive evidence to show that the test wasconducted during the course of employment and under normal conditions. For example, thedishwasher was put back into working condition for the test; the test was conducted duringthe course of normal working hours and conditions; and, employees worked as usual duringthe testing. (Paragraphs 11-13.) As such, the sampling tested the breathing space of theemployees and constitutes exposure under the standard. Hence, the test results areaccessible to OSHA and employee representatives as an accurate employee exposure record ofpast exposure that gave rise to the employee complaints.\”Statute of Limitations\” Issue28. Bally’s argues that the second citation must be vacatedbecause it was not issued within the six-month period as required by Section 9(c) of theAct, 29 U.S.C. ? 658(c) This argument fails for the following reasons.29. The failure to allow accessibility to exposure records toemployee representatives and OSHA is viewed as a continuing violation. Therefore, althoughBally’s had early asserted the work product rule, the violation continued up to the datethe position statement was submitted after the issuance of the subpoena which was issuedon July 30, 1987.30. Bally’s would have the statute of limitations commence onthe day the informal complaint was filed. However, the original complaint merely allegesthe physical problems faced by the employees in the bar. The facts comprising the secondcitation arose at least until after the test results were denied in response to thesubpoena and, Bally’s attorneys submitted a position statement stating they would notcomply with the subpoena. \”Reasonable Promptness\” Issue31. 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 samereasons 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 withinthe six-month period as required by Section 9 (c) of the Act as noted above.PENALTIES33. The Secretary alleges that Bally’s willfully committed theviolations. However, Bally’s has consistently and in good faith asserted the work productprivilege in a situation that is novel. The assessment of the most severe class of penaltyis therefore inappropriate. The violation is found to be not willful. The substantiveconditions, 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 basedon four factors; size, gravity, good faith, and history. The OSHA compliance officercorrectly 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 inthis case, including Bally’s good faith, a penalty assessment of $600 is appropriate foreach of the citations.ORDERIt is hereby ordered that:1. The violation of 29 C.F.R. ? 1910.20(e)(1)(i) regardingemployee representative access to employee exposure records, Citation 1, Item I isaffirmed, and a penalty of $600 is assessed.2. The violation of 29 C.F.R. ? 1910.20(e)(3)(i) regardingOSHA 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 herewithreturned to Bally’s. Bally’s is directed to make available a copy of the test results toOSHA and one to the employee representative.Paul A.Tenney Judge, OSHRCDATED: 28 FEB 1989 Washington, D.C.FOOTNOTES: [[1]] Commissioner Montoya did not participate in the deliberation or issuance of thisdecision.[[2]] Venuti testified that he asked for a technical report onthe glass washing machine emissions after reading OSHA’s March 10 letter to Bally’s, whichrecounted numerous complaints about the machine. Venuti testified that he concluded fromthe letter that Bally’s probably would be subject to claims about the machine fromemployees and OSHA. He testified that he told Richard Tartaglio, a lawyer who was Bally’sLabor 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 throughBally’s construction consultants, Coastal Management. Veronica Ghetie of Anderson did theiodine testing.[[3]] At the time of the investigation and citation, thatprovision stated:? 1910.20 Access to employee exposure and medical records.(e) Access to records — (1) General. (i) Whenever an employee or designatedrepresentative requests access to a record, the employer shall assure that access isprovided 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, thatprovision stated, in pertinent part:(3) OSHA access, (i) Each employer shall, upon request, assure the immediate access ofrepresentatives of the Assistant Secretary of Labor for Occupational Safety and Health toemployee exposure and medical records and to analyses using exposure or medical records….[[5]] The current Commission Rules of Procedure govern thesecases, 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 thatthose Rules affect the applicability of the work product doctrine in Commissionproceedings, 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 doctrineshould be largely confined \”to its role as a limitation on pretrialdiscovery[,]\” United States v. Nobles, 422 U. S. 225,247 (1975) He urged thatgenerally, the work product rule does not limit a court’s authority to order production ofevidence at trial. Id. at 250- 54. Justice Rehnquist (now Chief Justice) joined in thatconcurrence. 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 therecords at trial or hearing. Also, the majority in Nobles stated:[T]he concerns reflected in the work-product doctrine do not disappear once trial hasbegun. Disclosure of an attorney’s efforts at trial, as surely as disclosure duringpretrial 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 theproposition 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., 619F.Supp. 1036 (D. Del. 1985). However, the reasons for compelling disclosure in those casesdo not apply here.Union Carbide involved a request by the defendant in a patent infringement suit for accessto information that is required to be disclosed to the government as part of a patentapplication…In patent cases, work-product immunity is not \”extended to preparations for exparte proceedings such as patent proceedings,\” Choat v. Rome Industries, Inc., 462F.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). Infact, patent applicants have a legal duty to disclose to the U. S. Patent and TrademarkOffice all facts relating to the equities of granting the application. E.g., PrecisionInstrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 818 (1945). See35 U.S.C. ? 112 (patent applications must include \”full, clear, concise, andexact\” written description of invention, and of manner and process of making it). Seegenerally, 60 Am Jur 2d Patents, ?? 999, 1002. Thus, in Union Carbide, the court ruledthat documents sought were not confidential because they were prepared for the patentapplication, 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 toestablish that a justifiable controversy existed. The plaintiff refused to disclose thebasic technical information on which it based its claim, on the ground that theinformation was work product of its attorney. The court held that the work productdoctrine does not totally shield a litigant from the requirement that it specify thepatent infringement charges. 667 F.2d at 579, 582. Of course, Rule 26(b)(3) only protectsspecific \”documents and tangible things.\” Disclosure of the underlying facts maybe pursued by other means. The court in Loctite also stated: Only where the document is primarily concerned with legal assistance doesit come within these privileges [attorney-client and attorney work product]; technicalinformation 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 section1910.20(c)(10) as follows:\”Record\” means any item, collection, or grouping of information regardless ofthe 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, whichwas 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 orspecially employed by another party in anticipation of litigation or preparation for trialand 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 theparty 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, theunderlying facts are not the subject of the citations. Only Bally’s failure to turn overrecords is at issue.) Fed. R. Civ. P. 35(b) has no relevance here, because it applies onlyto physical and mental examination of persons. Thus, the underlying facts known to theexpert would be subject to the same qualified work product protection as the records.[[10]] Section 8(c)(1) gives the Secretary authority to requireemployers to \”make, keep and preserve, and make available to the Secretary\” suchrecords as she:… in cooperation with the Secretary of Health and Human Services, may prescribe byregulation as necessary or appropriate for the enforcement of this Act or for developinginformation 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 theSecretary to provide for employee access only to \”records of employee exposures topotentially toxic materials or harmful physical agents which are required to be monitoredor measured under section 6 [29 U.S.C. ? 655]. (Emphasis added.) Section 1910.1000, underwhich employee exposure to iodine is regulated, does not require monitoring or measuringper se OSHA’s industrial hygienist testified to the same effect.[[11]] The only understanding with OSHA that BaIly’s hasacknowledged concerns a different matter which arose later. The understanding concernedhow Bally’s would respond to OSHA’s subpoena. It was agreed that a position statement byBally’s would be an acceptable form.\u00a0[[1]] 1910.20 Access to employee exposure and medical records. (e) Access to records. (1) General. (i) Whenever an employee or designated representativerequests access to a record, the employer shall assure that access is provided in areasonable time, place, and manner, but in no event later than fifteen (15) days after therequest 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 theimmediate access of representatives of the Assistant Secretary of Labor for OccupationalSafety and Health to employee exposure and medical records and to analyses using exposureor medical records.[[3]] 1910.20 Access to employee exposure and medical records.(a) Purpose. . . . Except as expressly provided, nothing in this section is intended toaffect existing legal and ethical obligations concerning the maintenance andconfidentiality of employee medical information, the duty to disclose information to apatient\/employee or any other aspect of the medical care relationship, or affect existinglegal obligations concerning the protection of trade secret information.”