“Docket No. 81-1339 81-2454 SECRETARY OF LABOR, Complainant, v.JOHNSON & JOHNSON PRODUCTS, INC., andETHICON, INC., Respondents.AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION,Authorized Employee Representative.OSHRC Docket Nos. 81-1339 & 81-2454DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:These cases are before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act.\”) [[1]]\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).At issue is whether the Respondents, Johnson & Johnson Products, Inc. \u00a0(\”JJPI\”), and Ethicon, Inc., violated 29 C.F.R. ? 1910.20(e)(2)(i) [[2]] whenthey denied the requests of a law firm for access to employee exposure records of fiveemployees for use in litigation before a state agency.\u00a0 In separate opinions, twoadministrative law judges vacated the citation items at issue on the ground that theRespondents had no obligation under the cited standard to grant the law firm access to therequested exposure records.\u00a0 We agree with the judges and affirm their decisions.JJPI and Ethicon both have workplaces in Chicago.\u00a0 Four employees ofEthicon and one employee of JJPI retained the law firm of Lewis & Davidson, Ltd., torepresent them in pursuing separate workers’ compensation and\/or occupational diseaseclaims against their employers before the Illinois Industrial Commission.\u00a0 Inconnection with these claims, the law firm wrote a series of letters to JJPI and Ethiconrequesting copies of specified records.\u00a0 With one exception, noted below, theserequest letters were essentially identical:\u00a0 (a) they asserted that Lewis &Davidson was the \”designated representative\” of the named employee, (b) theyrequested copies of all of the named employee’s personal medical records and all relevantexposure 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 a standardizedform, filled in and signed by the particular employee identified in the cover letter.\u00a0 The form is captioned \”Authorization for Release of Employee Medical RecordInformation Pursuant to 29 C.F.R. ? 1910.20.\”\u00a0 Each of the five employeesfilled in blanks on the form in identical language.\u00a0 In pertinent part, theauthorization forms signed by the employees all state:I, [named employee], hereby authorize [named employer] (individual ororganization holding the records) to release to Lewis & Davidson Ltd. the followingmedical information from my personal records: any and all.I give my permission for this medical information to be used for thefollowing purpose:\u00a0 investigation and legal representation.JJPI and Ethicon denied each of the law firm’s requests for access. \u00a0With respect to three of the employees, Ethicon wrote letters to Lewis & Davidson inwhich it noted that access was being denied because \”We consider the use of 29 C.F.R.Sec. 1910.20 for the purposes of discovery in . . . Worker’s Compensation cases … to beentirely inappropriate.\”As a result of the denial of access to Lewis & Davidson of the employeeexposure records, the Secretary issued citations to JJPI and Ethicon alleging violationsof section 1910.20(e)(2)(i).\u00a0 In addition, both employers were charged with violating29 C.F.R. ? 1910.20(e)(2)(ii) based on the denial of access to the medical records of thefive employees.[[4]]In their decisions, the two judges reached the same conclusions.\u00a0 Bothjudges held that the signed authorizations included with Lewis & Davidson’s requestsfor access constituted \”specific written consent\” for access to employee medicalrecords and affirmed the citation relating to the denial of access to medical records.\u00a0 However, the judges agreed with JJPI and Ethicon that the employers were under noobligation to permit access to employee exposure records because the signed authorizationswere limited by their terms to medical records.\u00a0 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 an employee’s \”writtenauthorization to exercise a right of access\” in order to obtain access to any of therecords covered by the Secretary’s standards. [[5]] A representative seeking access toemployee medical records must obtain an authorization that meets the detailer requirementsof section 1910.20(c)(10), which defines the term \”specific written consent.\”\u00a0 In contrast, a representative seeking access to employee exposure records onlyneeds to obtain an authorization \”which is signed and indicates that the designatedrepresentative is authorized to 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 \”designated representative\”within the meaning of the cited standard.\u00a0 He reasons that, when the five employeesgave Lewis & Davidson \”specific written consent\” to obtain their medicalrecords, each employee thereby gave the law firm \”written authorization to exercise aright of access\” (emphasis added) within the meaning of section 1910.20(c)(3); bydefinition, therefore, Lewis & Davidson was a \”designated representative\” ofthe five employees for the purposes of all of the designated representative accessprovisions 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.\u00a0 We therefore decline to adopt theSecretary’s interpretation of section 1910.20(e)(2)(i).With regard to the structure of the standard, we note that the three subpartsof section 1910.20(e)(2) establish three separate and distinct rights of access: (i) toemployee exposure records, (ii) to employee medical records, and (iii) to analyses usingexposure or medical records.\u00a0 The preamble to the final standard clearly reveals thatthe Secretary chose to treat these three rights of access separately because he concludedthat there were significant differences among the three categories of records involved.\u00a0 For example, the requirement of \”specific written consent\” before adesignated representative can obtain personal medical records is a limitation on accessrights that does not apply when the representative seeks other types of records. \u00a0This reflects the Secretary’s determination that employees have a stronger privacyinterest in restricting access to their own medical records than they have in maintainingthe confidentiality of other records.\u00a0 Accordingly, the structure of the standard,with its differing treatment of various rights of access, supports the conclusion of bothjudges below that authorization for access to one type of record should not be viewed asauthorization for access to another.The Secretary’s argument also conflicts with the language of section 1910.20because it is contrary to the entire concept of \”specific written consent\”(emphasis added).\u00a0 The standard contemplates that an employee, by giving\”specific written consent,\” can limit or restrict the types of records that arepresentative has access to.\u00a0 Thus, we agree with the argument made by JJPI andEthicon that \”specific written consent\” by its very nature \”is specific tomedical records only and limited by the conditions placed on the consent.\”\u00a0 Theemployers correctly assert that the Secretary’s position would remove these intendedlimitations.For this same reason, the interpretation of section 1910.20(e)(2)(i)advocated by the Secretary conflicts with his stated intent in adopting thestandard.\u00a0 The preamble to the final standard establishes that, in defining theaccess rights of employee representatives, the Secretary sought to give employees controlover who was to exercise those access rights.\u00a0 E.g., 45 Fed. Reg. at 35,216, 35,218.The judges accordingly were effectuating the Secretary’s original intent when theyconcluded that the written authorizations at issue in this case should be read literally.We therefore adopt the judges’ interpretation of section 1910.20(e)(2)(i) andhold that, with the exception of a recognized or certified collective bargaining agent, anindividual or organization is not a \”designated representative\” within themeaning of that section unless it has written authorization to exercise an employee’sright of access to employee exposure records.\u00a0 This interpretation does not createany significant obstacle to access and insures greater employee control over thataccess.\u00a0 It is therefore more consistent with the form and purpose of the standardthan the interpretation advocated by the Secretary and the Authorized EmployeeRepresentative.Accordingly, the judges’ decisions to vacate item 1A in Docket No. 81-1339and item 1B in Docket No. 81-2454 are affirmed. [[8]]FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATE:\u00a0 JUL 20 1984CLEARY, Commissioner, dissenting:These two cases present a single issue of regulatory interpretation arisingfrom the Secretary’s efforts to enforce 29 C.F.R. ? 1910.20.\u00a0 This standard waspromulgated in 1980 for the purpose of enabling employees to obtain access, eitherdirectly or indirectly through their representatives, to medical and exposure recordsmaintained by their employers.\u00a0 See Preamble, Final Standard, 45 Fed. Reg.35212-35277 (May 23, 1980).\u00a0 The issue to be resolved is whether a law firm that wasgiven \”specific written consent\” by five employees to obtain access to theirmedical records was thereby also authorized to act as a \”designatedrepresentative\” of these employees for the purpose of obtaining access to employeeexposure records.\u00a0 The Secretary’s position is summarized in his petition fordiscretionary review in Docket No. 81-1339.\u00a0 He contends that \”execution of aspecific written consent to request medical records demonstrates that the individual ororganization is the employee’s designated representative [and] therefore automaticallyconfers authority to request exposure records and analyses.\”The Secretary of Labor was the \”author\” or \”drafter\” of? 1910.20, which was promulgated through the extensive rulemaking procedures of section6(b) of the Act, 29 U.S.C. ? 655(b).\u00a0 In addition, however, the Secretary’s positionis supported by the language of the standard and it is consistent with both the structureor organization of the standard and its stated purposes as disclosed in the preamble tothe final standard.\u00a0 In comparing the various subsections of section 1910.20(e)(2)and examining the sample form published in the standard’s appendix, it becomes clear thatthe Secretary intended to create a distinction between access to an employee’s personalmedical records and access to the other records covered by the standard, includingemployee exposure records.\u00a0 In order for any employee representative to obtain accessto an employee’s medical records, the representative must have that employee’s\”specific written consent.\”\u00a0 However, in contrast to the medical recordsprovision, the standard that is at issue before us, section 1910.20(e)(2)(i), does not usethe phrase \”specific written consent\” or any other language that would createthe same kind of restriction on access to employee exposure records.\u00a0 All that isrequired to gain access to these records is a simple designation of a representative.There is no ambiguity in the standard, and the Secretary is merely seeking inthese cases to apply the cited standard according to its term.\u00a0 Five employees signedstandardized authorization forms in which they requested their employers to release toLewis & Davidson any and all medical information in their individual personnel files.\u00a0 Lewis & Davidson therefore became a \”designated representative,\” asthat term is defined in subsection 1910.20(c)(3) and used throughout the entire section,because it was \”[an] organization to whom an employee gives written authorization toexercise a right of access.\”\u00a0 Identifying itself as a \”designatedrepresentative\” of the five employees and citing section 1910.20 as an authority forits actions, Lewis & Davidson requested the two employers to grant it access torelevant employee exposure records.\u00a0 Accordingly, under the express terms of thecited standard, Lewis & Davidson was entitled to the requested access because section1910.20(e)(2)(i) provides that \”[e]ach employer shall, upon request, assure theaccess of each employee and designated representative to employee exposure recordsrelevant to the employee.\”Because the standard contains only a single definition of \”designatedrepresentative,\” the Secretary correctly argues that an individual or organization,such as Lewis & Davidson, that is indisputably a \”designated representative\”within the meaning of one of the standard’s subsections, e.g., section1910.20(e)(2)(ii)(B) [medical records], is a \”designated representative\” withinthe meaning of the other subsections, e.g., section 1910.20(e)(2)(i) [exposure records],as well.[[1]]\u00a0 The Secretary’s interpretation is supported by the \”accepted ruleof statutory construction that the same words or phrases are presumed to have the samemeaning when used in different parts of a statute.\”\u00a0 Chugach Natives, Inc. v.Doyon, Ltd., 588 F.2d 723, 725 (9th Cir. 1978), and cases cited.\u00a0 The correctness ofthe Secretary’s position is also confirmed by the use of the phrase \”a right ofaccess\” (emphasis added) in the standard’s definition of \”designatedrepresentative.\”\u00a0 Use of that phrase is inconsistent with the view thatemployees must specify which access rights a designated representative is authorized toexercise.I agree with the Secretary that the position adopted by the judges and now bythe majority erroneously incorporates the requirement of specific written consent into thecited standard.\u00a0 True, the judges did not say that an authorization meeting all ofthe specifications of section 1910.20(c)(10) is necessary for designation of arepresentative to obtain access to exposure records.\u00a0 Nevertheless, the criticalelement distinguishing designation of a representative from \”specific writtenconsent\” is a description of the particular records that the representative isauthorized to examine.\u00a0 See 29 C.F.R. ? 1910.20(c)(10)(E).\u00a0 This is what thejudges erroneously incorporated into the standard at issue.\u00a0 Thus, the judge inDocket No. 81-2454 held that \”[w]ithout consent from the employees to releaseexposure 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 the standard itself, theintended distinction between access to medical records and access to employee exposurerecords.\u00a0 With respect to medical records, one of the Secretary’s primary concernswas the protection of the privacy interests of the employees who were the subjects of therecords.\u00a0 The \”specific written consent\” provision of section1910.20(e)(2)(ii)(B) and the careful definition of that term in section 1910.20(c)(10)were designed, according to the Secretary, to \”minimize the possibility of invasionof an employee’s privacy.\”\u00a0 45 Fed. Reg. 35216.In contrast, the Secretary concluded \”that the privacy interestsinvolved in exposure records are minimal and any risk of harm is clearly outweighed by theneed for access.\”\u00a0 45 Fed. Reg. 35272.[[2]]There is yet another basis for disagreeing with the majority.\u00a0 The lawfirm representing the employees sent two types of documents to the Respondent.\u00a0 Thefirst was a letter saying that the firm was a designated representative of a certainemployee, and requesting copies of all that employee’s medical records and of all exposurerecords.\u00a0 They also sent a written consent for each employee authorizing release ofmedical information and giving permission for the medical information to be released tothe representatives.The majority, as did the Judges, focuses on the second document — therelease of medical information.\u00a0 However, this has nothing to do with the release ofexposure records.\u00a0 Only the first document is relevant — the letter from the lawfirm.\u00a0 The law firm attests that it is the designated representative, and that itwants exposure records.\u00a0 The only question at this point is whether or not theemployees had designated the representative in writing.\u00a0 Nobody has ever questionedthis – not the Respondent, not the Judges, nor the majority.\u00a0 Further, there is norequirement that the law firm supply the Respondent with copies of any form designatingthem as representative, if any such writing had been requested.\u00a0 Respondent had noreason to believe the law firm was not the designated representative and, if so, theycould have inquired further whether the law firm was designated in writing.\u00a0 They didnot do so, and hence I don’t believe the designation of the law firm as representative ofemployees 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 designated representative of employees.\u00a0 The case was argued, and the case was decided on the basis that there had to bemore than a designation of a representative; that there had to be specific writtenauthorization to obtain exposure records, as well as medical records.\u00a0 As indicatedheretofore, I do not think this is true.The majority would also decide that even if they were to find that there wasa violation, they would find that under the circumstances of the case, the violation wasde minimis.\u00a0 As such, no abatement is required, and in this case the employees willnot be able to obtain records of their exposure to toxic substances.\u00a0 I dissent as tothis aspect of the majority decision as well for I do not believe records of exposure totoxic substances is a de minimis matter.\u00a0 It seems to be concluded that records ofexposure to toxic substances are matters of safety and health, but they are not ifobtained incident to litigation.\u00a0 The majority is saying that the standard will notbe enforced if it is used for litigation purposes.\u00a0 The standard relates to obtaininginformation, and I know of no authority, and none is supplied, for the proposition thatthis Commission may refuse to enforce a standard because they are not in agreement withthe use of information once obtained.It is irrelevant what the purpose for obtaining these records was.\u00a0 Whatis relevant is, was the designated representative entitled to them?The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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.\u00a0 Respondents are both wholly-owned subsidiaries of the same parentcorporation, Johnson & Johnson.\u00a0 Affected employees in the two cases arerepresented by the same authorized employee representative, which has elected party statusin both cases.\u00a0 Based on this commonality of parties and issues, we consolidate thesecases for decision under Commission 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.\u00a0 Each employer shall, upon request, assure the accessof each employee and designated representative to employee exposure records relevant tothe employee.\u00a0 For the purpose of this section, exposure records relevant to theemployee consist of:(A) Records of the employee’s past or present exposure to toxic substances orharmful physical agents.(B) Exposure records of other employees with past or present job duties or workingconditions related to or similar to those of the employee,(C) Records containing exposure information concerning the employee’s workplace or workingconditions, and (D) Exposure records pertaining to workplaces or working conditions to which the employeeis being assigned or transferred.[[3]] Lewis & Davidson’s access request with respect to Wayne P. Eichmandiffered from the other letters.\u00a0 The law firm requested\u00a0 copies only ofEichman’s medical records and made no reference to employee exposure records. \u00a0Ethicon correctly argued before the administrative law judge that the absence of anyrequest from the law firm for exposure records relevant to Eichman constitutes analternative 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 each designated representativeto the employee medical records of any employee who has given the designatedrepresentative specific written consent.\u00a0 Appendix A to this section contains asample form which may be used to establish specific written consent for access to employeemedical records.The term \”specific written consent\” is defined at ? 1910.20(c)(10)as meaning a written authorization containing the information that is specified in thatdefinition.\u00a0 The \”sample form\” referred to in the standard served as themodel for Lewis & Davidson’s standardized authorization 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 to whom anemployee gives written authorizations to exercise a right of access.\u00a0 For thepurposes of access to employee exposure records and analyses using exposure or medicalrecords, a recognized or certified collective bargaining agent shall be treatedautomatically as a designated representative without regard to written employeeauthorization.[[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 \”designated representative asfollows:This proposal does not provide a limiting definition of \”designatedrepresentative.\”\u00a0 Rather, a designated representative could be anyone to whom anemployee has given written permission to act on his or her behalf to obtain direct accessto his or her records. For instance, a collective bargaining agent, physician, attorney,family member, fellow employee, or anyone else, could be a designated representative,provided the necessary consent were obtained.* * *The final standard on subparagraph (c)(3) makes this explicit.\u00a0 Designatedrepresentatives include \”any individual or organization to whom an employee giveswritten authorization to exercise a right of access.\”\u00a0 The final rule containsno rigid criteria as to what this written authorization must say.\u00a0 Any writtenstatement which is signed and indicates that the designated representative is authorizedto exercise 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 of the authorizationsrefers only to medical records.\u00a0 In any event, the provisions of ? 1910.20 and itsAppendix A compel the rejection of any suggestion that the standardized authorization formby its terms covers anything beyond medical records.\u00a0 See note 4 supra.[[8]] Even if we were to find that there was a violation, we would find that,under the circumstances of this case, it was de minimis. A de minimis violation is one inwhich there is technical noncompliance with a standard but the departure from the standardbears so little relationship to employee safety or health that it is inappropriate toassess a penalty or require abatement of the violation. Keco Industries, Inc., 11 BNA OSHC1832, 1984 CCH OSHD ? 26,810 (No. 81-1976, 1984).\u00a0 The records here were sought fordiscovery purposes for a proceeding unrelated to the safety and health purposes of theAct.\u00a0 See sections 2(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 affirmance byboth judges of the alleged violations of ? 1910.20(e)(2)(ii)(B), it is undisputed onreview that Lewis & Davidson was a \”designated representative\” within themeaning of that standard.[[2]] Thus, the Secretary stated:Designated representative access simply enables workers to avoid having to personallyobtain information which they will then provide to a third party; rather, the desiredthird party can get direct access with worker consent.45 Fed. Reg. 35226″