“SECRETARY OF LABOR,Complainant,v.EMERSON ELECTRIC COMPANY,ELECTRONICS AND SPACE DIVISION,Respondent.OSHRC Docket No. 84-0985_DECISION _Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).At issue is a single citation alleging a violation of 29 C.F.R. ?1904.7. That regulation states that employers \”shall provide\” certaininjury and illness records, \”upon request\” to \”any representative\” ofthe Secretary \”for inspection and copying.\” See Section 1904.7(a). Therecords that must be provided for inspection and copying include thosethat the employer is required to maintain on form OSHA No. 200, the logand summary of occupational injuries and illnesses, and on form OSHA No.101, the supplementary record of occupational injuries and illnesses.See sections 1904.4.The facts are not in dispute. An OSHA compliance officer arrived atEmerson Electric’s workplace to conduct an inspection in response to anemployee complaint. The compliance officer requested permission toinspect the workplace and to examine the company’s OSHA forms, No. 101and No. 200, for the years 1982 through 1984. Emerson Electric’spersonnel manager consented to a warrantless inspection of the workplacelimited to the allegations stated in the employee complaint, but sherefused to allow the access to injury records required by section1904.[[7]] unless OSHA forms, obtained a warrant or issued a subpoena.OSHA neither obtained an inspection warrant nor issued an administrativesubpoena. Instead, it issued the citation now on review.At the hearing before Commission Administrative Law Judge James D.Burroughs, the parties stipulated to the facts. The only issue beforethe judge was whether the Fourth Amendment requires OSHA to obtain awarrant or issue a subpoena when it wishes to examine required injuryrecords. Judge Burroughs vacated the citation, holding:Emerson had a constitutional right to insist that the compliance officerissue an administrative subpoena or obtain a warrant to search with aviolation for exercising his rights under the fourth amendment.We reach the same conclusion, although for somewhat differentreasons.[[1]] In Kings Island, Division of Taft Broadcasting Co., OSHRCDocket No. 82-1016 (March 18, 1987),we held that \”section 1904.7(a)violates the Fourth Amendment to the extent that it, purports toauthorize an inspection of required records without a warrant or its’equivalent’ . . . .\” Slip op. at p. 24. Here, as in Kings Island, OSHAneither obtained an inspection warrant nor issued an administrativesubpoena compelling production of the injury records. Accordingly, forthe reasons stated in Kings Island, we affirm[[2]] the judge’s ordervacating citation 1 unless the Secretary requests an opportunity tointroduce evidence contrary to officially-noticed documents within 15days of this decision.[[3]]FOR THE COMMISSIONRAY H. DARLING, JR.Executive SecretaryDATE: MAR 15 1987————————————————————————SECRETARY OF LABOR,Complainant,EMERSON ELECTRIC COMPANY,ELECTRONICS AND SPACE DIVISION,Respondent.OSHRC Docket No. 84-0985APPEARANCES:Larry A. Auerbach, Esquire, and Michael K. Hagan, Esquire, Office of theSolicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf ofcomplainant.William T. Weidle, Jr., Esquire, Office of Frank L. Pellegrini, St.Louis, Missouri, on behalf of respondent._DECISION AND ORDER_Burroughs, Judge: Emerson Electric Company, Electronics and SpaceDivision (\”Emerson\”), contests an alleged violation of 29 C.F.R. ?1904.7 for failure to make available OSHA forms 101 and 200 for theyears 1982, 1983 and 1981 for examination during a complaint inspectionconducted on July 18, 1984, to its Longwood, Florida, plant. The partiesfully stipulated the facts for determination by the Commission.On July 11, 1984, the Tampa, Florida, area office of the OccupationalSafety and Health Administration (\”OSHA\”) received a complaint from anemployee of Emerson concerning employee exposure to the chemicaltrichloroethane at the Longwood, Florida, plant. The complaint allegedthat employees in the manufacturing building were exposed toconcentrations of trichloroethane that were causing illnesses,headaches, and stomach problems (Ex. 1).Based on his evaluation of the complaint, the OSHA area directordirected Compliance Officer John P. Santa Cruz to conduct an inspectionof the plant.Santa Cruz arrived at the plant on July 18, 1984, and presented a copyof the complaint to Bob Ranor, the plant manager, and Jo Rippetoe, thepersonnel manager. Santa Cruz requested permission to conduct aninspection of the plant and asked to examine OSHA forms 101 and 100 forthe years 1982, 1983 and 1984.After consultation with Emerson’s corporate headquarters, Rippetoeagreed to permit a warrantless inspection limited to the allegations setforth in the employee complaint but refused to provide OSHA forms 101and 1900 for examination. She advised Santa Cruz that the forms wouldnot he provided except pursuant to a warrant or subpoena.No recorded statistics, figures or written records were provided toSanta Cruz which would have enabled him to calculate the lost workdayinjury (\”LWDI\”) rate pursuant to the methodology required by OSHA’sField Operations Manual. Santa Cruz was informed by Rippetoe that shewas advised by Sheila Feldman of Emerson’s corporate industrialrelations staff in St. Louis, Missouri, that the establishment’s LWDIrate was 2.9 for 1983 and 5.2 for 1982.Under the general inspection procedures followed by the Secretary, therecords sought by Santa Cruz are used in calculating the establishment’sLWDI rate.The LWDI rate calculated is compared to the most recently published BLSnational rate for manufacturing. If the LDWI rate is below the BLS rate,a comprehensive safety inspection is not to be conducted. If thecomputed LDWI rate is at or exceeds the BLS rate for manufacturing, acomprehensive inspection is to be conducted by the compliance officer.Although Emerson refused to provide the requested OSHA forms 101 and200, no representative of the Secretary sought or obtained a warrant oradministrative subpoena in order to determine whether Emerson maintainedOSHA forms 101 and 200 or to examine those forms for 1982, 1983 and 1984if they were maintained. The Secretary proceeded by issuing an \”other\”citation to Emerson on September 11, 1984, alleging a violation of 29C.F.R. ? 1904.7 for not making the forms available for inspection.The cited regulation, 29 C.F.R. ? 1904.7,[[1\/]] requires an employer toprovide to any representative of the Secretary of Labor, upon request,the records provided for in ?? 1904.2, 1904.4 and 1904.5, for inspectionand copying. Section 1904.2 [[2\/]] requires an employer to maintain alog and summary of all recordable injuries and illnesses on a form knownas OSHA No. 200 or an equivalent. Section 1904.4 [[3\/]] requires asupplemental record of each recordable occupational illness or injury tobe maintained on an OSHA form 101 or equivalent.The regulations in issue have been validly promulgated pursuant tosections 8(c)(1) and (2),[[4\/]] 29 U.S.C. ?? 657(c)(1) and (2), of theAct. Section 8(c)(1) of the Act requires an employer to \”make, keep andpreserve, and make available to the Secretary\” the records which theSecretary prescribes \”by regulation as necessary or appropriate forenforcement of the Act or for developing information regarding the causeand prevention of occupational accidents and illnesses.\” Section 8(c)(2)specifically states that the Secretary shall prescribe regulationsrequiring employers \”to maintain accurate records of, and to makeperiodic reports on, work-related deaths, injuries and illnesses.\” Theuse of the words shall prescribe implies that there was a mandatoryrequirement imposed upon the Secretary to promulgate appropriateregulations to effectuate the stated purpose.Sections 1904.2 and 1904.4 of 29 C.F.R. comply with the requirements ofsections 8(c)(1) and 8(c)(2) of the Act since they relate to theenforcement of the Art or the developing of information regarding thecauses and prevention of accidents and illnesses. The Secretary has beengranted specific authority to promulgate regulations for this purpose.The OSHA forms 101 and 200 are firmly established as required recordsunder the Act and the regulations. Emerson does not argue to the contrary.In order to establish a violation of 29 C.F.R. ? 1904.7, the Secretaryneed only show that a request was made for the forms by one of hisrepresentatives and that Emerson failed to provide the records forinspection an d copying. The parties stipulated that Santa Cruzrequested the forms on July 18, 1984, and that representatives ofEmerson denied the request. A violation of the requirements of theregulation has been established.Once it refused to make the records available. Emerson submits that theSecretary had to either apply to a U.S. Magistrate for a warrant orissue an administrative subpoena to compel production of the documents.Pertinent portions of the Secretary’s Field Operations Manual werestipulated a, exhibit four. Where an employer refuses to allow access tothe injury or illness records needed to perform a records review forpurposes of determining whether the employer is to receive acomprehensive inspection, the manual states the compliance officer is toproceed as for any other case of refused entry.[[5\/]] In such case, thearea director is to notify the Regional Administrator who in turnconsults with the Regional Solicitor when appropriate to determine if anadministrative subpoena or a warrant should be sought.[[6\/]]In lieu of seeking a warrant or issuing an administrative subpoena, theSecretary cited Emerson for a violation of 29 C.F.R. ? 1904.7. Emersonchose not to comply, and the Secretary has been prevented from examiningand copying the forms. Emerson argues that the issuance of the citationwas a \”‘coercive penalty’ for the exercise of its Constitutional rightand is unconstitutional under the Fourth Amendment.\” This is not aclassic fourth amendment case since there has been no actual search andseizure. Emerson still retains control of the forms. None of theSecretary’s representatives have sought to enter Emerson’s premisesagainst its will to search the premises or to seize or examine the formswithout its consent. What Emerson seeks is not to prevent an unlawfulsearch and seizure, but an immunity to the provisions of 29 C.F.R. ?1904.7 unless the Secretary seeks a search warrant or issues anadministrative subpoena prior to proceeding against it.The basic purpose of the fourth amendment is \”to safeguard the privacyand security of individuals against arbitrary invasions by governmentofficials.\”Camara v. Municipal Court, 387 U.S. 523, 528, (1967). The capacity toclaim the protection of the fourth amendment depends not upon a propertyright but upon whether the person who claims the protection of theamendment has a legitimate expectation of privacy. Rakas v. Illinois,439 U.S. 128 (1978). The Secretary submits that the fourth amendment isinapplicable since Emerson had no reasonable expectation of privacy withrespect to the forms.In enacting the Occupational Safety and Health Act of 1970, Congressconferred upon the Secretary broad powers of regulation which areaccompanied by investigatory duties and powers designed to enable him tocarry out the provisions of the Act. The Secretary of labor isauthorized by section 8(1) of the Act to enter and inspect workplaces inorder to carry out the purposes of the Act. Where the Secretary. as inthis case, receives a written employee complaint that leads him toreasonably believe a violation exists at the workplace, section 8(f)(1)specifically requires him to conduct a \”special inspection\” as soon aspossible to determine if the violation or danger exists. The Act nowherestates that the Secretary must secure a warrant before conducting asearch; however, employers are not required to submit to his demand toinspect. The right to inspect is subject in all cases to judicialsupervision. This is made clear by the Supreme Court’s decision inMarshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816 (19118), wherethe Court held that the fourth amendment requires that a warrant beobtained by Secretary prior to conducting a nonconsensual inspectionunder section (a) of the Act.In Barlow’s, Inc., an OSHA inspector entered the customer service area,presented his credentials to the president and general manager andinformed them that he wished to conduct a search of the working areas ofthe business. The compliance officer was refused admission since he didnot have a search warrant. The Secretary relied on section 8(a) of theAct, 29 U.S.C. ? 657(a), which authorizes him to conduct inspections ofworkplaces. The Court in Barlow’s, Inc., was concerned over the factthat \”[t]he authority to make warrantless searches devolves almostunbridled discretion upon executive and administrative officers,particularly those in the field, as to when to search and whom tosearch.\” 436 U. S. at 323. The Court was of the opinion that a warrantwould provide assurances from a neutral officer that the inspection wasreasonable, was authorized by statute, and was pursuant to anadministrative plan containing specific neutral criteria. The Courtfurther noted that a warrant would also set the scope and objects of thesearch which would set limits on the inspection.There was no specific reference to or discussion in the body of theopinion as to what procedure must be followed where records are soughtthat by law must be maintained by the employer. The court makesreference in footnote 22 to records required under section 8(c) of theAct. It points out that section 8(a) does not expressly include anyrecords among those items or things that may be examined, and thatsection 8(c) states that the employer is to make available his pertinentrecords and to make periodic reports. The Court then states:The Secretary’s regulation, 29 CFR ? 1903.3 (1977), however, expresslyincludes among the inspector’s powers the authority \”to review recordsrequired by the Act and regulations published in this chapter, and otherrecords which, are directly related to the purpose of the inspection.\”Further. ? 1903.7 requires inspectors to indicate generally \”the recordsspecified in ? 1903.3 which they wish to review\” but \”such designationsof records shall not preclude access to additional records specified in? 1903.3.\” It is the Secretary’s position, which we reject, that aninspection of documents of this scope may be effected without a warrant.(underlining added.)When footnote 22 is read in conjunction with footnote 23, it becomesclear that the rejection is directed to the scope of 29 C.F.R. ??1903.31 and 1903.7.Both of these regulations are quite broad in scope. Footnote 23 statesthat the Secretary limited his submission in the case to theconstitutionality of a warrantless search authorized by section 3(a) andexpressly declined to rely \”upon the order obtained in this case.\” Sincethe Secretary did not rely upon the district court order, there was nonecessity for the court to reject the document search, which was broadin scope, delineated in the court order.Unlike ?? 1903.3 and 1903.7, ? 1904.7 makes reference to specificrecords provided for in ?? 1904.2, 1904.4 and 1904.5. Sections 1904.2and 1904.4 require employers to keep and maintain forms 101 and 200 ortheir equivalent. The forms are not to be kept for an employer’s privateuse but for the benefit of the Secretary and for public purposes.Section 1904.7(b)(1) also provides that the form 200 shall, uponrequest, be made available to any employee, former employee and to theirrepresentatives for examination and copying. There was no intention thatthe forms were to be kept for the private use of an employer. Once therecords were compiled pursuant to the Act and regulations, Emerson wasin a real sense a custodian for the records. It held the records subjectto examination by the Secretary and has no real grounds on which torefuse production for inspection and copying. It has no reasonableexpectation of privacy in keeping and maintaining OSHA forms 101 and200. In compiling and maintaining the required records, it has theincident obligation to permit inspection conditioned upon constitutionalsafeguards being adhered to in the process of the examination. In thisregard, it has a right to be assured that the safeguards are in placebefore surrender of the records.A superficial analysis mistakenly leads one to the conclusion that thereis no reason to require a warrant or administrative subpoena be issuedto examine forms 101 and 200. The inquiry is one that OSHA is authorizedby law to make and the forms are relevant to carrying out the purposesof the Act. Obtaining a search warrant would appear to be a needless actsince Emerson has no reasonable expectation of privacy to the forms. Thescope of the document inspection is specific since Santa Cruz requestedthe forms by number. There was no fishing expedition. Emerson was neverin doubt as to what was required.The point at issue evolves into a question of determining when therecords must be made available for examination. At some point in time,the Secretary is entitled to examine and copy the forms. The Court inBarlow’s Inc., footnote 23, makes it clear that the Secretary canexercise the inspection authority \”conferred by ? 8 pursuant toregulations and judicial process that satisfy the Fourth Amendment.\” Atthis juncture, the Secretary has not followed the judicial process thatsatisfies Emerson’s rights under the fourth amendment. The end resultmay be the same, but the fourth amendment requires that certainprocedures be followed in a nonconsensual examination or search. TheSecretary’s position in this case removes the safeguards granted by thefourth amendment.In Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S. Ct. 1727,1731 (1967), the Court held that \”[e]xcept in certain carefully definedclasses of cases, a search of private property without proper consent is’unreasonable’ unless it has been authorized by a valid search warrant.\”One of the troubling factors to the Court was that the practical effectof not requiring a warrant left the occupant to the discretion of theofficial in the field. It refused to conclude that the protectionsprovided by the warrant procedure were not needed and held that broadstatutory safeguards are no substitute for individualized review,particularly when the safeguards may only be invoked at the risk of acriminal penalty. While no criminal penalty is involved in this case,action has been taken against Emerson by finding a violation of 29C.F.R. ? 1904.7.Emerson submits that the issuance of the citation is a coercive actionprecipitated by its refusal to allow a search of its premises. The pointis made that it has suffered as a result of exercising its rightsgranted by the Court in Barlow’s, Inc. While no penalty has beenproposed for the failure to comply with section 1904.7, an immediateabatement date has been specified. Presumably, the fact of abatementwill have to be verified by a second inspection, again without awarrant. In the event abatement has not been accomplished, the Secretarycould conceivably propose penalties against Emerson for its failure toabate. There is room for abuse in this process. An employer might becoerced into waiving his fourth amendment rights because of thepossibility of penalties assessed by the Secretary.There is room for further abuse in giving broad discretion to complianceofficers in the field. OSHA form 101 requires an employer to furnishinformation as to the place of the accident or exposure, what theemployee was doing when injured, and how the accident occurred. Indescribing how the accident occurred, the forms asks for the followinginformation (Ex. 2):Describe fully the events which resulted in the injury or occupationalillness. Tell what happened and how it happened. Name any objects orsubstances involved and how they were involved. Give full details on allfactors which led or contributed to the accident.If an employer fills out the form in the detail required, it is possiblethat representatives of the Secretary in a nonconsensual inspectionmight be able to use the information to cite the employer for a specificviolation of section 5(a)(1) or 5(a)(2) of the Act. In such a case, theSecretary would be able to accomplish through the backdoor what he isotherwise prevented from doing by the decision in Barlow’s Inc.The Secretary’s argument in essence means that a compliance officer canwalk into the public areas of an employer’s business, present hiscredentials and demand to see forms 101 and 200. There is nothing inBarlow’s, Inc., that indicates an employer has limited fourth amendmentrights as to the enforcement of any part of the Act. The Secretary’sright under section 8 of the Art is subject to judicial process thatsatisfies the requirements of the fourth amendment.There is no indication that any provisions of the Act can be enforced ina nonconsensual inspection.In See v. City of Seattle, 387 U.S. 541, 865 S. Ct. 1737 (1967), theCourt concluded that an administrative agency has the right to conductall reasonable inspections of documents which are contemplated bystatute but that the agency must delimit the confines of a search bydesignating the needed documents in a formal subpoena. This procedureaffords considerable safeguards against abuse of the power to inspect byan enforcement officer in the field since the subpoena is issued andenforced by the agency and net the officer in the field.Where a warrant is secured or an administrative subpoena issued, thedecision to enter and examine will not be the product of the unrevieweddiscretion of the enforcement officer in the field. The employer willalso have an opportunity to obtain judicial review of the reasonablenessof the demand prior to suffering penalties for refusing to comply. Inthis instance, Emerson is being faced with a violation and possiblesubsequent action for failure to abate without having a ruling on thereasonableness of the demand. Action has been taken by the Secretary tosustain a violation prior to having a judicial officer deciding ifEmerson’s rights under the fourth amendment must yield to the right ofsearch or administrative subpoena.While no ill motive is attributed to the Secretary in this matter, it isimpossible to conclude that the protections provided by a warrant oradministrative subpoena are not needed in or will not be needed incountless cases of like circumstances that might arise in the future. Asthe court noted in Camara, broad statutory safeguards are no substitutefor individualized review. It is impossible to anticipate in what wayabuse of discretion might arise.The review of the forms is part of the inspection process and Barlow’s,Inc., prevents a nonconsensual inspection without a warrant. Even if theSecretary’s position was sustained, he would not have access to thepremises to conduct an inspection to determine if violations, exist inthe workplace. In the final analysis, the Secretary will have gainedlittle and the safety of employees in the particular workplace will notbe enhanced by this course of action. The public interest does notdemand such an exception to the fourth amendment and the Secretary hasshown no compelling need as to why he must have a nonconsensualexamination and inspection of the forms. The present enforcementprocedures open to the Secretary under the rationale of Barlow’s, Inc.,do not demand an eroding of an employer’s rights guaranteed under thefourth amendment.A significant point in Barlow’s Inc., Camara and See is that the Courtwas concerned with unbridled discretion being given to executive oradministrative officers, particularly those in the field, as to when toand whom to search. It was keenly aware that such situations can lead toabuse and disregard for rights of the inspected party. Sustaining theposition of the Secretary would give him a license to proceed in thevery manner which the Court has sought to prevent. The Court has erectedsafeguards which must be followed to insure fourth amendment protectionfor the inspected party.Where an employer refuses to allow the compliance officer access to theinjury or illness records needed to perform a records review todetermine whether the employer is to receive a comprehensive inspection,the Field Operations Manual sets out the procedure for obtaining anadministrative subpoena or warrant.[[7\/]] Each of these procedures wouldsafeguard the rights of the employer since he would be able to obtainjudicial review of the reasonableness of the demand prior to sufferingpenalties for refusing to comply. Emerson had a constitutional right toinsist that the compliance officer issue an administrative subpoena orobtain a warrant to search prior to complying with the request. He maynot be charged with a violation for exercising his rights under thefourth amendment. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct.1721 (1967); See v. City of Seattle., 387 U.S. 541, 87 S. Ct. 1737(1967). The violation of ? 1904.7 is vacated.In A.B. Chance Co., OSAHRC BNA OSHC 1985 CCH OSHD ? (No. 84-519, January30, 1985), Commission Judge Joe Sparks, faced with an identical issue,held that the employer violated 29 C.F.R. ? 1904.7 by refusing to makeOSHA forms 101 and 200 available for inspection and copying. Heconcluded that there was no expectation of privacy on the part of theemployer in maintaining the records and that there is no \”societalinterest to be served by protecting them from disclosure or by requiringa warrant for their production.\” A similar conclusion was reached byCommission Judge Edwin Salyers in Kings Island, Division of TaftBroadcasting Co., OSAHRC 1983 CCH OSHD ? 26,638, (No. 82-1016, July 6,1983) (review directed). Since these decisions are by Commission Judgesand not the Commission, they are not binding precedent and have not beenfollowed for the reasons set forth in this decision._FINDINGS OF FACT_1. Emerson Electric Company, Electronics and Space Division (\”Emerson\”),maintains and operates a plant located on Miller Street in Longwood,Florida, which is engaged in manufacturing electronic equipment (Para.II, Complaint and Answer; Tr. 3).2. On July 11, 1984. the Tampa, Florida, area office of the OccupationalSafety and Health Administration received a complaint from an employeeof Emerson’s Miller Street plant concerning employee exposure to thechemical trichloroethane (Ex. 1; Tr. 3)3. As a result of the complaint having been received, Compliance OfficerJohn A. Santa Cruz was directed to conduct an inspection of the plant(Tr. 3).4. On July 18, 1984, Santa Cruz arrived at the plant and presented acopy of the compliant to the plant manager, Bob Raynor, and thepersonnel manager, Jo Rippetoe (Tr. 3).5. During the opening conference, Santa Cruz requested that he bepermitted to conduct an inspection of the plant and to examine Emerson’scompleted OSHA forms 101 and 200 for the years 1982, 1983 and 1984 (Tr.3-4).6. Riptoes refused to provide OSHA forms 101 and 200 for review andinformed Santa Cruz that they would not be provided except pursuant to awarrant or subpoena. She agreed to permit a warrantless inspectionlimited to allegations stated in the complaint (Tr. 4, 5).7. No recorded statistics, figures or written records of any kind werefurnished to Santa Cruz to enable them to calculate the lost workdayinjury rate (LWDI). Rippetoe told Santa Cruz that Sheila Feldman ofEmerson’s corporate industrial relations staff in St. Louis had told herthat the LWDI for the plant was 2.9 in 1983 and 5.2 in 1982 (Tr. 4-5).8. The parties stipulated that, if a violation of 29 C.F.R. ? 1904.7 forfailure to provide OSHA forms 101 and 200 was determined to haveexisted, any determined violation should be classified as an \”other thanserious\” violation and no penalties assessed for the violations (Tr. 5)._CONCLUSIONS OF LAW_1. Emerson, at all times material hereto, was engaged in a businessaffecting commerce within the meaning of section 3(5) of the Act.2. Emerson, at all times material hereto, was subject to therequirements of the Act and the standards promulgated thereunder. TheCommission has jurisdiction of the parties and of the subject matter herein.3. Emerson was not in violation of 29 C.F.R. ? 1904.7. It did notconsent to an examination of the requested forms and made clear to thecompliance officer that he would need a warrant or administrativesubpoena to examine and copy the forms. The Secretary’s right to inspectthe records is subject to judicial process that satisfies therequirements of the fourth amendment._ORDER _Based upon the foregoing findings of fact and conclusions of law, it isORDERED: That the \”other\” citation issued to Emerson on September 11,1984, is vacated.Dated this 27th day of March, 1985.JAMES D. BURROUGHSJudge————————————————————————SECRETARY OF LABOR,Complainant,v.EMERSON ELECTRIC COMPANY,ELECTRONICS AND SPACE DIVISION,RespondentOSHRC DOCKET NO. 84-0985_ORDER. _No response having been received from the Secretary, in accordance withthe Commission decision issued March 18, 1987, this case is a finalorder as of the date of this order.FOR THE COMMISSIONExecutive SecretaryDated: APR 8, 1987FOOTNOTES:[[1]] In particular, we do not agree with Judge Burroughs’ conclusionthat employers have no reasonable expectation of privacy in their injuryrecords. See Kings Island, slip op. at pp. 6-18.[[2]] Emerson Electric, the non-petitioning party in this case, did notfile a brief on review or otherwise respond to our briefing notice.Here, Emerson Electric’s failure to respond to the briefing notice hashad no effect on our ability to decide this case because the same issuehad been thoroughly discussed in the briefs in Kings Island and in threepending judges’ decisions. However, we express our strong disapproval ofcounsel’s failure to provide analysis of the very significantconstitutional issue raised here.[[3]] Our decision in King’s Island was based in part on documents thatwe took official notice of under section 7(d) of the AdministrativeProcedure Act, 5 U.S.C. {?} 556e. Slip Op. at p.11 n.6. We accordinglyafforded the Secretary an opportunity in King’s Island to introduceevidence contrary to those officially-noticed documents. We afford theSecretary the same opportunity in this case. [[1\/]] Section 1904.7(a) of 29 C.F.R. provides:Each employer shall provide, upon request, records provided for in ??1904.2, 1904.4, and 1904.5, for inspection and copying by anyrepresentative of the Secretary of Labor for the purpose of carrying outthe provisions of the act, and by representatives of the Secretary ofHealth, Education, and Welfare during any inspection under section 20(b)of the act, or by any representative of a State accorded jurisdictionfor occupational safety and health inspections or for statisticalcompilation under sections 18 and 24 of the act.[[2\/]] Section 1904.2(a) of 20 C.F.R. provides:Each employer shall, except as provided in paragraph (b) of thissection, (1 ) maintain in each establishment a log and summary of allrecordable occupational injuries and illnesses for that establishment;and (2) enter each recordable injury and illness on the log and summaryas early as practicable but no later than 6 working days after receivinginformation that a recordable injury or illness has occurred. For thispurpose form OSHA No. 200 or an equivalent which is as readable andcomprehensible to a person not familiar with it shall be used. The logand summary shall be completed in the detail provided in the form andinstructions on form OSHA No. 200.[[3\/]] Section 1904.4 of 29 C.F.R. provides:In addition to the log of occupational injuries and illnesses providedfor under ? 1904.2, each employer shall have available for inspection ateach establishment within 6 working days after receiving informationthat a recordable case has occurred, a supplementary record for eachoccupational injury or illness for that establishment. The record shallbe completed in the detail prescribed in the instructions accompanyingOccupational Safety and Health Administration Form OSHA No. 101.Workmen’s compensation, insurance, or other reports are acceptablealternative records if they contain the information in required by FormOSHA No. 101. If no acceptable alternative record is maintained forother purposes, Form OSHA No. 101 shall be used or the necessaryinformation shall be otherwise maintained.[[4\/]] Sections 9(c)(1) and (2) of the Act, in pertinent part, provide:(c)(1) Each employer shall make, keep and preserve, and make availableto the Secretary or the Secretary of Health, Education, and Welfare,such records regarding his activities relating to this Act as theSecretary, in cooperation with the Secretary of Health, Education, andWelfare, may prescribe by regulation as necessary or appropriate forenforcement of this Act or for developing information regarding thecauses and prevention of occupational accidents and illnesses.***(2) The Secretary, in cooperation with the Secretary of Health.Education, and Welfare, shall prescribe regulations requiring employersto maintain accurate records of, and to make periodic reports on,work-related deaths, injuries and illnesses other than minor injuriesrequiring only first aid treatment and which do not involve medicaltreatment, loss of consciousness, restriction of work or motion, ortransfer to another job.[[5\/]] Paragraph D.I.d. (4) of Chapter III of the Field OperationsManual provides in part:Administrative Subpoena. If the employer refuses to allow the CSHOaccess to the injury or illness records needed to perform a recordsreview for purposes of determining whether the employer is to receive acomprehensive inspection, the CSHO shall proceed as for any other caseof refused entry….[[6\/]] Paragraph D.I.d.(4)(b) provides:(b)Upon notification, the Regional Administrator shall consult with theRegional Solicitor when appropriate to determine if an administrativesubpoena or a warrant should be sought under the circumstances. If thedecision is to obtain an administrative subpoena, the RegionalAdministrator shall request the Regional Solicitor to take appropriatesteps to obtain a subpoena from the Assistant Secretary through theNational Solicitor’s Office.[[7\/]] There is an apparent conflict in the courts as to whether theSecretary must issue an administrative subpoena pursuant to section 8(b)of the Act, 29 U.S.C. ? 657(b), to inspect the records or whether he caninspect them by obtaining a warrant. Compare In Matter of Kulp Foundry,Inc., 691 F.2d 1125 (3d Cir. 1982), and In re Inland Steel Co., 492 F.Supp. 1310 (N.D. III, 1980), with Donovan v. Wollaston Alloys Inc., 695F.2d I (1st Cir. 1982).”