“SECRETARY OF LABOR,Complainant,v.KINGS ISLAND, DIVISION OF TAFT BROADCASTING COMPANY,Respondent.OSHRC Docket No. 82-1016_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\” or \”the OSH Act\”).The Commission is an adjudicatory agency, independent of the Departmentof Labor and the Occupational Safety and Health Administration (\”OSHA\”).It was established to resolve disputes arising out of enforcementactions brought by the Secretary of Labor under the Act and has noregulatory functions. See section 10(c) of the Act, 29 U.S.C. q 659(c).I.At issue is a single citation alleging a violation of 29 C.F.R. ?1904.7(a). That regulation states that employers \”shall provide\” certaininjury and illness records \”upon request\” to \”any representative\” of theSecretary, including a compliance officer engaged in a workplaceinspection, \”for inspection and copying. . . .\”[[1]] The records thatmust be provided for inspection and copying include those that theemployer is required to create and maintain on form OSHA No.200, the logand summary of occupational injuries and illnesses, or its equivalent.[[2]]The record shows, and it is undisputed, that Kings Island refused toprovide these records as required by section 1904.7. An OSHA complianceofficer came to the employer’s workplace in Kings Island, Ohio, inresponse to an employee complaint that \”fog\” used in a theatricalproduction at the American Heritage Theater had irritated the employee’seyes and upper respiratory system. The compliance officer did notpresent either an inspection warrant or an administrative subpena toKings Island’s representatives. He instead requested that Kings Islandmake available to him its OSHA form 200’s. This request was not tailoredto the reason for the inspection, i.e., the use of \”fog\” in the recenttheatrical production. Rather, the compliance officer stated that hewished to review the forms kept over the past three years for \”hygienicand environmental problems in general.\” Kings Island refused, statingthat there was no probable cause for such a broad inspection. Itasserted that the \”fog\” had been used for only slightly more than fourmonths and that there were no entries in the log indicating any illnessor injury as a result of its use. Kings Island further stated that itwould consent only to an inspection of its premises and its records thatwas limited to the scope of the employee complaint about the \”fog.\” Theemployer stated that it would not allow a broader inspection unlessthere was a search warrant or some other legal process was followed.OSHA did not respond to this denial or access by obtaining an inspectionwarrant from a federal court or by exercising its authority undersection 8(b) of the Act, 29 U.S.C. ? 657(b), to issue a subpenacompelling production of the records.[[3]] Instead, it issued thepresent citation. The citation is not accompanied by a proposed penalty.It however, state that abatement is required \”immediately.\” See section9(a) of the Act, 29 U.S.C. ? 658(a)(citations must specify abatementdate). If the Commission were to affirm the citation, Kings Island wouldthen be required to abate the violation by providing its records to OSHAunder section 1904.7. A failure to abate the violation would subjectKings Island to penalties of up to $1,000 a day.[[4]]Affirmance of the citation would therefore result in what is commonlytermed a \”constrictive search\”–a search compelled by the threat of apenalty for failure to permit the search. See Oklahoma Press PublishingCo. v. Walling, 327 U.S. 186, 202-208, 66 S.Ct. 494, 502-505 (1946).Kings Island claims that affirming the citation would therefore violateits rights under the Fourth Amendment to the Construction. Thatamendment guarantees \”[t]he right of the people to be secure in their…houses, papers and effects, against unreasonable searches and seizures,\”requires that search warrants be supported by probable cause, andfurther requires that search warrants \”particularly describ[e] the placeto be searched, and the . . . things to be seized.\”Commission Administrative Law Judge Edwin G. Salyers denied KingsIsland’s motion for summary judgment and granted the Secretary’s. JudgeSalyers agreed with the Secretary that, under \”the required recordsdoctrine,\” the OSHA form 200’s were not entitled to protection under theFourth Amendment:The Secretary also advances the persuasive argument that the FourthAmendment provides protection only when the party claiming theprotection has a legitimate expectation of privacy . . . . It is tooclear to require discussion that records mandated by law are for publicand not private use. Such records do not carry the shield of the FourthAmendment . . . .Kings Island challenges this reasoning on review. It claims that it doesnot fall within that category of businesses that are \”so pervasivelyregulated that they forfeit\” their expectation of privacy. It furtherargues that:Merely because the OSHA form 200 is required to be kept by the Act andregulations thereunder, a business should not be expected to give up itsright of privacy as to the information contained in the log. It is theinformation that is subject to the right of privacy; merely because theAct or regulations thereunder require such information to be put into aspecified format, the private nature of the information is not affected.Kings Island contends that Judge Salyer’s reasoning conflicts with theSupreme Court’s decision in Marshall v. Barlow’s, Inc., 436 U.S. 307, 98S.Ct. 1816 (1978). See, e.g., 436 U.S. at 325, 98 S.Ct. at 1827 (section8(a) of the Act \”is unconstitutional insofar as it purports to authorizeinspections without warrant or its equivalent\”).II.The first question we must ask is whether the Fourth Amendment affordsprotection to the papers here–logs and summaries of occupationalinjuries and illnesses. In Oliver v. United States, 104 S.Ct. 1735, 1740(1984), the Court stated:Since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576(1967), the touchstone of [Fourth] Amendment analysis has been thequestion whether a person has a \”con-stitutionally protected reasonableexpectation of privacy.\” . . . .The Amendment does not protect themerely subjective expectation of privacy, but only \”those expectationsthat society is prepared to as ‘reasonable’.\”Other Supreme Court decisions make clear that the Katz test applies indeter mining whether a claimant has a protected Fourth Amendmentinterest in business records seized or sought by government agents.Therefore, \”[w]e must examine the nature of the particular documentssought to be protected in order to determine whether there is alegitimate ‘expectation of privacy’ concerning their contents.\” UnitedStates v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623 (1976).A.There is no dispute that the requested logs were \”required records,\”that is, records required by state or regulation to be maintained by theemployer and produced for government inspection. See Boyd v. UnitedStates, 6 S.Ct. 524. 528 (1886)(\”books required by law to be kept fortheir inspection\”). The parties strongly disagree, however, as towhether these required records are entitled to any protection under theFourth Amendment. The Secretary argues that Kings Island has no fourthAmendment rights of any kind in the records at issue because there canbe no reasonable expectation of privacy in required records. We find,however, that federal case law does not support such a sweepingproposition. We also conclude that the proposition is unsound, that onemay indeed have a reasonable expectation of privacy in required records.The First Circuit has pointed out, in a specific reference to OSHA form200’s, that \”an employer would have less of a privacy interest in adocument it is required by statute or regulation to maintain than in adocument it produces and maintains on its own.\” Donovan v. WollastonAlloys, Inc., 695 F.2d 1, 8 (1st Cir. 1982). It does not follow,however, and the court did not suggest, that an employer has no privacyinterest in such required records. \”Privacy is not a discrete commodity,possessed absolutely or not at all.\” Smith v. Maryland, 442 U.S. 735,749, 99 S.Ct. 2577, 2585 (1979)(dissenting opinion). An employer mayhave a lesser expectation of privacy in his factory, store or officethan a homeowner has in his living room, but Barlow’s teaches us thatthis lesser expectation was among the interests that led to enactment ofthe Fourth Amendment. 436 U.S. at 311-12, 98 S.Ct. at 1819-20.Similarly, that an employer has a lesser privacy expectation in requiredrecords than in his ordinary papers does not necessarily mean that hehas no reasonable expectation of privacy in the required records.We find that federal court case law is consistent with the propositionthat employers can have some reasonable expectation of privacy in thecontents of records, they are required to keep. In United States v. BlueDiamond Coal Co., 667 F.2d 510 (6th Cir. 1981), cert. denied, 456 U.S.1007, 102 S.Ct. 2298 (1982), two members of the three-judge panesexpressly rejected the Secretary of Labor’s argument that the records atissue there were entitled to no protection under the Fourth Amendmentbecause they were required records. In his lead opinion, Judge Engelstated that \”[w]e cannot agree that these records are of interest orimportance only to the government. It is not uncommon for recordsrequired by statute to serve multiple purposes.\” 667 F.2d at 518. Seealso 667 F.2d at 522 (Keith, J., dissenting)(joining Judge Engel on thispoint).Similarly, in C.A.B. v. United Airlines, Inc., 542 F.2d 394 (7th Cir.1976), where the airline had statutory obligation to maintain therecords in question and to make them available for examination by theCivil Aeronautics Board, the court rejected the agency’s position thatit was entitled to access to the records without obtaining compulsorylegal process, stating that \”while the expectation of privacy of aregulated carrier is limited, it nevertheless exists.\” 542 F.2d at 399.In essence, the court held that, regardless of its statutory authority,the C.A.B. was required under the Fourth Amendment to obtain some formof compulsory legal process so that there would be independent judicialreview of the reasonableness of the agency’s decision to inspect therecords. Cf. United States v. Stanack Sales Co., 387 F.2d 849 (3d Cir.1968) (notwithstanding statutory authority, FDA inspector denied accessto required records without a warrant or an administrative subpena);Mid-Fla. Coin Exchange, Inc. v. Griffin, 529 F. Supp. 1006 (M.D. Fla.1981)(state statute gave law enforcement officials access upon requestto required records of dealers in second-hand precious metals; statutoryprovisions invalidated or Fourth Amendment grounds). These casesindicate that Fourth Amendment protection may well extend to requiredrecords if employers have a reasonable expectation of privacy in them.Directly or indirectly, these decisions reject the view that theclassification of business records as \”required records\” automaticallymeans that they are entitled to no protection under the Fourth Amendment.B.We next turn to whether employers have a reasonable expectation ofprivacy in the records here–occupational injury and illness records. Tobegin this inquiry, we will ask, as the Sixth Circuit implicitly did inBlue Diamond, whether an employer could reasonably have expected privacyin the contents of injury records if these regulations did not exist. Wefind that injury records, like the mine ventilation records at issue inBlue Diamond, are not of interest only to the government. Such recordsmight well be compiled for an employer’s own business reasons. Employersseeking to preserve the lives and health of valued employees, to raisethe morale of a workforce, or to secure lower insurance rates, mightconsider such records to be the most reliable means of learning whatprocesses, practices, or machinery have been the cause of workplaceinjuries and illnesses. They might find that injury records revealpatterns and afford broad perspectives in determining, for example, whatmachinery needs improvement or what work processes require modification.It is for these reasons that many employers already compiled injuryrecords before the passage of the Act and the adoption of theseregulations.[[5]] For example, a well-known private body in the safetyand health field, the American National Standards Institute (ANSI), hadissued over the course of several years various versions of ANSIZ16.1-1967, American National Standard Method of Recording and MeasuringWork Injury Experience. This 28-page- long, detailed standard wasjointly sponsored by the National Safety Council and the AmericanInsurance Association, and authorized by representatives of 47organizations. Over half of these authors were selected fromorganizations representing business and industry, such as the AerospaceIndustries Association of America, the American Iron and SteelInstitute, the American Petroleum Institute, the Forging IndustryAssociation, and the Electronic Industries Association. The purpose ofthe ANSI standard is accident prevention; it states that injury ratescompiled in accordance with its criteria may be used to evaluate theneed for accident prevention in work places, the seriousness of anaccident problem, the effectiveness of safety efforts in similarbusinesses, and the employer’s progress in accident prevention. ANSIZ16.1-1967, Introduction, p.7. Similarly, the National Safety Council’sAccident Prevention Manual for Industrial Operations (6th ed. 1969), abroad reference work covering subjects from industrial toxicology toelevators,devotes two full chapters to accident records andinvestigations. These chapters prescribe various record forms andprocedures that companies should use, explain how such records would aidin accident prevention, and state methods for computing the costs ofaccidents so that \”[f]acts about the costs of accidents may be usedeffectively in securing the active cooperation of foremen . . . [inachieving] safe operating procedures.\” id., at 281. -See also A.Ihygerson, Safety: Principles, Instruction, and Readings 10 (1972)(\”[i]ndustry, business and government often tabulate informationconcerning the frequency of accidents…..\”).See generally W.Tarrants,The Measurement of Safety Performance (1980) [[6\/]]Injury records accordingly predate the OSH Act and its record keepingregulations. Such records contain much information that, before thepassage of the Act and these regulations, employers could reasonablyhave expected would remain private. Certainly before the adoption ofOSHA’s regulations, the federal government. could not have seized theserecords without some sort of legal process. See Barlow’s, 436 U.S. at324 n.22, 98 S.Ct. at 1826 n.22. 7\/ Injury records maintained inaccordance with OSHA regulations contain important details about anemployer’s operations and manufacturing processes that evenconscientious executives might not freely reveal to outsiders. The formOSHA No. 200, for example requires that the employer compile the name,job title or description of duties of the injured employee, hisdepartment, a brief description of each injury or illness and theaffected part of the body, and the type, extent and outcome of theemployees injury or illness. The companion form, OSHA No. 101, is evenmore detailed. Each page is devoted to a single accident or illness. Itrequires the employer to answer such questions as the following:12. What was the employee doing when injured? (Be specific. If he wasusing tools or equipment or handling material, name them and tell whathe was doing with them.)13. How did the accident occur? (Describe fully the events whichresulted in the injury or occupational illness. Tell what happened andhow it happened. Name any objects or substances involved and tell howthey were involved. Give full details on all factors which led orcontributed to the accident. Use separate sheet for additional space.)14. Describe the injury or illness in detail and indicate the part ofbody affected. . . .15 Name, the object or substance which directly injured the employee.(For example, the machine or thing he struck against or which struckhim; the vapor or poison he inhaled or swallowed; the chemical orradiation which irritated his skin; or in cases of strains, hernias,etc. the thing he was lifting, pulling, etc.)We therefore conclude that the information recorded on injury records isnot of interest only to OSHA, but to both OSHA employers. The recordsserve multiple purposes, and employers have some reasonable expectationof privacy in the information recorded on them.C.The cases cited by the Secretary in support of his asserted \”requiredrecords doctrine\” do not persuade us otherwise. At the outset, we notthat only one of the cases cited by the Secretary arose in a proceduralcontext that makes it analogous to the case before us. is Peabody CoalCo., 3 BNA MSHC 1234,1983-84 CCH OSHD (P) 26,788 (FMSHRC 1984), anenforcement action under the Federal Mine Safety and Health Act of 1977,30 U.S.C. ?? 801-960 (hereafter \”Mine Safety Act\”). There, as here, theSecretary of Labor sought access to required records without obtainingan inspection warrant or other compulsory legal process, the Secretarycited the mine operator for its refusal to allow access to the records,and the mine operator defended on the ground that a warrant wasrequired. In Peabody Coal, the Federal Mine Safety and Health ReviewCommission (FMSHRC) adopted the Secretary’s\”required records\” argument,concluding \”that a search warrant was [therefore] not required.\”3 BNAMSHC at 1235-36, 1983-84 CCH OSHD at p. 34,261.We conclude, however,t h a t the Secretary’ s reliance on PeabodyCoaI is misplaced. Peabody Coal concerned a pervasively-regulated industry. Infact, nearly all of the Secretary’s arguments in this case are based oncases involving pervasively- regulated industries. Yet, the SupremeCourt has clearly indicated that cases under this separate and distinctbranch of the Fourth Amendment case law have little relevance to OSHAAct inspection issues. See Barlow’s, 436 U.S. at 313-14, 98 S.Ct. at1820-22. Indeed, in Donovan v. Dewey,452 U.S. 594, 599-605, 101 S.Ct.2534, 2538-410 (1981), the Court sharply distinguished between theprivacy expectations of mine operators under the mine Safety Act andthose of employers under the OSH Act. Peabody Coal therefore does notspeak to the issue before us. [[8\/]]The Secretary cites eight cases in his review brief relating to \”therequired records doctrine.\” Some of them contain language that supportshis position. For example, in Donovan v. Mehlenbacher, 652 F.2d 228, 231(2d Cir. 1981), the Second Circuit stated that, because \”recordsrequired to be kept pursuant to valid regulatory programs have a ‘publicaspect’ for purposes of constitutional analysis,\” they are not privatepapers entitled to the protection of the fourth or fifth amendments.\”The \”valid regulatory program\” in Mehlenbacher, however, required theSecretary to issue a subpena duces tecum to obtain access to requiredrecords maintained under the Fair Labor Standards Act (FLSA); in thecase of a refusal to comply, the Secretary had to bring an action in aUnited States district court to enforce the subpena. 652 F.2d at 229; 29U.S.C. ? 209 and 15 U.S.C. ? 49-50. Accordingly, the district courtjudge in Mehlenbacher had heard the employer’s objections to the subpenaand had modified it by restricting the Secretary’s inspection ofrequired records. 652 F.2d at 230.We think it important that, by reviewing the subpena, the district courtin Mehlenbacher afforded the employer an independent judicial review ofthe Secretary’s decision to inspect its required records. A subpenaprocedure is a form of judicial process that can, in certain situations,meet Fourth Amendment requirements. See, e.g., Donovan Lone Steer, Inc.,464 U.S. 408, 104 S.Ct. 769 (1984)(also an FLSA case). In sum,Mehlenbacher does not stand for the proposition that required recordscan be obtained without Fourth Amendment protection the employer therereceived Fourth Amendment protection. Cooper’s Express, Inc. v. I.C.C. ,330 F.2d 338 (1st Cir. 1964), also contains language that Supports theSecretary’s Position. See 330 F.2d at 340 (required records \”assume thecharacteristics of quasi-public documents and their disclosure may becompelled without violating the Fourth Amendment\”). However, thepersuasive value of Cooper’s-Express is diminished by the same factorsthat led us to discount Peabody Coal and Mehlenbacher. Cooper’s Expressarose in the context of a pervasively-regulated industry (interstatemotor carriers), which clearly influenced the court’s reasoning. See 330F.2d at 341. In addition, the I.C.C. sought access to the requiredrecords through an injunction–a form of compulsory legal process thatmet the requirements of the Fourth Amendment. [[9\/]]The other cases relied upon by the Secretary provide even less supportfor his position. The only OSH Act case cited by the Secretary isWollaston Alloys, to which we referred above in Part IIA. As weindicated, however, the statement relied upon by the Secretary, andquoted by us, suggests only that employers have a reduced or diminishedexpectation of privacy in required records, rather than no privacyinterest at all. Moreover. the logs at issue in Wollaston Alloys were infact obtained under an inspection warrant. We therefore find nothing inWollaston Alloys to support the view that the Fourth Amendment isinapplicable to OSHA form 200 logs or that these logs may be obtainedunder the Fourth Amendment without a warrant or its constitutionalequivalent.[[10]]Finally, the Secretary cites to United States v. Consolidation Coal Co.,560 F.2d 214 (6th Cir. 1977)\/ vacated and remanded, 436 U.S. 942 (1978),judgement reinstated, 579 F. 2d 1011 (6th Cir. 1978) cert. denied. 439U.S. 1069 (1979). However, this case actually supports Kings Island’sposition and not theSecretary’s In Consolidation Coal the Secretary obtained requiredrecords from a mine operator under inspection warrants. The centralissue in the case was whether the criminal standard or theadministrative standard of probable cause should be applied in obtainingsuch warrants. The Court held that the Administrative standard applied.As quoted by the Secretary in this case, the court stated inConsolidation Coal that mine operators \”have virtually no expectation ofprivacy in records and paraphernalia which they exclusively maintain incompliance with the Act.\” 560 F.2d at 20-21. Nevertheless, despite itsview that the records at issue were maintained \”exclusively\” forcompliance purposes and that the industry was one that was pervasivelyregulated, the court neither stated nor implied that the requiredrecords were entirely unprotected under the Fourth Amendment.[[11]] Onthe contrary, the court rejected \”out of hand,\” 560 F.2d at 217, theSecretary’s contention that his searches were constitutionallypermissible without the warrants. The sole effect of the diminishedexpectation of privacy referred to by the court was to reduce theSecretary’s burden in establishing probable cause to support a warrant.In sum, when it is properly read, Consolidation Coal stands for theproposition that the Fourth Amendment applies even where the employerhas a diminished expectation of privacy in required records.Accordingly, we reject the Secretary’s claim that Kings Island has noreasonable expectation of privacy in its logs and summaries ofoccupational injuries and illnesses. While the Secretary’s positionfinds some support in the case law, the better view is that theclassification of records as \”required records\” does not mean that theyare wholly unprotected under the Fourth Amendment; instead, it affectsonly the king of protection the Fourth Amendment guarantees. Indetermining that King Island has a reasonable expectation of privacy inthese specific records, we are particularly influenced by the facts thatthis is an enforcement action under a statute of broad, generalapplicability; that the employer is not part of a \”pervasively-regulatedindustry\”; and that the record sought are not \”of interest or importanceonly to the government.\” Blue Diamond 667 F.2d at 518. We conclude thatthe records at issue are entitled to the protection of the FourthAmendment. We now turn to the question of what protection the FourthAmendment affords.III.Our conclusion that the records at issue are entitled to protectionunder the Fourth Amendment does not necessarily mean that OSHA mustobtain a search warrant to gain access to them. The Protection affordedby the Fourth Amendment varied depending on a number of circumstances,including the extent of the employer’s privacy interest in the records,the degree of the government’s intrusion on those privacy, theimportance of the governmental interest at stake, and the amount ofdiscretion vested in the law enforcement official in the field. \”Theessential purpose of the proscriptions in the Fourth Amendment is toimpose a standard of ‘ reasonableness’ upon the exercise of discretionby government officials, including law enforcement agents, in order ‘tosafeguard the privacy and security of individuals against arbitraryinvasion….’ \” Delaware v. Prouse, 440 U.S. 675, 653-654, 99 S.Ct.1391, 1396 (1979). Cf. Camara v. Municipal Court, 387 U.S. 523, 532-533,87 S.Ct. 1727, 1732-1733 (1967)(primary purpose of warrant is tocircumscribe \”the discretion of the official in the field\”; warrantrequirement imposed where \”broad statutory safeguards are no substitutefor individualized review.\”); See v. City of Seattle, 887 U.S. 541,544-45, 87 S.Ct. 1737, 1740 (1967)(subpena may not be enforced by theinspector in the field; subpenaed party may obtain judicial review ofsubpena’s reasonableness before suffering penalties for refusing tocomply). However, the Fourth Amendment does not always require a warrantto achieve its goal of preventing arbitrary intrusions by governmentagents. The amendment is applied flexibly in devising differentmechanisms to achieve its objectives depending upon the circumstances.Prouse, 440 U.S. at 654-55, 99 S.Ct. at 1396-97.[[12]]For administrative inspections of business premises and businessrecords, there are at least three ways an employer’s Fourth Amendmentrights could be protected. At times, an inspection warrant, issued upona showing of \”administrative probable cause,\” is required. E.g.,Barlow’s, 436 U.S. at 320-21, 98 S.Ct. at 1824-25; See, 387 U.S. at 545,87 S.Ct. at 1740. In other circumstances, different forms of compulsorylegal process meeting less stringent Fourth Amendment tests areadequate. E.g., Lone Steer (administrative subpenas); Midwest GrowersCooperative Corp. v. Kirkemo, 533 F.2d 455, 461 (federal courtinjunction).[[13]] In still other situations, no form of compulsorylegal process is deemed necessary because \”privacy interest [is]adequately protected by [a] regulatory Eschemel authorizing warrantlessHere, the Secretary argues that the present regulatory scheme fallswithin a recognized exception to the warrant requirement that permitsthe government to compel disclosure of business records through\”compulsory reporting requirements, whose breach may result in thecomposition of civil or criminal penalties.\” The Secretary quotes thefollowing statement from California v. _Byers, 402 U.S. 424, 427-28, 91S. Ct.1535, 1537-38 (1971):An organized society imposes many burden on its constituents. Itcommands the filing of tax returns for income; it requires producers anddistributors of consumer goods to file informational reports on themanufacturing process and the content of products, on the wages, hours,and working condition of – employees. Those who borrow money on thepublic market or issue securities for sales to the public must filevarious information reports; industries must report periodically thevolume and content of pollutants discharged into our waters andatmosphere. Comparable examples are legion.Although Byers is a Fifth Amendment case rather then a Fourth Amendmentcase, the Secretary’s basic claim is accurate. Statutory and regulatoryreporting requirements like those described above have generally beenupheld against fourth Amendment challenges. E.g., California BankersAssociation v. Schultz, 416 U.S. 21, 57-62, 94 S.Ct. 1494, 1515-20 (1974).The problem with the Secretary’s argument is that 29 C.F.R. ? 1904.7(a)is not a reporting requirement. The Secretary cites no case, and we havefound none that treats a similar regulatory scheme (involving access tobusiness records upon request of field compliance personnel) as areporting requirement within the meaning of California Bankers andByers. The Secretary’s brief shows an understanding of this point, buthe nevertheless argues that:[Section 1904.7] differs from the more usually encountered reportingrequirement only in that it does not require the employer to submit therequired documents at certain specified intervals–such as monthly,quarterly or annually–but instead requires that the employer make therecords available \”upon request.\” For many employers such request by theagency will be made infrequently, if ever. To that extent the reportingobligation in 1904.7 is far less onerous than the usual statutory orregulatory reporting requirement.In essence, the Secretary is conceding that section 1904.7 is differentfrom the reporting requirements described in Byers because it involvesthe exercise of discretion by field officers in deciding which employersmust make their injury records available for inspection and copying andwhen they must do so. The Secretary asserts that this distinction isinconsequential. We conclude that the distinction is critical. It isthis very characteristic–the element of selective enforcement,involving the exercise of discretion by zealous enforcement officers inthe field–that strikes at the core of Fourth Amendment values. Itpermits administrative officers to decide–without independentadjudicative review–whose privacy shall be intruded upon, when, and towhat extent.In Mid-Fla. Coin Exchange, provisions of a Florida statute similar tothe regulations here were found to conflict with the Fourth Amendment.The statute required employers in the second-hand precious metalbusiness, which is not pervasively-regulated, to keep records of certaintransactions and to make those records available for inspection by lawenforcement officers upon request. The court noted that those statutoryprovisions \”combine aspects of\” administrative search warrants andsubpenas duces tecum \”without incorporating the protections afforded byeither.\” 529 F. Supp. at 1019. This was a critical defect in thestatutory scheme, for employers were given no opportunity for judicialreview before being compelled to produce their records, as they wouldhave been under either a warrant or a subpena procedure. 529 F. Supp. at1024-27. Accordingly, the statutory scheme imposed no restraint on thedecisions of officers in the field to inspect the records of particularemployers. This failure to provide a \”safeguard against arbitrarygovernmental intrusions\” rendered the scheme unconstitutional. 529 F.Supp. at 1026-27. The reasoning of Mid-Fla. Coin Exchange is equallyapplicable to section 1904.7. See also Illinois v. Krull, 107 111. 2d107, 481 N.E. 2d 703 (1985), rev’d on other grounds, 55 U.S.L.W. 4291(U.S. March 10, 1987).There are, however, certain narrow circumstances in which a warrantlessregulatory scheme may adequately protect against the arbitrarygovernmental intrusions condemned by Mid-Fla. Coin Exchange. Forexample, the Court concluded in Dewey that the \”inspection program[under the Mine Safety Act], in terms of the certainty and regularity ofits application, provides a constitutionally adequate substitute for awarrant.\” 452 U.S. at 603, 101 S.Ct. at 2540. It noted that the statuterequires inspection of all mines and specifically defines the frequencyof such inspections. 452 U.S. at 603-604, 101 S.Ct. of 540-41, citing 30U.S.C. ? 813. Thus, the Court reasoned, \”the federal regulatory presence[under the Mine Safety Act] is sufficiently comprehensive and definedthat the owner of commercial property cannot help but be aware that hisproperty will be subject to periodic inspections undertaken for specificpurposes.\” 452 U.S. at 600, 101 S.Ct. at 2539Dewey sharply distinguished, however, between the enforcement schemeunder the Mine Safety Act and the warrantless inspection scheme underthe OSH Act, which Barlow’s had invalidated. In making this distinction,Dewey suggested that warrantless inspections are not permissible underthe OSH Act because OSHA compliance officers have \”almost unbridleddiscretion [under the Act] . . . as to when to search and whom tosearch\” and the employer has \”little real expectation that his businesswill be subject to inspection.\” 452 U.S. at 601, 101 S.Ct. at 2539.Applying Dewey to the warrantless inspection scheme that is before usnow leads us to conclude that it is not \”a constitutionally adequatesubstitute for a warrant.\” ‘We find no greater restriction under section1904.7 on the \”almost unbridled discretion\” of OSHA compliance officersto determine \”when to search and whom to search\” than the Supreme Courtfound in the OSH Act itself. Moreover, the Secretary in effect concedesthat this is a situation where, in the words of the Dewey court, thereis \”little real expectation that a particular employer’s business willbe subject to inspection.\” As stated by the Secretary in his reviewbrief, \”[f]or many employers such request by the agency [for access torequired records] will be made infrequently, if everWe therefore hold that the cited regulation, 29 C.F.R. ? 1904.7(a), isinvalid as applied to this case. [[14\/]] Paraphrasing the holding ofBarlow’s, 436 U.S. at 375, 98 S.Ct. at 1827, we hold that section1904.7(a) violates the Fourth Amendment to the extent that it purportsto authorize an inspection required records without a warrant or its\”equivalent,\” e.g., the employer’s consent or an administrative subpenaunder section 8(b) of the Act.[[15]] Here, OSHA neither obtained aninspection warrant nor issued a section 8(b) administrative subpenacompelling Kings Island to produce its injury records. In the absence ofthis compulsory legal process, the citation alleging a violation ofsection 1904.7(a) must be vacated.Accordingly, we vacate citation 1 unless the Secretary requests anopportunity to introduce evidence contrary to officially-noticeddocuments within 15 days of this decision.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 18 1987————————————————————————SECRETARY OF LABOR,Complainant,v.KINGS ISLAND, DIVISION OF TAFTBROADCASTING COMPANY,Respondent.OSHRC Docket No. 82-1016_ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT_As a result of an employee complaint, a compliance officer from the0ccupational Safety and Health Administration attempted to make aninspection of respondent’s facility in Kings Mills, Ohio, on September1, 1982, under the provisions of 29 ‘U.S.C. ? 651, et seq. The nature ofthe complaint received to the use of \”fog\” in certain scenes of thecelebration performance at the American Heritage Theater, which \”fog\”allegedly irritated employees’ eyes and upper respiratory system. Uponarrival at the facility, the compliance officer requested he be allowedto review respondent’s log and summary of reportable occupationalinjuries and illnesses (OSHA Form No. 200). This request was denied byrespondent’s Director of Loss Prevention and respondent’s attorney. Allfactual matters have been resolved by means of discovery, and the matteris now before the undersigned Administrative Law Judge upon crossmotions for summary judgment. The sole issue in this ease is whetherrespondent violated the provisions of 29 C.F.R. ?1904.7 by its failureto produce for inspection without warrant its injuries and illnessesrecords upon request by an authorized representative of the Secretary ofLabor.The cited standard provides in part as follows:(a) Each employer shall provide, upon request, records provided 11for in ?1904.2,1\/- 1904.4, and 1904.5,. for inspection and copying byany representative of the Secretary- of Labor for the purpose ofcarrying out the provisions of the act . . . .These regulations were promulgated pursuant to section 8(c)(1) of theAct which provides in pertinent part:Each employer shall make, keep and preserve, and make available to theSecretary … such records regarding his activities relating to this Actas the Secretary . . . may prescribe by regulation as necessary orappropriate for the enforcement of this Act or for developinginformation regarding the causes and prevention of occupationalaccidents and illnesses. [29 U.S.C.? 657(e)(1)]Respondent relies primarily on the Supreme Court’s decision in Marshallv. Barlow’s, Inc., 436 U. S. 307, which prohibits warrantlessinspections of an employer’s facilities under section 8(a) of the Actwhen an employer objects to such inspection [[2\/]]. The Secretarycounters with the \”required record\” argument that this decision shouldnot apply to an inspection conducted under section 8(c)(I) of the Actwhereby the Secretary seeks only to inspect records which are requiredby statute to be kept and made available to the Secretary upon request.Both parties make convincing arguments in support of their respectivepositions.The strongest support for respondent’s position is found in footnote 22of Barlow’s,supra, which is fully quoted below:Delineating the scope of a search with some care is particularlyimportant where documents are involved. Section 8(c) of the Act, 29U.S.C. ? 657(c), provides that an employer must \”make, keep andpreserve, and make available to the Secretary [of Labor] or to theSecretary Of Health, Education and Welfare\” such records regarding hisactivities relating to OSHA as the Secretary of Labor may prescribe byregulation as necessary or appropriate for enforcement of the statute orfor developing information regarding the causes and prevention ofoccupational accidents and illnesses. Regulations requiring employers tomaintain records of and to make periodic reports on \”work-relateddeaths, injuries and illnesses\” are also contemplated, as are rulesrequiring accurate records of employee exposures to potential toxicmaterials and harmful physical agents.In describing the scope of the warrantless inspection authorized by thestatute, ? 8(a) does not expressly include any records among those itemsor things that may be examined, and ? 8(c) merely provides that theemployer is to \”make available\” his pertinent records and to makeperiodic reports.The Secretary’s regulation, 29 CFR ? 1903.3 (1977), however, expresslyincludes among the Inspector’s powers the authority \”to review record,required by the Act and regulations published in this chapter, and otherrecords which tire directly related to the purpose of the inspection.\”Further, ? 1903.7 requires inspectors to indicate generally \”the recordsspecified it, ? 1901.3 which they wish to review\” but \”such designationsor records shall not proclude 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.The order that issued in this case included among the objects and thingsto be inspected \”all other things therein (including but not limited torecords, files, papers, processes, controls and facilities) bearing uponwhether Barlow’s, Inc., is furnishing to its employees employment and aplace of employment that are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to itsemployees, and whether Barlow’s, Inc. is complying with . . . the OSHAregulations.Respondent argues a proper reading of this footnote compels a conclusionthat the Secretary’s effort to obtain any employer records without awarrant and over the objection of the employer violates theconstitutional right against illegal searches and protected by theFourth Amendment.The Secretary urges that a distinction must be made between recordsrequired to be kept by law and all other records. He relies upon thewell established \”required records\” doctrine and cites numerous cases insupport.[[3\/]]A careful study of the Barlow’s decision, supra, and footnote 22 compelsthe conclusion that the Court neither expressed nor implied an intent tooverturn the firmly established \”required record\” doctrine. The footnotepoints out that section 8(a) of the Act does not specifically deal withrecords and notes that this power emanates from the Secretary’sregulations contained at 29 C.F.R. ? 1903.3 which provides the right \”toreview records required by the Act . . . and other records which aredirectly related to the purpose of the inspection\” (Emphasis supplied).The Court does not strike down the Secretary’s right to inspect\”required records\” but merely rejects the Secretary’s position that heis entitled to non-required record as well, noting \”an inspection ofdocuments of this scope\” may not be effected without a warrant.The Secretary appropriately points out that he proceeds under section8(c)(1) of the Act and his regulation contained at 29 C.F.R. ? 1904.7.These provisions of the Act and regulations, as set out above, specifythe records required to be maintained and that these records shall bemade available upon request by the Secretary. Unlike the Languagecontained in 29 C.F.R. ? 1903.4, the language of 29 (C.F.R. ? 1904.7does not require the production of any other records except thoserequired by law. This factor is sufficient to distinguish the facts ofthe instant case from the holding in Barlow’s.The Secretary also advances the persuasive argument that the FourthAmendment provides protection only when the party claiming theprotection has a legitimate expectation of privacy. Katz v. U. S., 389U.S. 347 (1967). It is too clear to require discussion that recordsmandated by law are for public and not private use. Such records do notcarry the shield of the Fourth Amendment. Wilson v. U. S., 221 U.S. 361(1911); Rodgers v. U.S., 138 F.2d 992 (6th Cir. 1943).Respondent also urges the Secretary, at best, is entitled only to thoserecords directly related to and within the scope of the employee’scomplaint, citing Donovan v. Blue Ridge Pressure Castings Inc., 543 F.Supp. 53 (M.D. Pa. 1981). In Blue Ridge, the Court did limit theSecretary’s inspection of company records to those areas delineated inthe employee complaint. but the Court went on to state:. . .[H]owever, if Blue Ridge cannot effectively segregate the pertinentrecords of these employees from its company files, then, it must allowOSHA to examine all of the employee records referred to in the warrant.[543 F. Supp. 61]Since respondent has admitted it did not segregate OSHA Forms 200(Secretary’s Second Request for Admissions, Request No.1; andRespondent’s Response), Blue Ridge, supra, offers no support for itsdisposition.Accordingly, respondent’s failure to produce the required recordsconstitutes a violation of 29 C.F.R. ? 1904.7.After due consideration of the briefs and arguments in this matter, itis hereby ORDERED:The Secretary’s motion for summary judgment be, and it hereby is,granted and respondent’s motion for summary judgment be, and hereby is,deniedEDWIN G. SALYERSJudgeDate: July 6, 1983————————————————————————SECRETARY OF LABORComplainant,v.KINGS ISLAND, DIVISION OFTAFT BROADCASTING COMPANYRespondentOSHRC Docket No. 82-1016_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 COMMISSIONRay H Darling, Jr.Executive SecretaryDated: APR 6 1987 FOOTNOTES:[[1]] Section 1904.7 states:?1904.7 Access to records.(a) 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 ….[b](3) Access to the log provided under this section shall pertain toall logs retained under the requirements of ?1904.6.[[2]] Section 1904.2 and 1904.6 state in part:?1904.2 Log and summary of occupational injuries and illnesses.(a) Each employer shall… (1) maintain in each establishment a log andsummary of all recordable occupational injuries and illnesses for thatestablishment; and (2) enter each recordable injury or illness on thelog summary as early as practicable but no later than 6 working daysafter receiving information that a recordable injury or illness hasoccurred. For this purpose from OSHA No. 200 or an equivalents… shallbe used. The log and summary shall be completed in the detail providedin the form and instructions on form OSHA No. 200.****?1904.6 _Retention of records._Records provided for in ??1904.2, 1904.4 and 1904.5… shall beretained in each establishment for 5 years following the end of the yearto which they relate.[[3]] Section 8(b) of the Act states that:In making his inspections and investigations under this Act[,] theSecretary may require the attendance and testimony of witnesses and theproduction of evidence under oath. Witnesses shall be paid the samefees and mileage that are paid witnesses in the courts of the UnitedStates. In case of contumacy, failure, or refusal of any person to obeysuch an order, any district court of the United States courts of anyterritory or possession, within the jurisdiction to issue to such personan order requiring such person appear to produce evidence if, as, andwhen so ordered, and to give testimony relating to the matter underinvestigation or in question, and any failure to obey such order of thecourt may be punished by said court as a contempt thereof.[[4]] See section 10(b) of the Act, 29 U.S.C. ?659(b), and section17(d), 29 U.S.C. ?666 (d); see also section 11(b), 29 U.S.C. ?660(b)(judicial remedies, including contempt, for failure to abate).[[5]] Recognition of this fact is implicit in the Secretary’s assertionthat these records are required records.\” The required records doctrinedeveloped by the Supreme Court involves the application of athree-pronged test for determining whether particular records areproperly characterized as \”required records.\” The Second prong of thistest is that \”information is to be obtained by requiring thepresentation of records of kind which the regulated party hascustomarily kept.\” Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 713 (1968). See also Bionic Auto Parts & Sales, Inc. v. Fahner,721 F.2d 1072, 1083 (7th Cir. 1983) (records could not be considered\”required records\” because \”[a]utomotive parts dealers… probablywould not record whether a serial number had been defaced in theabsence of state regulation. Recording that information would notfacilitate their normal business activity.\”). Thus, to even qualify asa \”required record,\” the papers required to be kept must be of the sortthat businesses customarily keep for their own purposes. While thisdoes not necessarily mean that an employer always has a reasonableexpectation of privacy in required records, it does suggest theinfirmity of the Secretary’s view that an employer never does.We also note that under section 1904.2(a) the employer has the option ofmaintaining its record of injuries and illnesses on either form OSHA No.200 or \”an equivalent [form].\” This suggests that many employersmaintained such records in a similar format before the Secretarydeveloped his form OSHA No. 200 and imposed a requirement for suchrecordkeeping.[[6]] We take official notice of these publication under section 7(d) ofthe Administrative Procedure Act, 5 U.S.C. ?555(e). That provisionstates in part that \”[w]hen an agency decision rests on official noticeof a material fact not appearing in the evidence in the record, a partyis entitled, on timely request, to an opportunity to show thecontrary.\” We will afford the Secretary this opportunity.[[7]] In footnote 22 of its decision in Barlow’s, the Court stated thatan inspection of records of the scope sought in that case could not beeffected without a warrant or its equivalent is necessary to obtainaccess to required records, but clearly indicates that a warrant isnecessary for access to any other business records.[[8]] We also note that Peabody Coal relied heavily on the concurringopinion in Blue Diamond. As we have observed previously, two of thethree judges in Blue Diamond expressly rejected the Secretary’s argumentin that case that coal mine operators could have no reasonableexpectation of privacy in required records. On this issue, therefore,the concurring opinion cited by the FMSHRC presented a minority viewpoint.[[9]] Specifically, the I.C.C. brought an action to obtain a federalcourt injunction. The importance of this procedure is not readilyapparent on the face of the Copper’s Express does make this clear. Midwest Growers Cooperative Corp. v. Kirkemo, the injunction procedureunder the Interstate Commerce Act is analogous to a subpena procedureand equally protective of Fourth Amendment rights.[[10]] Two other cases relied upon by the Secretary are inapposite. Roders v. United States, 138 F.2d 992 (6th Cir. 1943, involved theconstitutionality of a statutory reporting requirement rather than anagency effort to obtain access to required records maintained by theemployer. For the reasons we discuss below, Rodgers conclude that thesetwo situation are not analogous. In any event, Rogers preceded Katz by24 years. It therefore can shed little light on the proper applicationof the \”reasonable expectation of privacy\” test. Indeed, we do not readRodgers as suggesting that the employer had no Fourth Amendment interestin the information he was compelled to provide. United States v.Snyder, 668 F.2d 686 (2d Cir. 1982), is predominantly a \”standing\” case,that is, the union official claiming the protection of the FourthAmendment had \”no reasonable expectation of privacy\” in the record atissue because they were the union’s records, not his. This is clearfrom the court’s reliance on Rakas v. Illinois, not show that theinspection violated his personal fourth amendment rights.\” 668 F.2d at690 (emphasis added.)[[11]] In reaching its conclusion that mine operators have littleexpectation of privacy in required records, the court was stronglyinfluenced by the pervasive regulation of the mine industry. This isclear from viewing the language quoted by the Secretary in context:Our conclusion is bolstered by the fact that the coal mining industryhas a history of close regulation under the aegis of the commerceclause…. Therefore, it reasonable to assume that mine operators havea reduced expectation of privacy in their business offices than lesshighly scrutinized enterprises….. They have virtually no expectationof privacy in records and paraphernalia which they exclusively maintainin compliance with the Act.560 F.2d at 220-21 (case citation omitted). We also not that the courtreferred to records that are maintained \”exclusively\” for the purpose ofcomplying with a statute. Such records are distinguishable from therecords at issue here, which \”serve multiple purposes.\” Blue Diamond,667 F.2d at 518.[[12]] One commentator makes this point by noting that the FourthAmendment is no longer treated as an \”all-or-nothing proposition\”; inother words, he suggests, \”there is some Fourth Amendment middleground.\” 1 LaFave, Search and Seizure ?2.1(e), at p. 315 (2d ed.1987). Thus, more recent decisions recognize that \”it is possible tosubject….. [a particular] law enforcement practice to some restraintsso as to ensure that it is not used in a dragnet fashion or in a randomor unprincipled fashion, but yet not destroy its effectiveness byimposing all the limitations which are applicable to other, moretraditional kinds of searches that are much more threatening to privacyand security.\” Id.[[13]] In Prouse, the Court stated that \”the [Fourth Amendment]reasonableness standard usually requires, at a minimum, that the factupon which an intrusion is based be capable of measurement against ‘anobjective standard,’ whether this be probable cause or a less stringenttest.\” 400 U.S. at 654, 99 S.Gt. at 1396. Under both theadministrative subpena procedure and the federal court injunctionprocedure, the \”reasonableness\” of the government’s demand for access tobusiness records is measured against the \”less stringent\” FourthAmendment test first announced in Oaklahoma Press, 327 U.S. at 208, 66S. Ct. at 505. Thus, for example, an administrative subpena complieswith the Fourth Amendment if the inquiry is one the agency is authorizedby law to make, the subpena is not too indefinite or board in itsdescription of the records to be produced, and the materials specifiedare relevant. See also Lone Steer, 464 U.S. at 414-15, 104 S.Ct, at773; See, 387 U.S. at 544, 87 S.Ct. at 1740. The Barlow’s\/Camara\/Seetest for determining the existence of \”administrative probable cause\” isanother example of a Fourth Amendment test that is \”less stringent\” thanthe traditional test for determining probable cause in a criminalproceeding.[[14]] In footnote to his review brief, the Secretary states that KingsIsland’s contention \”that 29 C.F.R. 1904.7 is violation of the FourAmendment…. necessarily involves a challenge to the constitutionalityof section 8(c) [of the Act].\” Because \”the Commission is withoutauthority to pass on the fundamental constitutionality of the statute,\”he continues, \”the Commission’s authority to decide the issues presentedin this case is questionable.\” We reject this argument. Section8(c)(1) of the Act, 29 C.F.R. ?657(c)(1) states only that the employershall \”make [requirement records] available to the Secretary,\” withoutspecifying how this is to be done. The statute is neutral in thequestion of whether compulsory legal process is necessary in order forthe Secretary to obtain access. It is only the cited regulation thatpurports to compel access to required records in the absence ofcompulsory legal process. Since the constitutionality of section 8(c)is not at issue, there can be no bar to our resolution of the issues inthis case.[[15]] We have upheld section 1904.7 citations when a warrant or subpenahas been obtained for access to the records sought. See ThermalReduction Corp., 85 OSAHRC____, 12 BNA OSHC 1264, 1984-85 CCH OSHD?27,248 (No. 81-2135, 1985). See also the concurring opinion in thatcase. 12 BNA OSHC at 1270, 1984-85 CCH OSHD at p. 35,201.[[1\/]] The standard requires an employer to maintain a log and summaryof all recordable occupational injuries and illness in eachestablishment and directs that OSHA Form 200 (or its equivalent) be usedfor this purpose.[[2\/]] The reasons given for respondent’s refusal to produce records iscontained in the Secretary’s Request for Admissions, item 7 andRespondent’s Response thereto:(7) On September 1, 1982, Compliance Officer Carroll made a request toRichard C. Fussner and to Robert J. Townsend, that Respondent’s OSHAForm 200 be made available to him for inspection and copying for thepast three (3) years so that he could review it for \”hygienic andenvironmental problems in general\” which had no relationship at all tothe employee complaint which was the purpose for his inspection. Mr.Carroll was informed that Respondent was consenting to an inspection ofits premises and records, which was limited to only the scope of theemployee complaint. He was expressly told that any inspection beyondthe scope of the complaint would not be authorized by Respondent withoutthe issuance of a search warrant or other legal process. Mr. Carrollwas told that his request to inspect the 200 log for the purposes hestated constituted a \”finishing expedition\” and that he had notdemonstrated any probable cause for such a request. Mr. Carroll wasalso informed that the smoke which was the subject of the employeecomplaint was first used in the American Heritage Theater on April 24,1982 and that there were no entries on the Form 200 log indicating anyillness or injury as a result of the use of the smoke.[[3\/]] Boyd v. U.S., 116 U.S. 616, 6 S. Ct. 524; Hale V. Henkel, 201U.S. 43, S. Ct. 370 (1906); Cooper’s Express, Inc. v. I.C.C., 330 F.2d338 (1st Cir. 1964); Bowles v. Glick Bros. Lumber Co., 146 F.2d 566 (9thCir. 1954); Rodgers v. U.S., 138 F2.d 992 (6th Cir. 1943); Wilson v.U.S., 221 U.S. 361 (1911); Katz v. U.S. 289 U.S. 347 (1967); Shapiro v.U.S., 335 U.S. 1 (1948); U.S. v. Miller, 425 U.S., 435 (1976); Rakas v.Illinois, 439 U.S., 128 (1978); U.S. v. Snyder, 668 F.2d 686 (2d Cir.1982); U.S. v. Gordon, 655 F.2d 478 (2d Cir. 1981); U.S. v.Consolidation Coal Co., 560 F.2d 214 (6th Cir. 1977); Erie BottlingCorp. v. Donovan, 539 F. Supp. 600 (W.D. Pa. 1982); and Donovan v.Dewey, 101 S. Ct. 2534 (1981).”