“Docket No. 87-1220 SECRETARY OF LABOR,Complainant, v. MONFORT OF COLORADO, INC., Respondent.\u00a0 PAMELA NELSON, Intervenor.OSHRC Docket No. 87-1220DECISION BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN,Commissioners. BY THE COMMISSION:Former Commission Administrative Law JudgeWilliam R. Mullins affirmed a citation issued to Monfort of Colorado, Inc.(\”Monfort\”) for a willful violation of 29 C.F.R. ? 1904.7(b)(1).[[1\/]]\u00a0That regulation requires an employer to make available its logs and summaries ofoccupational injuries and illnesses, which are recorded on OSHA No. 200 forms (\”OSHA200’s\”).\u00a0 These forms must be made available, upon request, to employees, formeremployees, and their representatives, without a search warrant or its equivalent. I. BackgroundMonfort, a company headquartered in Greeley,Colorado, operates a meat packing plant in Grand Island, Nebraska, where Pamela Nelson wasemployed from September 1982 through March 1986.\u00a0 In late January 1987, Nelson, whowas then an employee of the United Food and Commercial Workers International Union, sent aletter to Monfort’s Grand island plant, requesting copies of Monfort’s OSHA 200’s for theyears 1982 through 1986.\u00a0 Nelson later testified that she sought the OSHA 200’s tolearn more about the back and neck injury that she incurred while working at the GrandIsland plant.\u00a0 In early March 1987, after Monfort failed to comply with her request,Nelson filed a written complaint with the Occupational Safety and Health Administration(\”OSHA\”).\u00a0 The OSHA Area Director sent Monfort a letter giving notice ofNelson’s complaint, as well as three subsequent letters asking that the OSHA 200’s for1982 through 1986 be turned over to Nelson, before issuing a citation alleging thatMonfort was in willful violation of section 1904.7(b)(1).Monfort does not dispute that it failed tocomply with the request.\u00a0 Bruce Holton, Monfort’s personnel manager, who initiallyreceived the request, testified that he \”felt at the time that it was a unionrequest.\u00a0 I in fact denied the request …. \” That argument was reiterated byMonfort in its response to the OSHA Area Director’s first letter notifying it of thecomplaint.\u00a0 In its response to a subsequent letter from the Area Director, Monfortasserted that for it to provide the OSHA 200’s to Nelson would be to violate section8(a)(2) of the National Labor Relations Act (\”NLRA\”), 29 U.S.C. ? 158(a)(2) ,which prohibits giving unlawful assistance to unions.\u00a0 Also in that letter, Monfortargued for the first time that, in authorizing warrantless searches, section 1904.7(b)(1)violated its privacy interest in its OSHA 200’s, which it asserted is protected by theFourth Amendment.Although he affirmed the violation as willful,Judge Mullins did not address Monfort’s contention that the regulation violated the FourthAmendment.\u00a0 He concluded that he lacked the authority to decide whether theregulation violated the Fourth Amendment, citing Buckeye Industries, Inc. v. Secretary,587 F.2d 231, 235 (5th Cir. 1979).[[2\/]]\u00a0 He assessed a penalty of $100.\u00a0 Hefound that Monfort had a \”good faith argument\” that the regulation violated theFourth Amendment.The issues on review, which the partiesaddressed in their briefs and at oral argument before the Commission on November 20, 1990,are:\u00a0 (1) whether the Fourth Amendment applies to section 1904.7(b)(1); (2) if theFourth Amendment applies, whether it is violated by that regulation; and (3) if theregulation does not violate the Fourth Amendment and Monfort is found in violation ofsection 1904.7(b)(1), whether the violation was willful.II. The Fourth Amendment AnalysisWe first consider whether section 1904.7(b)(1)violates the Fourth Amendment because it authorizes employees, former employees, and theirrepresentatives to search (by examination and copying) the requested, applicable OSHA200’s without a warrant or its equivalent.\u00a0 The issue is one of first impression.\u00a0 Because there can be no violation of the Fourth Amendment if it does not apply tothe factual circumstances, we now examine whether the Fourth Amendment applies in thiscase.A. Whether the Search Authorized by theRegulation Is PrivateThe Fourth Amendment protects persons againstonly governmental searches, not private ones.\u00a0 E.g., Skinner v. Railway Labor Executives’Association (\”Skinner v. RLEA\”), 489 U. S. 602, 613-14, 109 S. Ct.1402, 1411 (1989).\u00a0 The first question presented here is whether the searchauthorized by section 1904.7(b)(1) is private or governmental. The regulation authorizesone private party, upon its request, to examine and copy applicable OSHA 200’s belongingto another private party.\u00a0 The Secretary and Pamela Nelson, who was grantedintervenor status in this case, contend on review, as they did before the judge, that theFourth Amendment does not apply to this case because the search here was by a privateindividual, not the government.\u00a0 The judge rejected this argument, noting thatNelson’s right to inspect the OSHA 200’s was created by the government.In Skinner v. RLEA , the Court consideredthe constitutionality of regulations authorizing, but not requiring, railroads toadminister drug tests to employees in particular circumstances.\u00a0 The Court statedthat \”[a]lthough the Fourth Amendment does not apply to a search or seizure, even anarbitrary one, effected by a private party on his own initiative, the Amendment protectsagainst such intrusions if the private party acted as an instrument or agent of theGovernment.\”\u00a0 489 U.S. at 614, 109 S. Ct. at 1411.\u00a0 The Court explainedthat \”the degree of the Government’s participation in the private party’sactivities…[is] a question that can only be resolved ‘in light of all thecircumstances’\” (citations omitted).\u00a0 489 U.S. at 614, 109 S. Ct. at 1411.The Secretary asserts that an individual who hasconducted a search is not an agent of the government so long as the search was notconducted in collusion with or at the behest of government officials, citing, among othercases, United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656(1984).\u00a0 The Secretary contends that Nelson requested the OSHA 200’s on her own,without the participation or knowledge of any government official.\u00a0 The Secretarysubmits that OSHA has no reason to act in collusion with employees who request OSHA 200’s,because it has access to the same records under a separate regulation.\u00a0 See note 5 infra.\u00a0She contends that a search by individuals may retain its private status even thoughsupported by government action.\u00a0 The Secretary relies on cases in which the SupremeCourt found that employers committed unfair labor practices by failing to disclose to theunions representing their employees information relevant to the collective bargainingprocess. \u00a0 E.g., National Labor Relations Board v. Acme Industrial Co.,385 U.S. 432, 435-36, 87 S.Ct. 565, 568 (1967).We find no merit in the Secretary’s argumentsthat the search was private.\u00a0 In finding that the drug tests at issue were notprivate searches, the Court in Skinner v. RLEA relied on language in the preambleto the final regulations stating that authority to test was \”conferred for thepurpose of promoting the public safety\” and that the recipient of this authoritycannot in any way divest itself of, or compromise, its authority by contract.\u00a0 489U.S. at 615, 109 S.Ct. at 1411-12.\u00a0 The language of section 1904.7(b)(1) requiringthe employer to make the OSHA 200’s available has a similar purpose.\u00a0 It is intendedto promote the safety and health of employees in the workplace by informing them of jobhazards.\u00a0 The regulation also furthers the purposes Congress had in enacting theOccupational Safety and Health Act, of assuring \”so far as possible every working manand woman in the Nation safe and healthful working conditions,\” and \”providingmedical criteria which will assure insofar as practicable that no employee will sufferdiminished health\” due to the employee’s job.\u00a0 Sections 2(b) and 2(b)(7) of theAct, 29 U.S.C. ?? 651(b) and (b)(7).The Secretary referred to this policy ofinforming employees of job hazards several times in the preamble to the final version ofsection 1904.7(b)(1).\u00a0 She emphasized \”the employee’s basic right to know aboutworkplace hazards,\” and, in a very similar vein to the preamble language quoted bythe Court in Skinner v. RLEA, she noted that the authority to search granted by theregulation cannot be bargained away.\u00a0 43 Fed. Reg. 31,324, 31,325, 31,327 (1978).\u00a0 The Secretary also stated that by promulgating section 1904.7(b)(1), she wasperforming the role that Congress set forth for her in the Act.[[3\/]]\u00a0 43 Fed. Reg.at 31,327.The cases cited by the Secretary involving thefailure of employers to disclose information in violation of the NLRA do not raise FourthAmendment concerns.\u00a0 They are expressly based on the \”give and take\” of thecollective bargaining process, which is not involved here.\u00a0 See National LaborRelations Board v. Holyoke Water Power Co., 778 F.2d 49, 52 (1st Cir. 1985) (lessweight due employer’s rights when employer subject to duty to bargain).\u00a0 Therefore,we conclude that they provide no support for the Secretary’s claim that the search was aprivate one.The Secretary also relies on a number of federalregulations that require employers to disclose information to private individuals withoutany warrant requirement, including 15 U.S.C. ? 1681g (credit reporting agency mustdisclose to consumer his or her own credit history upon request, enforced by Federal TradeCommission and other agencies), 42 U.S.C. ? 11044 (disclosure to public [through state orlocal authorities] of emergency response plans, material safety data sheets, and otherdocuments that companies have filed, as required, enforced by Environmental ProtectionAgency), and OSHA’s own hazard communication standard at 29 C.F.R. ? 1910.1200.\u00a0 TheSecretary cites no authority indicating that those regulations have been upheld as privatesearches against Fourth Amendment challenges.\u00a0 If the Secretary is suggesting thatadverse implications for other statutory schemes would result if the Fourth Amendment isfound to apply here, such a suggestion is irrelevant.\u00a0 In Marshall v. Barlow’s,Inc., 436 U.S. 307, 321-22, 98 S.Ct. 1816, 1825 (1978), the Secretary argued beforethe Court that requiring a warrant for OSHA inspectors would mean that warrantless searchprovisions in other regulatory statutes would also be constitutionally infirm.\u00a0 TheCourt rejected that argument, stating that ”[t]he reasonableness of a warrantless search. . . will depend upon the specific enforcement needs and privacy guarantees of eachstatute.\”\u00a0 Id.Based on the considerations above, we concludethat the search authorized by the regulation is governmental and that further inquiry intothe applicability of the Fourth Amendment is therefore necessary.B. Whether the Reasonable ReportingRequirement Exception Applies The Secretary also contends that the regulationfalls within the reasonable reporting requirement exception to the Fourth Amendment’swarrant requirement, citing California Bankers Association v. Shultz, 416 U.S. 21,57-67, 94 S.Ct. 1494, 1515-20 (1974).\u00a0 That exception permits the government tocompel disclosure of business records through mandatory reporting requirements.\u00a0 In CaliforniaBankers, the court specifically noted that the exception only arises when thereporting is to the government.\u00a0 Section 1904.7(b)(1) requires disclosure ofinformation to a private individual, more specifically, an employee, former employee, ortheir representative, not to the government.\u00a0 Therefore, the reasonable reportingrequirement exception does not apply here.[[4\/]] C. Whether There Was a Reasonable Expectation of PrivacyWe next consider whether Monfort had areasonable expectation of privacy in the OSHA 200’s.\u00a0 The Supreme Court has declaredthat, for Fourth Amendment purposes, \”[a] search occurs when ‘an expectation ofprivacy that society is prepared to consider reasonable is infringed.’\u00a0 \”Marylandv. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782 (1985) (quoting United States v.Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656 (1984)).\u00a0 Therefore, beforeconsidering whether a search violates the Fourth Amendment, it is necessary to determinewhether the \”subjective expectation of privacy\” that an individual may claim inthe object of the search is one that \”society accepts as objectivelyreasonable.\”\u00a0 California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625,1628 (1988) (no reasonable expectation of privacy in contents of opaque garbage bags atstreet– \”common knowledge\” that such bags readily accessible to the public).Monfort contends that it has a reasonableexpectation of privacy in its OSHA 200’s, which two courts and the Commission recognizedin Taft Broadcasting Co., Kings Island Division (\”Kings Island\”),13 BNA OSHC 1137, 1141, 1986-87 CCH OSHD ? 27,861, p. 36,486 (No. 82-1016, 1987), aff’d,849 F.2d 990 (6th Cir. 1988); Emerson Electric Co., 13 BNA OSHC at 1172 n. 1, 1986-87 CCHOSHD ? 27, 864, p. 36, 493 n. 1, aff’d, 834 F. 2d 994 (11th Cir. 1987) ; and A.B.Chance Co., 13 BNA OSHC 1172, 1986-87 CCH OSHD ? 27,863, p. 36,492 (No. 85-519,1987), rev’d, 842 F.2d 724 (4th Cir. 1988).The Secretary contends that Monfort has noreasonable expectation of privacy in its OSHA 200’s.\u00a0 She urges the Commission tooverrule its decisions in Kings Island, Emerson Electric, and A. B.Chance, and to follow the Fourth Circuit’s decision in McLaughlin v. A.B. Chance Co.842 F.2d 724, 727 (4th Cir. 1988), where the court found that the employer has a\”diminished expectation of privacy [in its OSHA 200’s] to the extent of theregulatory intrusion,\” because the OSHA 200’s are records that are required to bekept and are subject to inspection.1. Kings Island DistinguishableThe decisions upon which Monfort relies, KingsIsland, Emerson Electric, and A.B. Chance, are distinguishable from thiscase in two important respects: the degree of the intrusion; and the party seeking therecords.\u00a0 In Kings Island and its progeny, a different regulation, 29 C.F.R.? 1904.7(a),[[5\/]] was at issue.\u00a0 That regulation requires an employer to provideaccess to its OSHA No. 101 forms (\”OSHA 101’s\”), as well as to its OSHA200’s.\u00a0 This access must be provided to any authorized representative of theSecretary.The additional requirement of disclosure of OSHA101’s is significant when that form is compared with the OSHA 200’s.\u00a0 The OSHA 200 isone sheet of paper, with lines for entries on one side, and instructions on the back.\u00a0 The side for entries is divided almost in half.\u00a0 For each occupational death,nonfatal occupational illness, and nonfatal occupational injury,[[6\/]] the employer isrequired to provide on the left side of the page the employee’s name, job title or briefdescription of duties, department, and brief description of injury or illness.\u00a0 Thereis enough space for 18 separate injuries or illnesses.\u00a0 On the right side of thatpage, which must be posted by February 1 and remain in place until March 1 of each year,the employer places checks and numbers in the appropriate boxes to indicate the extent andoutcome of injuries, as well as the type, extent, and outcome of illnesses.The OSHA 101, entitled \”SupplementaryRecord of Occupational Injuries and Illnesses,\” also consists of one sheet of paperwith lines for entries on the front side and instructions on the back.\u00a0 However, asthe Commission noted in Kings Island, 13 BNA OSHC at 1141, 1986-87 CCH OSHD at p.36,485, the OSHA 101 is much more detailed than the OSHA 200, with each page (rather thaneach line, as on the OSHA 200) devoted to a single incident of injury or illness. The OSHA101 requires employers to report much more information on the affected employee, such asthe Social Security number, home address, and age.\u00a0 The more probing nature of thequestions on the OSHA 101 is also shown in the questions that the Commission quotes atlength in Kings Island, 13 BNA OSHC at 1141, 1986-87 CCH OSHD at pp. 36,485-86:12. What was the employee doing when injured?(Be specific.\u00a0 If he was using tools or equipment or handling material, name them andtell what he was doing with them.)13. How did the accident occur?\u00a0 (Describefully the events….Name any objects or substances involved….Give full details on allfactors which led or contributed to the accident….)14. Describe the injury or illness in detail….15. Name the object or substance which directlyinjured the employee….The employer is also asked to provide the nameand address of the physician and, if the employee was hospitalized, the name and addressof the hospital.Section 1904.7(a), the regulation involved in KingsIsland, directs that the records have to be disclosed to an agent of the government.\u00a0 It does not impose any restrictions on the requesting compliance officer’sinspection and copying of the specified records other than that any inspection and copyingmust be done \”for the purpose of carrying out the provisions of the [A]ct.\”\u00a0 The Commission concluded that this language gave compliance officers \” ‘almostunbridled discretion’ \” to determine who and when to search.\u00a0 13 BNA OSHC at1145-46, 1986-87 CCH OSHD at 36,490.Here, the requesting parties are privateindividuals: employees, former employees, or their representatives.\u00a0 Under section1904.7(b)(1), they are entitled to request the OSHA 200’s only \”for any establishmentin which the employee is or has been employed,\” and then only for up to the past fiveyears.\u00a0 See 29 C.F.R. ? 1904.6.\u00a0 They do not have the open-ended discretionafforded the government representatives under section 1904.7(a).\u00a0 Section1904.7(b)(1) also puts less of a burden on the employer, who is not required to producethe records immediately, as required by section 1904.7(a), but need only disclose them atreasonable times and in a reasonable manner.We conclude that the OSHA 101, rather than theOSHA 200, constituted the basis for the Commission’s statement in Kings Island that\”[i]njury records maintained in accordance with OSHA regulations contain importantdetails about an employer’s operations and manufacturing processes that even conscientiousexecutives might not freely reveal to outsiders.\”\u00a0 13 BNA OSHC at 1141, 1988 CCHOSHD at p. 36,485.\u00a0 Because the Secretary required the disclosure of OSHA 101’s, aswell as OSHA 200’s, in Kings Island, the intrusion into the employer’sprivacy interests in that case was far greater than the minimal intrusion here. 2. Posting RequirementThere is also little doubt that when an employerposts each annual summary of occupational injuries and illnesses from the OSHA200’s[[7\/]], whatever expectation of privacy the employer had in its OSHA 200’s isconsiderably diminished. \”There can be little expectation of privacy in informationthat is available to anyone observing the employer’s bulletin board.\”\u00a0 McLaughlinv. A.B. Chance Co., 842 F.2d at 728.In addition to observing the posted annualsummary, employees presumably would have observed in the workplace at least some of theoccurrences that led to the injuries and illnesses that are the subject of the postedsummary, and that are listed on the unposted left side of the OSHA 200.\u00a0 As the Courtstated in Marshall v. Barlow’s, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 1821(1978), \”[w]hat [employees] observe in their daily functions is undoubtedly beyondthe employer’s reasonable expectation of privacy.\”\u00a0 There is also no reason toconclude that an employer’s privacy expectation in its OSHA 200’s is greater when anemployee, former employee, or their representative requests them, than it is when theannual summary is posted.\u00a0 See McLaughlin v. A.B. Chance, 842 F.2d at 728.\u00a0 Even though there is a difference between the information on the summary part ofthe OSHA 200 and that contained on its unposted part, the information in both parts isminimal.We therefore conclude that Monfort has noreasonable expectation of privacy in its OSHA 200’s when access is sought under section1904.7(b)(1). \u00a0 Because a reasonable expectation of privacy must be present in orderto invoke the protections of the Fourth Amendment, it is clear that the Fourth Amendmentdoes not apply to the search authorized by section 1904.7(b)(1).\u00a0 As we noted at thebeginning of this discussion, there can be no violation of the Fourth Amendment if it doesnot apply to the factual circumstances.\u00a0 Accordingly, we find that section1904.7(b)(1) does not violate the Fourth Amendment by authorizing former employees to haveaccess to OSHA 200’s without a warrant or subpoena.As noted above, Monfort does not dispute that itfailed to comply with the terms of the cited regulation in denying Nelson’s request.\u00a0Therefore, we find that Monfort’s failure to make its OSHA 200’s available to Nelsonwas a violation of section 1904.7(b)(1).III. Willfulness of the ViolationA willful violation is one committed withintentional, knowing, or voluntary disregard for the requirements of the Act, includingthe regulations promulgated thereunder, or with plain indifference to employeesafety.\u00a0 E.g., Calang Corp., 14 BNA OSHC 1789, 1791, 1990 CCH OSHD ? 29,080,p. 38,870 (No. 85-319, 1990). \u00a0 In order to show intentional disregard of aregulation, there must be evidence that the employer knew of an applicable regulationprohibiting the condition and that it consciously disregarded it.\u00a0 E.g., WilliamsEnterprises, Inc., 13 BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD ? 27,893, p. 36,589(No. 85-355, 1987).\u00a0 However, a violation is not willful if the employer shows thatit had a good faith opinion that the cited condition did not violate the regulation.\u00a0Mel Jarvis Construction Co., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD ? 25,713, p.32,060 (No. 77-2100, 1981).\u00a0 To determine whether an employer held such a good faithopinion, the Commission has considered whether the employer’s belief concerning a factualmatter or the interpretation of a regulation was reasonable under the circumstances.\u00a0Id.In this case, it is undisputed that Monfort knewof the requirements of section 1904.7(b)(1) when it violated the regulation by failing tomake the OSHA 200’s available to Nelson upon request.\u00a0 Bruce Holton, Monfort’spersonnel manager, who initially received Nelson’s request, testified that he readNelson’s request, which specifically states that the request is made pursuant to \”29CFR 1904.7.\” \u00a0 Holton stated that he knew that the OSHA regulations grantingemployees access to their \”health files\” were contained in \”29CFR.\”\u00a0 It is also clear from the record that Monfort consciously disregarded theregulation at the outset. \u00a0 Holton testified that, after receiving Nelson’s requestthrough the mail and reading it, he denied it, and then forwarded the letter to Monfort’scorporate office, which told him that any further correspondence would be handled bycounsel.Monfort argues in its defense that it had a goodfaith opinion that the request was invalid.\u00a0 Monfort’s personnel manager Holtontestified that when he denied the request at the outset, he \”felt at the time that itwas a union request. \” In response to the OSHA Area Director’s notice to Monfort ofNelson’s complaint, Monfort (through its counsel) reiterated that \”unionrequest\” argument in its first letter of March 30, 1987, to the Area Director. \u00a0In its second letter to the Area Director, dated April 29, 1987, Monfort presented a legalbasis for that argument, asserting that providing the OSHA 200’s to Nelson would violatesection 8(a)(2) of the National Labor Relations Act,[[8\/]] which prohibits giving unlawfulassistance to unions.[[9\/]]\u00a0 It was not until this second letter to the Area Directorthat Monfort for the first time raised the argument that section 1904.7(b)(1) violated itsprivacy interest in its OSHA 200’s, citing the Commission’s then-recent decision in KingsIsland for the proposition that this privacy interest is protected under the FourthAmendment.\u00a0 Monfort presented both its NLRA and Kings Island contentionsbefore the judge.Judge Mullins stated that the Commission\”has held under almost identical facts that this type [of] violation is properlyclassified as [w]illful,\” citing RSR Corp., 11 BNA OSHC 1163, 1983-84 CCH OSHD? 26,429 (No. 79-3813, 1983), aff’d, 764 F.2d 355 (5th Cir. 1985).\u00a0 He didnot address Monfort’s arguments against willfulness.\u00a0 However, in finding that theproposed penalty was excessive, he did rely on what he called Monfort’s \”good faithargument\” that the cited regulation violated its constitutionally protected right toprivacy in its OSHA 200’s.Monfort submits that the judge erred in findingthe violation to be willful, because it acted in good faith on the advice of its counselin not providing the OSHA 200’s.\u00a0 Monfort claims that it believed that:\u00a0 itwould violate section 8(a)(2) of the NLRA if it provided the OSHA 200’s; and theregulation authorizing Nelson’s access request violated its expectation of privacy in therecords. \u00a0 It asserts that it relied on the Commission’s recognition in KingsIsland that such records were protected by the Fourth Amendment.\u00a0 Monfort alsocontends that the judge was incorrect in concluding that the facts in RSR Corp.were similar to the facts here.The Secretary argues that the judge correctlyfound the violation to be willful.\u00a0 She asserts that the good faith defense towillfulness articulated by the Commission in Mel Jarvis is limited to beliefsconcerning factual matters and interpretations of OSHA requirements, and does not extendto the constitutionality of a regulation.\u00a0 However, the Secretary cites no case lawin support of this claim, and we find no merit in the argument.The willfulness charge relates to the employer’sunderlying state of mind when it committed the violation.\u00a0 See General Motors Corp.,Electro-Motive Division, OSHRC Docket Nos. 82-630, 84-781, and 84-816 (February 15,1991), slip op. at p. 15.\u00a0 In this case, we must consider whether Monfort had areasonable, good faith belief in mind when it refused to turn over the OSHA 200’s toNelson.Monfort’s initial reason for refusing Nelson’sJanuary 1987 request for records was that the request was invalid because it was a\”union request.\”\u00a0 Based on the facts and the plain meaning of theregulation, that belief asserted by Monfort was unreasonable.\u00a0 According to the plainlanguage of the regulation, employers must provide the OSHA 200 logs to any formeremployee, a category that clearly included Nelson.\u00a0 Moreover, Nelson presentedunrebutted testimony that she wanted the OSHA 200’s for a purpose recognized in thepreamble to section 1904.7(b)(1)–to find out more about the injury that she experiencedwhile working in Monfort’s Grand Island facility.\u00a0 She also testified that she wasnot involved in organizational activities at the Grand Island plant during the time inquestion.\u00a0 We therefore conclude that Monfort’s purported belief that it was denyingan impermissible \”union request\” was unreasonable, based on the facts.Moreover, Monfort’s assertion that it wouldviolate section 8(a)(2) of the NLRA if it provided the OSHA 200’s is unreasonable based onthe law.\u00a0 Monfort cites no cases in support of its claim that the NLRA would beviolated. Indeed, relevant federal labor law precedent cuts against Monfort’sargument.\u00a0 For example, in Louisiana Chemical Association v. Bingham, 550 F.Supp. 1136 (E. D. La. 1982), aff’d, 731 F.2d 280 (5th Cir. 1984), the OSHA record accessrule was challenged as invalid because the subject of the rule was under the exclusivejurisdiction of the National Labor Relations Board.\u00a0 The court stated that\”[s]uch an argument simply reaches too far.\”\u00a0 550 F.Supp. at 1144.\u00a0According to the court, if that argument were \”pressed to the extreme, all OSHAfunctions could be subsumed into the jurisdiction of the NLRB.\”\u00a0 Id.\u00a0 Thecourt concluded that, whatever effect the OSHA rule might have on the NLRA, the resultwould be \”simply incidental to fulfilling the statutory goal of promoting healthfulworking conditions.\” Id. at 1145.\u00a0 See United Steelworkers of America v.Marshall, 647 F.2d 1189, 1236 (D.C. Cir. 1980), cert. denied, 453 U.S. 913(1981) (medical removal protection portion of OSHA’s lead standard not in conflict withfederal labor-management law, even though such protection can be subject of collectivebargaining).\u00a0 Thus, Monfort’s reliance on the NLRA argument was not reasonable basedon the law.Monfort also relies on its \”belief\” that the regulation violated its FourthAmendment privacy interest in its OSHA 200’s. However, Monfort first raised this claim inits April 29, 1987, letter to the OSHA Area Director, more than two months after itrefused to comply with Nelson’s request.[[10\/]]\u00a0 As noted above, willfulness is basedon an employer’s state of mind when it committed the violation.\u00a0 Here, that was whenMonfort denied Nelson’s request.The evidence suggests that Monfort’s reasonableexpectation of privacy argument was an afterthought.\u00a0 In a \”Memorandum\”authored by Holton, dated March 18, 1987, the same day the Commission’s Kings Islanddecision was issued, he identified the requestor of the records as \”a representativeof the United Food and Commercial Workers Union, who was formerly employed byMonfort.\”\u00a0 The memorandum gave no reason for denying the records, but onlystated that the request was denied on the advice of counsel.\u00a0 There was no referencein the memorandum to the right of privacy or the Fourth Amendment.We reject Monfort’s argument that the judgeerred in relying on RSR Corp., in which the Commission found that a violation ofsection 1904.7(b)(1) was willful, and the Fifth Circuit affirmed that determination.\u00a0In RSR Corp., the employer defended against the allegation of willfulness based onan unsupported claim that access to (the left, nonsummary, side of) the OSHA 200’s wasgoverned by discovery proceedings under the Federal Rules of Civil Procedure, rather thanby section 1904.7, because the requesting employee was acting in furtherance of a privatelawsuit. \u00a0 764 F.2d at 367 (5th Cir.); 11 BNA OSHC at 1178, 1983-84 CCH OSHD at p.35,556 (Commission). Moreover, after it knew that the private lawsuit had been dismissed,RSR Corp. persisted in denying access to the records.\u00a0 764 F. 2d at 367 (5th Cir.);11 BNA OSHC at 1179, 1983-84 CCH OSHD at p. 35,556 (Commission).\u00a0 The Fifth Circuitand the Commission considered those elements to negate any good faith defense, and,instead, found them to be determinative of willfulness.Here, Monfort makes unsupported claims thatNelson’s request was invalid because it was a \”union request\” and providing theOSHA 200’s would mean violating the NLRA.\u00a0 Furthermore, even after Nelson gaveunrebutted testimony that she needed the records for her own health concerns, Monfortstill did not give her access to the records.\u00a0 In light of these similarities, weagree with the judge that RSR Corp. is applicable here.Based on the factors above, we conclude thatMonfort intentionally disregarded the regulation and did not act on a good faith belief,reasonably held, that its refusal to produce the records conformed to law. Therefore, wefind that Monfort’s violation of section 1904.7(b)(1) was willful.In her motion for leave to supplement the record, the intervenor seeks inclusion of adocument in the record, which she contends demonstrates that Monfort’s refusal to complywith the regulation was not based on what Monfort claims was consistently demonstratedgood faith.\u00a0 In Chesapeake Operating Co., 10 BNA OSHC 1791, 1792, 1982 CCHOSHD ? 26,142, p. 32,915 (No. 78-1353, 1982), the Commission discussed the factorsinvolved in considering motions to reopen the record, particularly noting that\” ‘thetime when the motion is made, the character of the additional testimony, and the effect ofgranting the motion are pertinent factors for consideration’ \”\u00a0 (quoting 6A Moore’sFederal Practice ? 59.04[13] (1979)).\u00a0 In light of these factors, especially theeleventh-hour filing of the motion and our decision herein, concluding on the basis of theexisting record that the violation was willful, we deny the intervenor’s motion.IV. PenaltyIn determining an appropriate penalty, inaccordance with section 17(j) of the Act, 29 U.S.C. ? 666(j), we must consider the sizeof the employer, the gravity of the violation, the good faith of the employer, and thehistory of previous violations.\u00a0 We have considered all of these factors.\u00a0 Weparticularly note that what is most important in this case is that the purpose of theregulation, to assure that the employer provide the requested information to its formeremployee, be accomplished. \u00a0 Based on these factors, we assess, as the judge did, apenalty of $100 for the willful violation of section 1904.7(b)(1).V. OrderWe conclude that Monfort has no reasonableexpectation of privacy in the OSHA 200’s that it is required to provide under section1904.7(b)(1) to employees, former employees, or their representatives.\u00a0 Therefore,the Fourth Amendment does not apply and is not violated by section 1904.7(b)(1).\u00a0Finally, we find that Monfort violated section 1904.7(b)(1) and that its violation waswillful. \u00a0 We assess a penalty of $100.Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. WisemanCommissionerDated: February 26, 1991SECRETARY OF LABOR, Complainant, v. MONFORT OF COLORADO, INC., Respondent.OSHRC DOCKET No. 87-1220APPEARANCES:For the Complainant:H. Alice Jacks, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City,Missouri For the Respondent:William H. Bruckner, Esq., Bruckner & Sykes, Houston, TexasFor Limited Intervenor Pamela Nelson:Peggy A. Hillman, Esq., Chicago, Illinois andCarol L. Clifford, Esq., United Food & Commercial Workers international Union,AFL-CIO, Washington, D.C.DECISION AND ORDERMullins, Judge:This proceeding was brought before the Occupational Safety and Health Review Commission(Commission) pursuant to ?10 of the Occupational Safety Act of 1970, 29 U.S.C ?661 etseq. (\” the Act\”).\u00a0 The Secretary of Labor (complainant) issued acitation to Monfort of Colorado Inc., (respondent) alleging a \”willful\”violation of 29 C.F.R. ?1904.7(b)(1) which provides: The log and summary of all recordableoccupational injuries and illnesses (OSHA No. 200) (the log) provided for in ?1904.2shall, upon request, be made available by he employer to any employee, former employee,and to their representatives for examination and copying in a reasonable manner and atreasonable times.\u00a0 The employee, former employee, and their representatives shallhave access to the log for any establishment in which the employee is or has beenemployed.The complainant seeks a penalty of $10,000.00.For the reasons stated below, the undersignedfinds a Willful violation of the cited standard and assesses a penalty of $100.00.Discussion FactsThe facts of this case are undisputed.\u00a0 Ms.Pamela Nelson, was employed by respondent at its Grand Island, Nebraska plant forapproximately 4 1\/2 years up to March of 1986.\u00a0 In April of 1986 Ms. Nelson becameemployed fulltime by the United Food and Commercial Workers union (UFCW), an affiliate ofthe AFL-CIO. \u00a0 This union does not represent the employees of respondent although itapparently has made attempts to do so. (Tr. 108)On January 31, 1987, Ms. Nelson requested ofrespondent that she be furnished copies of respondent’s OSHA 200 Logs (Log and Summary ofrecordable occupational injuries and illnesses) for the calendar years 1982, 1983, 1984,1985 and 1986.\u00a0 Mrs. Nelson testified that the request was made using a samplerequest letter she had obtained at a union seminar in July of 1986 (Tr. 82) and that shemade the request in an attempt to obtain more information about other employees who mighthave sustained an injury that Ms. Nelson was having personal problems with (back and neckinjury). \u00a0 (Tr. 88-89) Mr. Bruce Holton, Monfort’s Personnel Director, testified thathe received and denied the request because he thought it was a union request and was lateradvised by the corporate office that any further correspondence would be handled bycounsel.\u00a0 (Tr. 107)Ms. Nelson has been represented throughout theseproceedings by the Assistant General Counsel for the UFCW.\u00a0 Ms. Nelson, through theAssistant General Counsel of the UFCW, sought party status on March 22, 1988.\u00a0 (Thehearing was scheduled and conducted on April 7, 1988).\u00a0 On March 25, 1988, theundersigned denied the request because Ms. Nelson was not an employee.\u00a0 On March 28,1988, eight days prior to trial, Ms. Nelson filed a Petition to Intervene. This petitionwas granted for the limited purpose of allowing Ms. Nelson to file a post-trial brief andshe has done so.Issues The respondent has raised four issues pertainingto the validity of the citation.1) Whether 29 C.F.R. ? 1904.7(b)(1), requiring Monfort to produce OSHA 200 Logs to aformer employee, violates Monfort’s right of privacy.2) Whether 29 C.F.R. ?1904.7(b)(1), requiringMonfort to produce OSHA 200 Logs to a former employee, violates the fourth amendment byallowing greater intrusion into privacy rights by an individual than by a governmentagency.3) Whether requiring Monfort to produce OSHA 200Logs to a former employee presently a full time union organizer, is an unfair laborpractice violating the National Labor Relations Act ?8(a)(2), as amended (29 U.S.C.?158(a)(2)) (the NLRA).4) Whether the proposed penalty of $10,000.00 isexcessive.The first two issues raised may be easilydisposed of.\u00a0 At the administrative trial level there is no authority to consider andrule on constitutional issues as raised here.\u00a0 Buckeye Industries, Inc. v.Secretary of Labor 587 F.2d 231 (1979). Under these arguments, to sustain the positionof the respondent would require the undersigned to declare the cited regulation, 29 C.F.R.?1904(b)(1) unconstitutional for which there is no authority.\u00a0 However, thesearguments will be considered under respondent’s fourth argument concerning severity of theproposed fine.The third argument raised by respondent isrespondent’s belief that turning the OSHA 200 Logs to Ms. Nelson, a current organizer forthe UFCW, would constitute an unfair labor practice prohibited by the National LaborRelations Act ?8(a)(2), as amended (29 U.S.C. ?158(a)(2) (The NRA).\u00a0 In support ofthis argument the respondent attached to its brief an NLRB decision wherein the respondentwas found in violation of the above cited section.\u00a0 Also attached was the 9thCircuit’s decision affirming that decision.\u00a0 (Industrial Technical andProfessional Employees Division, National Maritime Union of America, AFL-CIO, Petitioner,and Monfort of Colorado, Inc., Petitioner v. National Labor Relations Board,Respondent, United Food and Commercial Workers Union, AFL-CIO, Intervenor.\u00a0683 F.2d 305 (1982))The basic ruling in this case was that therespondent had committed an unfair labor practice by giving unlawful assistance andsupport to the union. \u00a0 (emphasis added)\u00a0 It is clear under the facts of theinstant case that even if the purpose for seeking the logs was to assist the union, thedelivery by the respondent is mandated by OSHA regulation and in no way could be construedas unlawful.\u00a0 This argument is without merit.Respondent’s fourth argument is that theproposed penalty of $10,000.00 is too severe.\u00a0 The respondent has not raised anyarguments concerning the classification of this violation.\u00a0 A review Commission casehas held under almost identical facts that this type violation is properly classified asWillful.\u00a0 (RSR Corporation v. Brock 765 F.2d 355 (5th Cir. 1985), 11 BNA OSHC1163 (No. 79-3813, 80-1602, 79-6392 and 79-5062, 1983)\u00a0 In addressing the severity ofthe proposed penalty, consideration must be given to respondent’s arguments concerning theconstitutionality of the cited Section 29 C.F.R. ?1904.7(b)(1).\u00a0 If there was a goodfaith belief on the part of the respondents in this constitutional argument, then theproposed penalty of $10,000.00 is obviously too severe.Two recent Federal Circuit court cases affirmingthe Review Commission have held that 29 C.F.R. ?1904.7(a ) is in violation of the fourthamendment prohibition against unreasonable searches and seizures (Brock v. EmersonElectric Co., Electronic and Space Div., 834 F.2d 994 (11th Cir., 1987) 13 BNAOSHC 1171 (No . 84-985, 1987); and McLaughlin v. Kings Island, Division of Taft BroadcastingCo. __F.2d__ (6th Cir., June 6, 1988) 13 BNA OSHC 1137 (No. 82-1016, 1987).\u00a0Although these cases dealt with a different subsection than the instant case, both casesemphasized that the respondent (employer) has a constitutionally recognized right toprivacy in the OSHA 200 Logs.The complainant argues that any constitutionalrights that the respondent has would not be applicable to a private individual (Ms.Nelson) and in support cites Bordeau v. McDowell, 41 S.Ct. 574 (1921).\u00a0 The Bordeaucase is easily distinguishable in that it dealt with an unlawful taking by a privateindividual.\u00a0 In the instant case, even though she is a private individual, Ms.Nelson’s right to inspect the OSHA 200 Log is one created by the government and thereforewould constitute a government sanctioned invasion of this right of privacy.As indicated previously the undersigned has noauthority to rule on the constitutional validity of the cited section, but under the EmersonElectric and Kings Island decisions (supra) it is clear that therespondent has a good faith argument concerning this constitutional validity and thereforethe proposed penalty of $10,000.00 is too severe.\u00a0 A penalty of $100.00 will beimposed.Findings of Fact and Conclusions of LawAll Findings of Fact and Conclusions of Lawnecessary to a determination of the contested issues are contained in the opinionabove.\u00a0 See Rule 52(a) of the Federal Rules of Civil Procedure.\u00a0 Any proposedfindings of fact or conclusions of law that are inconsistent with this decision aredenied.ORDER The citation is affirmed and a penalty of$100.00 is assessed.SO ORDERED.William R. Mullins Judge, OSHRCDated: August 10, 1988FOOTNOTES: [[1\/]] The regulation provides:The log and summary of all recordableoccupational injuries and illnesses (OSHA No. 200) (the log) provided for in ? 1904.2shall, upon request, be made available by the employer to any employee, former employee,and to their representatives for examination and copying in a reasonable manner and atreasonable times.\u00a0 The employee, former employee, and their representatives shallhave access to the log for any establishment in which the employee is or has beenemployed.[[2\/]] Judge Mullins mistook the language in BuckeyeIndustries, Inc. v. Secretary, which concerned the Commission’s lack of authority todetermine the constitutionality of a statute, and applied that language in rulingon a constitutional challenge to a regulation.\u00a0 The Commission’s authority torule on the constitutionality of a regulation is well-established. E.g., TaftBroadcasting Co., Kings Island Division, 13 BNA OSHC 1137, 1146, 1986-87 CCHOSHD ? 27,861, p. 36,490 (No. 82-1016, 1987), aff’d, 849 F. 2d 990 (6th Cir.1988).[[3\/]] See, e.g., section 8(c)(1) of theAct, 29 U.S.C. ? 657(c)(1) (Secretary shall issue regulations requiring that employers,by posting notices or other means, keep their employees informed of their protections andobligations under the Act); section 8(c)(3) of the Act, 29 U.S.C. ? 657(c)(3) (Secretaryshall issue regulations requiring employers to maintain accurate records of employeeexposures to potentially toxic materials or harmful physical agents, when monitoring ormeasuring of such exposures is required under the Act, and Secretary shall provideemployees an opportunity to observe such monitoring and access to such records).[[4\/]] See also Taft Broadcasting Co., KingsIsland Division, 13 BNA OSHC at 1145, 1986-87 CCH OSHD at p. 36, 489, aff’d 849 F. 2dat 995 (6th Cir. 1988) (reasonable reporting requirement exception not applicable evenwhere reporting was to government because of unbridled discretion of compliance officersunder the challenged regulation).[[5\/]] Section 1904.7 (a) provides:Each employer shall provide, upon request,records provided for in ?? 1904.2, 1904.4, and 1904.5 [OSHA Forms 200 (and annualsummary) and 101], for inspection and copying by any representative of the Secretary ofLabor for the purpose of carrying out the provisions of the [A]ct….[[6\/]] Only such injuries that involve loss ofconsciousness, restriction of work or motion, transfer to another job, or medicaltreatment (other than first aid) need be included.[[7\/]] Section 1904.5(a) provides:Each employer shall post an annual summary ofoccupational injuries and illnesses for each establishment.\u00a0 This summary shallconsist of a copy of the year’s totals from the form OSHA No. 200 . . . . A form OSHA No.200 shall be used in presenting the summary. . . .The regulation at 29 C.F.R. ? 1904.5(d)(1)requires that \”[t]he summary covering the previous calendar year shall be posted nolater than February 1, and shall remain in place until March 1.\”[[8\/]] Section 8(a)(2) of the NLRA, 29 U.S.C. ?158(a)(2), provides:(a)It shall be an unfair labor practice for anemployer–(2) to dominate or interfere with the formation or administration of any labororganization or contribute financial or other support to it….[[9\/]] Monfort introduced into evidence copiesof a decision of the National Labor Relations Board in Monfort of Colorado, Inc.,256 NLRB 612 (1981), as well as a decision of the United States Court of Appeals for theNinth Circuit affirming the Board in Industrial, Technical and Professional EmployeesDivision, National Maritime Union of America,\u00a0 AFL-CIO v. National Labor RelationsBoard, 683 F.2d 305 (9th Cir. 1982).\u00a0 In those decisions, the Board and the courtfound Monfort in violation of section 8(a)(2) (as well as section 8(a)(1) ) of the NLRAfor providing unlawful assistance and support to a union that waged an organizing campaignin opposition to the union that employed Nelson at the time of her request.[[10\/]] We recognize that the Commission’sdecisions in Kings Island, Emerson, and A.B. Chance had not yet beenissued when Monfort first denied Nelson’s request.\u00a0 They were issued on March 18,1987.\u00a0 However, prior to their issuance, it was a matter of public record that thosecases involved Fourth Amendment challenges to section 1904.7(a).\u00a0 In any event, ifMonfort did not believe at the time it denied Nelson’s request that the records wereprotected from disclosure under the Fourth Amendment, then any later-developed belief thatthe Fourth Amendment applied would be irrelevant to the allegation of willfulness.”