“Docket No. 88-1962 SECRETARY OF LABOR, Complainant, v. HERN IRON WORKS, INC., Respondent.OSHRC Docket No. 88-1962ORDERThis case is here at the direction of the United States Court of Appeals for the NinthCircuit.\u00a0 Dole v. Hern Iron Works. Inc., [to be published at] 937 F.2d 612(table) [15 BNA OSHC 1158 (full text)] (9th Cir. 1991) (unpublished), rev’g HernIron Works, Inc., 14 BNA OSHC 1446, 1987-90 CCH OSHD ? 28,783 (No. 88-1962, 1989ALJ).\u00a0 In accordance with the Ninth Circuit’s decision and mandate, we herebyreinstate the citation issued to Hern Iron Works, Inc. (\”Hern\”) alleging awillful violation of 29 C.F.R. ? 1904.7 for failure to provide to representatives of theSecretary, upon their request, prescribed injury and illness records.\u00a0 We remand thiscase to Administrative Law Judge Benjamin R. Loye for consideration of the merits of thecitation.In his decision below, Judge Loye relied on Commission precedent holding that section1904.7 does not authorize representatives of the Secretary to inspect the required recordswithout a valid warrant, an administrative subpoena, or the employer’s consent.\u00a0 SeeTaft Broadcasting Co., Kings Island Division, 13 BNA OSHC 1137, 1146, 1986-87 CCHOSHD ? 27,861, p. 36,490 (No. 82-1016, 1987), aff’d, 849 F.2d 990 (6th Cir. 1988).\u00a0 He found that, although the Secretary’s representatives presented a 1987 warrantwhen they sought to inspect Hern’s records in May of 1988, the inspection was not based onthat warrant, but rather on newly received employee complaints.\u00a0 Finding no validwarrant, subpoena, or consent authorizing the inspection, Judge Loye vacated the citation.The Secretary filed a petition for review withthe Commission, but the case was not directed for review and became a final order of theCommission under section 12(j) of the Occupational Safety and Health Act (\”theAct\”), 29 U.S.C. ? 661(j).The Ninth Circuit granted the Secretary’spetition for review, filed pursuant to section 11(b) of the Act, 29 U.S.C. ? 660 (b).\u00a0 The court concluded that the judge’s finding that the inspection was not conductedpursuant to a warrant was not supported by substantial evidence in the record.\u00a0 Thecourt noted that the record was \”replete with credible evidence that the 1988 searchwas pursuant to a valid 1987 warrant.\”\u00a0 According to the court, the judge abusedhis discretion in ignoring that evidence, particularly the August 1988 findings of afederal district court, in a related action brought by Hern, that the 1987 warrant wasvalid.\u00a0 The Ninth Circuit therefore reversed the judge’s decision and \”remandedwith instructions to reinstate the citation.\”Because the judge did not reach the merits ofthe citation that we have reinstated herein, we remand this case to him to make thosedeterminations. Recognizing the need for prompt action in this case, we order expeditedproceedings pursuant to the Commission’s Rule of Procedure at 29 C.F.R. ? 2200.103(a).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. Wiseman CommissionerDated: September 6, 1991SECRETARY OF LABOR, Complainant, v. HERN IRON WORKS, INC., Respondent.OSHRC DOCKET No. 88-1962APPEARANCES: For the Complainant:William W. Kates, Esq., Office of the Solicitor, U. S. Department of Labor, Seattle, WAFor the Respondent:Harvey Richman, Esq., Coeur D’Alene, ID Gary N. Herbert, Esq., Mountain States Legal Foundation, Denver, CODECISION AND ORDER Loye, Judge:This proceeding arises under the OccupationalSafety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the\”Act\”).On May 24, 1988, following receipt of twoemployee complaints, the Occupational Safety and Health Administration (OSHA), attemptedto conduct an inspection at the workplace of Hern Iron Works, respondent in this action,in Coeur D’Alene, Idaho (Tr. 68, 70).\u00a0 Mr. John A. Hern, respondent’s owner, wasinformed of the reason for the inspection and asked to provide the Compliance Officerswith OSHA accident and injury logs as described in 29 CFR ? 1904 (Tr. 71, 73).\u00a0 Mr.Hern asked to be shown a warrant (Tr. 71).\u00a0 A copy of a warrant previously issued inJune 1987 was provided Mr. Hern (Tr. 72).\u00a0 After speaking to his attorney, Mr. Hernrefused to cooperate with an inspection (Tr. 77-78).\u00a0 Respondent was issued acitation for violation of 29 CFR ? 1904.7 which requires that \”[e]ach employer shallprovide, upon request, records provided for in ??1904.2, 1904.4, and 1904.5. . .\”i.e. logs and summaries of occupational injuries and illnesses.The Commission has found ? 1904.7unconstitutionally invalid insofar as it \”purports to authorize an inspection ofrequired records without a warrant or its \”equivalent,\” e.g. the employer’sconsent or an administrative subpoena. . . \” Taft Broadcasting Co., Kings IslandDivision, 13 BNA OSHC 1137 (No. 82-1016, 1987), aff’d, 849 F.2d 990 (6th Cir.1988).There is no question that Hern did not consentto inspection of its records.\u00a0 No administrative subpoena was produced.\u00a0 Thetestimony indicates that although the Compliance Officer presented respondent with a yearold warrant, the inspection of respondent’s workplace was not instigated for the purposeof executing that warrant, but rather was the result of newly received employeecomplaints.\u00a0 Moreover, the Secretary does not argue that the inspection wasauthorized by the June 1987 warrant; in fact her brief never mentions the warrant.This judge is bound by the holding in Taft Broadcasting Co.\u00a0 In the absence ofany evidence that OSHA’s request for respondent’s records was consented to or authorizedby facially valid compulsory legal process, respondent’s failure to provide the requestedrecords cannot constitute the basis for citation.Findings of Fact and Conclusions of LawAll findings of fact and conclusions of lawrelevant and necessary to a determination of the contested issues have been foundspecially and appear in the decision above.\u00a0 See Rule 52(a) of the FederalRules of Civil Procedure.\u00a0 Proposed Findings of Fact or Conclusions of Law that areinconsistent with this decision are denied.Order1. Willful citation 1, item 1 alleging violation of ?1904.7 is DISMISSED.Benjamin R. Loye Judge, OSHRCDated: November 15, 1989″