“SECRETARY OF LABOR,Complainant,v.JOHNSON & JOHNSON PRODUCTS, INC.,andETHICON, INC.,Respondents.AMALGAMATED CLOTHING AND TEXTILEWORKERS UNION,Authorized EmployeeRepresentative.OSHRC Docket Nos. 81-1339 &81-2454_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:These cases are before the Occupational Safety and Health ReviewCommission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act.\”) [[1]] The Commission is an adjudicatory agency, independent of the Departmentof Labor and the Occupational Safety and Health Administration. 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 whether the Respondents, Johnson & Johnson Products, Inc. (\”JJPI\”), and Ethicon, Inc., violated 29 C.F.R. ? 1910.20(e)(2)(i) [[2]]when they denied the requests of a law firm for access to employeeexposure records of five employees for use in litigation before a stateagency. In separate opinions, two administrative law judges vacated thecitation items at issue on the ground that the Respondents had noobligation under the cited standard to grant the law firm access to therequested exposure records. We agree with the judges and affirm theirdecisions.JJPI and Ethicon both have workplaces in Chicago. Four employees ofEthicon and one employee of JJPI retained the law firm of Lewis &Davidson, Ltd., to represent them in pursuing separate workers’compensation and\/or occupational disease claims against their employersbefore the Illinois Industrial Commission. In connection with theseclaims, the law firm wrote a series of letters to JJPI and Ethiconrequesting copies of specified records. With one exception, notedbelow, these request letters were essentially identical: (a) theyasserted that Lewis & Davidson was the \”designated representative\” ofthe named employee, (b) they requested copies of all of the namedemployee’s personal medical records and all relevant exposure records,and (c) they cited 29 C.F.R. ? 1910.20 as the source of the employer’sasserted duty to permit access to the requested records. [[3]]Enclosed with each of these initial requests for access was astandardized form, filled in and signed by the particular employeeidentified in the cover letter. The form is captioned \”Authorizationfor Release of Employee Medical Record Information Pursuant to 29 C.F.R.? 1910.20.\” Each of the five employees filled in blanks on the form inidentical language. In pertinent part, the authorization forms signedby the employees all state:I, [named employee], hereby authorize [named employer] (individual ororganization holding the records) to release to Lewis & Davidson Ltd.the following medical information from my personal records: any and all.I give my permission for this medical information to be used for thefollowing purpose: investigation and legal representation.JJPI and Ethicon denied each of the law firm’s requests for access. With respect to three of the employees, Ethicon wrote letters to Lewis &Davidson in which it noted that access was being denied because \”Weconsider the use of 29 C.F.R. Sec. 1910.20 for the purposes of discoveryin . . . Worker’s Compensation cases … to be entirely inappropriate.\”As a result of the denial of access to Lewis & Davidson of the employeeexposure records, the Secretary issued citations to JJPI and Ethiconalleging violations of section 1910.20(e)(2)(i). In addition, bothemployers were charged with violating 29 C.F.R. ? 1910.20(e)(2)(ii)based on the denial of access to the medical records of the fiveemployees.[[4]]In their decisions, the two judges reached the same conclusions. Bothjudges held that the signed authorizations included with Lewis &Davidson’s requests for access constituted \”specific written consent\”for access to employee medical records and affirmed the citationrelating to the denial of access to medical records. However, thejudges agreed with JJPI and Ethicon that the employers were under noobligation to permit access to employee exposure records because thesigned authorizations were limited by their terms to medical records. These citation items were vacated.Section 1910.20(c)(3) states that designated representatives who are notcollective bargaining agents, as is the case here, must obtain anemployee’s \”written authorization to exercise a right of access\” inorder to obtain access to any of the records covered by the Secretary’sstandards. [[5]] A representative seeking access to employee medicalrecords must obtain an authorization that meets the detailerrequirements of section 1910.20(c)(10), which defines the term \”specificwritten consent.\” In contrast, a representative seeking access toemployee exposure records only needs to obtain an authorization \”whichis signed and indicates that the designated representative is authorizedto exercise the employee’s right of access.\” [[6]]On review, the Secretary contends that Lewis & Davidson was entitled toaccess to employee exposure records because it was a \”designatedrepresentative\” within the meaning of the cited standard. He reasonsthat, when the five employees gave Lewis & Davidson \”specific writtenconsent\” to obtain their medical records, each employee thereby gave thelaw firm \”written authorization to exercise a right of access\” (emphasisadded) within the meaning of section 1910.20(c)(3); by definition,therefore, Lewis & Davidson was a \”designated representative\” of thefive employees for the purposes of all of the designated representativeaccess provisions in section 1910.20, including the cited standard.[[7]]We conclude that the Secretary’s argument is contrary to the structure,language and stated intent of the standard. We therefore decline toadopt the Secretary’s interpretation of section 1910.20(e)(2)(i).With regard to the structure of the standard, we note that the threesubparts of section 1910.20(e)(2) establish three separate and distinctrights of access: (i) to employee exposure records, (ii) to employeemedical records, and (iii) to analyses using exposure or medicalrecords. The preamble to the final standard clearly reveals that theSecretary chose to treat these three rights of access separately becausehe concluded that there were significant differences among the threecategories of records involved. For example, the requirement of\”specific written consent\” before a designated representative can obtainpersonal medical records is a limitation on access rights that does notapply when the representative seeks other types of records. Thisreflects the Secretary’s determination that employees have a strongerprivacy interest in restricting access to their own medical records thanthey have in maintaining the confidentiality of other records. Accordingly, the structure of the standard, with its differing treatmentof various rights of access, supports the conclusion of both judgesbelow that authorization for access to one type of record should not beviewed as authorization for access to another.The Secretary’s argument also conflicts with the language of section1910.20 because it is contrary to the entire concept of \”specificwritten consent\” (emphasis added). The standard contemplates that anemployee, by giving \”specific written consent,\” can limit or restrictthe types of records that a representative has access to. Thus, weagree with the argument made by JJPI and Ethicon that \”specific writtenconsent\” by its very nature \”is specific to medical records only andlimited by the conditions placed on the consent.\” The employerscorrectly assert that the Secretary’s position would remove theseintended limitations.For this same reason, the interpretation of section 1910.20(e)(2)(i)advocated by the Secretary conflicts with his stated intent in adoptingthe standard. The preamble to the final standard establishes that, indefining the access rights of employee representatives, the Secretarysought to give employees control over who was to exercise those accessrights. E.g., 45 Fed. Reg. at 35,216, 35,218. The judges accordinglywere effectuating the Secretary’s original intent when they concludedthat the written authorizations at issue in this case should be readliterally.We therefore adopt the judges’ interpretation of section1910.20(e)(2)(i) and hold that, with the exception of a recognized orcertified collective bargaining agent, an individual or organization isnot a \”designated representative\” within the meaning of that sectionunless it has written authorization to exercise an employee’s right ofaccess to employee exposure records. This interpretation does notcreate any significant obstacle to access and insures greater employeecontrol over that access. It is therefore more consistent with the formand purpose of the standard than the interpretation advocated by theSecretary and the Authorized Employee Representative.Accordingly, the judges’ decisions to vacate item 1A in Docket No.81-1339 and item 1B in Docket No. 81-2454 are affirmed. [[8]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATE: JUL 20 1984CLEARY, Commissioner, dissenting:These two cases present a single issue of regulatory interpretationarising from the Secretary’s efforts to enforce 29 C.F.R. ? 1910.20. This standard was promulgated in 1980 for the purpose of enablingemployees to obtain access, either directly or indirectly through theirrepresentatives, to medical and exposure records maintained by theiremployers. See Preamble, Final Standard, 45 Fed. Reg. 35212-35277 (May23, 1980). The issue to be resolved is whether a law firm that wasgiven \”specific written consent\” by five employees to obtain access totheir medical records was thereby also authorized to act as a\”designated representative\” of these employees for the purpose ofobtaining access to employee exposure records. The Secretary’s positionis summarized in his petition for discretionary review in Docket No.81-1339. He contends that \”execution of a specific written consent torequest medical records demonstrates that the individual or organizationis the employee’s designated representative [and] thereforeautomatically confers authority to request exposure records and analyses.\”The Secretary of Labor was the \”author\” or \”drafter\” of ? 1910.20, whichwas promulgated through the extensive rulemaking procedures of section6(b) of the Act, 29 U.S.C. ? 655(b). In addition, however, theSecretary’s position is supported by the language of the standard and itis consistent with both the structure or organization of the standardand its stated purposes as disclosed in the preamble to the finalstandard. In comparing the various subsections of section 1910.20(e)(2)and examining the sample form published in the standard’s appendix, itbecomes clear that the Secretary intended to create a distinctionbetween access to an employee’s personal medical records and access tothe other records covered by the standard, including employee exposurerecords. In order for any employee representative to obtain access toan employee’s medical records, the representative must have thatemployee’s \”specific written consent.\” However, in contrast to themedical records provision, the standard that is at issue before us,section 1910.20(e)(2)(i), does not use the phrase \”specific writtenconsent\” or any other language that would create the same kind ofrestriction on access to employee exposure records. All that isrequired to gain access to these records is a simple designation of arepresentative.There is no ambiguity in the standard, and the Secretary is merelyseeking in these cases to apply the cited standard according to itsterm. Five employees signed standardized authorization forms in whichthey requested their employers to release to Lewis & Davidson any andall medical information in their individual personnel files. Lewis &Davidson therefore became a \”designated representative,\” as that term isdefined in subsection 1910.20(c)(3) and used throughout the entiresection, because it was \”[an] organization to whom an employee giveswritten authorization to exercise a right of access.\” Identifyingitself as a \”designated representative\” of the five employees and citingsection 1910.20 as an authority for its actions, Lewis & Davidsonrequested the two employers to grant it access to relevant employeeexposure records. Accordingly, under the express terms of the citedstandard, Lewis & Davidson was entitled to the requested access becausesection 1910.20(e)(2)(i) provides that \”[e]ach employer shall, uponrequest, assure the access of each employee and designatedrepresentative to employee exposure records relevant to the employee.\”Because the standard contains only a single definition of \”designatedrepresentative,\” the Secretary correctly argues that an individual ororganization, such as Lewis & Davidson, that is indisputably a\”designated representative\” within the meaning of one of the standard’ssubsections, e.g., section 1910.20(e)(2)(ii)(B) [medical records], is a\”designated representative\” within the meaning of the other subsections,e.g., section 1910.20(e)(2)(i) [exposure records], as well.[[1]] TheSecretary’s interpretation is supported by the \”accepted rule ofstatutory construction that the same words or phrases are presumed tohave the same meaning when used in different parts of a statute.\” Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 725 (9th Cir. 1978),and cases cited. The correctness of the Secretary’s position is alsoconfirmed by the use of the phrase \”a right of access\” (emphasis added)in the standard’s definition of \”designated representative.\” Use ofthat phrase is inconsistent with the view that employees must specifywhich access rights a designated representative is authorized to exercise.I agree with the Secretary that the position adopted by the judges andnow by the majority erroneously incorporates the requirement of specificwritten consent into the cited standard. True, the judges did not saythat an authorization meeting all of the specifications of section1910.20(c)(10) is necessary for designation of a representative toobtain access to exposure records. Nevertheless, the critical elementdistinguishing designation of a representative from \”specific writtenconsent\” is a description of the particular records that therepresentative is authorized to examine. See 29 C.F.R. ?1910.20(c)(10)(E). This is what the judges erroneously incorporatedinto the standard at issue. Thus, the judge in Docket No. 81-2454 heldthat \”[w]ithout consent from the employees to release exposure records,the Respondent was under no obligation to do so and was justified in itsdeclination.\”The preamble to the final standard further corroborates the Secretary’sposition in this case because it emphasizes, more clearly than thestandard itself, the intended distinction between access to medicalrecords and access to employee exposure records. With respect tomedical records, one of the Secretary’s primary concerns was theprotection of the privacy interests of the employees who were thesubjects of the records. The \”specific written consent\” provision ofsection 1910.20(e)(2)(ii)(B) and the careful definition of that term insection 1910.20(c)(10) were designed, according to the Secretary, to\”minimize the possibility of invasion of an employee’s privacy.\” 45Fed. Reg. 35216.In contrast, the Secretary concluded \”that the privacy interestsinvolved in exposure records are minimal and any risk of harm is clearlyoutweighed by the need for access.\” 45 Fed. Reg. 35272.[[2]]There is yet another basis for disagreeing with the majority. The lawfirm representing the employees sent two types of documents to theRespondent. The first was a letter saying that the firm was adesignated representative of a certain employee, and requesting copiesof all that employee’s medical records and of all exposure records. They also sent a written consent for each employee authorizing releaseof medical information and giving permission for the medical informationto be released to the representatives.The majority, as did the Judges, focuses on the second document — therelease of medical information. However, this has nothing to do withthe release of exposure records. Only the first document is relevant –the letter from the law firm. The law firm attests that it is thedesignated representative, and that it wants exposure records. The onlyquestion at this point is whether or not the employees had designatedthe representative in writing. Nobody has ever questioned this – notthe Respondent, not the Judges, nor the majority. Further, there is norequirement that the law firm supply the Respondent with copies of anyform designating them as representative, if any such writing had beenrequested. Respondent had no reason to believe the law firm was not thedesignated representative and, if so, they could have inquired furtherwhether the law firm was designated in writing. They did not do so, andhence I don’t believe the designation of the law firm as representativeof employees should be an issue before this Commission.Further, the Respondent has never seriously argued (and the Judges neverdecided) that the law firm in question was not the designatedrepresentative of employees. The case was argued, and the case wasdecided on the basis that there had to be more than a designation of arepresentative; that there had to be specific written authorization toobtain exposure records, as well as medical records. As indicatedheretofore, I do not think this is true.The majority would also decide that even if they were to find that therewas a violation, they would find that under the circumstances of thecase, the violation was de minimis. As such, no abatement is required,and in this case the employees will not be able to obtain records oftheir exposure to toxic substances. I dissent as to this aspect of themajority decision as well for I do not believe records of exposure totoxic substances is a de minimis matter. It seems to be concluded thatrecords of exposure to toxic substances are matters of safety andhealth, but they are not if obtained incident to litigation. Themajority is saying that the standard will not be enforced if it is usedfor litigation purposes. The standard relates to obtaining information,and I know of no authority, and none is supplied, for the propositionthat this Commission may refuse to enforce a standard because they arenot in agreement with the use of information once obtained.It is irrelevant what the purpose for obtaining these records was. Whatis relevant is, was the designated representative entitled to them?————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The two cases present the same question of law on nearly identicalfacts. Respondents are both wholly-owned subsidiaries of the sameparent corporation, Johnson & Johnson. Affected employees in the twocases are represented by the same authorized employee representative,which has elected party status in both cases. Based on this commonalityof parties and issues, we consolidate these cases for decision underCommission Rule 9, 29 C.F.R. ? 2200.9[[2]] The cited standard provides:? 1910.20 Access to employee exposure and medical records(e) Access to records–(2) Employee and designated representative access–(i) Employee exposure records. Each employer shall, upon request,assure the access of each employee and designated representative toemployee exposure records relevant to the employee. For the purpose ofthis section, exposure records relevant to the employee consist of:(A) Records of the employee’s past or present exposure to toxicsubstances or harmful physical agents.(B) Exposure records of other employees with past or present job dutiesor working conditions related to or similar to those of the employee,(C) Records containing exposure information concerning the employee’sworkplace or working conditions, and(D) Exposure records pertaining to workplaces or working conditions towhich the employee is being assigned or transferred.[[3]] Lewis & Davidson’s access request with respect to Wayne P. Eichmandiffered from the other letters. The law firm requested copies only ofEichman’s medical records and made no reference to employee exposurerecords. Ethicon correctly argued before the administrative law judgethat the absence of any request from the law firm for exposure recordsrelevant to Eichman constitutes an alternative ground for vacating the ?1910.20(e)(2)(i) charge with respect to Eichman.[[4]] This subsection provides, in pertinent part:(2) Employee and designated representative access –* * *(ii) Employee medical records.* * *(B) Each employer shall, upon request, assure the access of eachdesignated representative to the employee medical records of anyemployee who has given the designated representative specific writtenconsent. Appendix A to this section contains a sample form which may beused to establish specific written consent for access to employeemedical records.The term \”specific written consent\” is defined at ? 1910.20(c)(10) asmeaning a written authorization containing the information that isspecified in that definition. The \”sample form\” referred to in thestandard served as the model for Lewis & Davidson’s standardizedauthorization form.[[5]] The term \”designated representative,\” as used throughout ?1910.20, is defined in ? 1910.20(c)(3), as follows:(c) Definitions.(3) \”Designated representative\” means any individual or organization towhom an employee gives written authorizations to exercise a right ofaccess. For the purposes of access to employee exposure records andanalyses using exposure or medical records, a recognized or certifiedcollective bargaining agent shall be treated automatically as adesignated representative without regard to written employee authorization.[[6]] In promulgating ? 1910.20, the Secretary published the followingexplanation of the \”designated representative\” provisions of the standard:The preamble to the proposed rule discussed the term \”designatedrepresentative as follows:This proposal does not provide a limiting definition of \”designatedrepresentative.\” Rather, a designated representative could be anyone towhom an employee has given written permission to act on his or herbehalf to obtain direct access to his or her records. For instance, acollective bargaining agent, physician, attorney, family member, fellowemployee, or anyone else, could be a designated representative, providedthe necessary consent were obtained.* * *The final standard on subparagraph (c)(3) makes this explicit. Designated representatives include \”any individual or organization towhom an employee gives written authorization to exercise a right ofaccess.\” The final rule contains no rigid criteria as to what thiswritten authorization must say. Any written statement which is signedand indicates that the designated representative is authorized toexercise the employee’s right of access will suffice ….45 Fed. Reg. 35212, 35260 (May 23, 1980) (emphasis added).[[7]] On review, the Secretary appears to concede that the language ofthe authorizations refers only to medical records. In any event, theprovisions of ? 1910.20 and its Appendix A compel the rejection of anysuggestion that the standardized authorization form by its terms coversanything beyond medical records. See note 4 supra.[[8]] Even if we were to find that there was a violation, we would findthat, under the circumstances of this case, it was de minimis. A deminimis violation is one in which there is technical noncompliance witha standard but the departure from the standard bears so littlerelationship to employee safety or health that it is inappropriate toassess a penalty or require abatement of the violation. Keco Industries,Inc., 11 BNA OSHC 1832, 1984 CCH OSHD ? 26,810 (No. 81-1976, 1984). Therecords here were sought for discovery purposes for a proceedingunrelated to the safety and health purposes of the Act. See sections2(b) and 8(a) of the Act, 29 U.S.C. ?? 651(b) and 657(a).[[1]] Because review was neither sought nor directed on the affirmanceby both judges of the alleged violations of ? 1910.20(e)(2)(ii)(B), itis undisputed on review that Lewis & Davidson was a \”designatedrepresentative\” within the meaning of that standard.[[2]] Thus, the Secretary stated:Designated representative access simply enables workers to avoid havingto personally obtain information which they will then provide to a thirdparty; rather, the desired third party can get direct access with workerconsent.45 Fed. Reg. 35226″