“SECRETARY OF LABOR,Complainant,v.HERN IRON WORKS, INC.,Respondent.OSHRC Docket No. 88-1962_ORDER_This case is here at the direction of the United States Court of Appealsfor the Ninth Circuit. _Dole v. Hern Iron Works. Inc._, [to bepublished at] 937 F.2d 612 (table) [15 BNA OSHC 1158 (full text)] (9thCir. 1991) (unpublished), _rev’g_ _Hern Iron Works, Inc_., 14 BNA OSHC1446, 1987-90 CCH OSHD ? 28,783 (No. 88-1962, 1989 ALJ). In accordancewith the Ninth Circuit’s decision and mandate, we hereby reinstate thecitation issued to Hern Iron Works, Inc. (\”Hern\”) alleging a willfulviolation of 29 C.F.R. ? 1904.7 for failure to provide torepresentatives of the Secretary, upon their request, prescribed injuryand illness records. We remand this case to Administrative Law JudgeBenjamin R. Loye for consideration of the merits of the citation.In his decision below, Judge Loye relied on Commission precedent holdingthat section 1904.7 does not authorize representatives of the Secretaryto inspect the required records without a valid warrant, anadministrative subpoena, or the employer’s consent. _See_ _TaftBroadcasting Co., Kings Island Division_, 13 BNA OSHC 1137, 1146,1986-87 CCH OSHD ? 27,861, p. 36,490 (No. 82-1016, 1987), _aff’d_, 849F.2d 990 (6th Cir. 1988). He found that, although the Secretary’srepresentatives presented a 1987 warrant when they sought to inspectHern’s records in May of 1988, the inspection was not based on thatwarrant, but rather on newly received employee complaints. Finding novalid warrant, subpoena, or consent authorizing the inspection, JudgeLoye vacated the citation.The Secretary filed a petition for review with the Commission, but thecase was not directed for review and became a final order of theCommission under section 12(j) of the Occupational Safety and Health Act(\”the Act\”), 29 U.S.C. ? 661(j).The Ninth Circuit granted the Secretary’s petition for review, filedpursuant to section 11(b) of the Act, 29 U.S.C. ? 660 (b). The courtconcluded that the judge’s finding that the inspection was not conductedpursuant to a warrant was not supported by substantial evidence in therecord. The court noted that the record was \”replete with credibleevidence that the 1988 search was pursuant to a valid 1987 warrant.\” According to the court, the judge abused his discretion in ignoring thatevidence, particularly the August 1988 findings of a federal districtcourt, in a related action brought by Hern, that the 1987 warrant wasvalid. The Ninth Circuit therefore reversed the judge’s decision and\”remanded with instructions to reinstate the citation.\”Because the judge did not reach the merits of the citation that we havereinstated herein, we remand this case to him to make thosedeterminations. Recognizing the need for prompt action in this case, weorder expedited proceedings pursuant to the Commission’s Rule ofProcedure at 29 C.F.R. ? 2200.103(a).Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: September 6, 1991————————————————————————SECRETARY 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, IDGary N. Herbert, Esq., Mountain States LegalFoundation, Denver, CO_DECISION AND ORDER_Loye, Judge:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. Section 651 _et seq_.; hereafter called the \”Act\”).On May 24, 1988, following receipt of two employee complaints, theOccupational Safety and Health Administration (OSHA), attempted toconduct an inspection at the workplace of Hern Iron Works, respondent inthis action, in Coeur D’Alene, Idaho (Tr. 68, 70). Mr. John A. Hern,respondent’s owner, was informed of the reason for the inspection andasked to provide the Compliance Officers with OSHA accident and injurylogs as described in 29 CFR ? 1904 (Tr. 71, 73). Mr. Hern asked to beshown a warrant (Tr. 71). A copy of a warrant previously issued in June1987 was provided Mr. Hern (Tr. 72). After speaking to his attorney,Mr. Hern refused to cooperate with an inspection (Tr. 77-78). Respondent was issued a citation for violation of 29 CFR ? 1904.7 whichrequires that \”[e]ach employer shall provide, upon request, recordsprovided for in ??1904.2, 1904.4, and 1904.5. . .\” i.e. logs andsummaries of occupational injuries and illnesses.The Commission has found ? 1904.7 unconstitutionally invalid insofar asit \”purports to authorize an inspection of required records without awarrant or its \”equivalent,\” e.g. the employer’s consent or anadministrative 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 consent to inspection of itsrecords. No administrative subpoena was produced. The testimonyindicates that although the Compliance Officer presented respondent witha year old warrant, the inspection of respondent’s workplace was notinstigated for the purpose of executing that warrant, but rather was theresult of newly received employee complaints. Moreover, the Secretarydoes not argue that the inspection was authorized by the June 1987warrant; in fact her brief never mentions the warrant.This judge is bound by the holding in _Taft Broadcasting Co_. In theabsence of any evidence that OSHA’s request for respondent’s records wasconsented to or authorized by facially valid compulsory legal process,respondent’s failure to provide the requested records cannot constitutethe basis for citation._Findings of Fact and Conclusions of Law_All findings of fact and conclusions of law relevant and necessary to adetermination of the contested issues have been found specially andappear in the decision above. _See_ Rule 52(a) of the Federal Rules ofCivil Procedure. Proposed Findings of Fact or Conclusions of Law thatare inconsistent with this decision are denied._Order_1. Willful citation 1, item 1 alleging violation of ?1904.7 is DISMISSED.Benjamin R. LoyeJudge, OSHRCDated: November 15, 1989″