“*OSHRC Docket No. 84-0785*SECRETARY OF LABOR,Complainant.v.WYMAN-GORDON COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,LOCAL 2285,Authorized EmployeeRepresentative.DECISIONBefore: FOULKE, ChairmanWISEMAN and MONTOYA, Commissioners.By THE COMMISSION:This case involves regulations at 29 C.F.R. ? 1910.20 (e) (2) thatrequire employers to provide employees and their designatedrepresentatives, upon their request, with access to relevant employeeexposure and medical records, and related analyses.I.__*Background*Wyman-Gordon Company (\”Wyman\”) is a Massachusetts corporation thatmanufactures aircraft parts. At Wyman’s plant in Worcester,Massachusetts, Miklos Hadis and William Emco worked primarily in theForge Department and the Die Shop, respectively, from the early 1950’suntil each retired in 1979. Both men died in July 1980. Their widows,who are the legal representatives of their late husbands’ estates, gavewritten authorization to the law firm of Kehoe, Doyle, Playter, & Novick(\”Kehoe\”) to exercise the rights of access to employee records andanalyses, which they claim are theirs under the records accessregulations at 29 C.F.R. ?11910.20, and thereby to act as their\”designated representative\” within the meaning of 29 C.F.R. ?1910.20(c)(3) and (4), discussed below.Kehoe sent written requests to Wyman for exposure and medical recordsconcerning Hadis and Emco, as well as for analyses using exposure andmedical records. Wyman denied Kehoe’s requests on various grounds, whichare discussed later in this decision.In response to a written complaint filed by Kehoe, a compliance officerfrom the Occupational Safety and Health Administration (\”OSHA\”)conducted an investigation at Wyman’s office. The compliance officer didnot ask to see the records and analyses during the investigation.Instead, he asked that Wyman give the designated representative Kehoeaccess to the records. Wyman refused.OSHA then issued to Wyman one citation consisting of three items, asamended by the complaint, alleging other-than-serious violations of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651.678 (\”theAct\”) based on Wyman’s failure to provide Kehoe with access to therequested records and analyses. No penalty was proposed. Item 1 chargedthat Wyman violated 29 C.F.R. ?1910.20(e)(2)(i). which provided [[1]] asfollows:*?1910.20 Access to employee exposure and medical records.*(e) Access to records–(2) Employee and designated representative access (i) Employee exposurerecords. Each employer shall, upon request, assure the access of eachemployee and designated representative to employee exposure recordsrelevant to the employee.Item 2 asserted that Wyman failed to comply with 29 C.F.R. ?1910.20(e)(2)(ii)(B), which states:(ii) Employee medical records.(B) Each employer shall, upon request, assure the access of eachdesignated representative to the employee medical records of anyemployee who has given the designated representative specific writtenconsent….Item 3 alleged that Wyman was in violation of 29 C.F.R. ?1910.20(e)(2)(iii)(A), which provides:(iii) Analysis using exposure or medical records. (A) Each employershall, upon request, assure the access of each employee and designatedrepresentative to each analysis using exposure or medical recordsconcerning the employee’s working conditions or workplace.After contesting these alleged violations, Wyman sought, through itsmotion to sever, an initial hearing and deposition on severalpreliminary issues concerning the validity of all the citation items,thereby possibly rendering unnecessary any consideration of the issueson the merits of the individual items. At a prehearing conferenceconducted by former Commission Administrative Law Judge David J. Knight,Wyman agreed to withdraw that motion and to permit OSHA to conduct adiscovery inspection of Wyman’s records to identify those records that,according to the Secretary, Wyman would be required to make available toKehoe if Wyman’s arguments on the general issues, as well as itsdefenses on the merits, were to fail. The judge issued a discoveryinspection order that required OSHA to maintain the confidentiality ofthe records.Following the discovery inspection, a second prehearing conference washeld at which Wyman and the Secretary[[2]] agreed on which specificdocuments were at issue and designated them as \”Exhibits.\” To maintainthe confidentiality of these documents, they further agreed that the\”Exhibits\” would not become part of the record. Copies of the \”Exhibits\”were provided to the judge for his convenience, and, in accordance withthe parties’ agreement, they were not admitted into evidence at the hearing.In his decision, issued on February 13, 1987, Judge Knight vacated theentire citation on the basis of his conclusion that OSHA’s investigationwas inadequate under the Act. However, he did make alternative findingson the other issues in the case, including the merits of the allegedviolations.[[3]]Subsequent to the filing of petitions for review by the Secretary andWyman, this case was directed for review on a number of issuesconcerning: the entire citation; item 1 in particular and item 3 inparticular[[4]]. The Commission held oral argument in this case April11, 1991.*II*.*Issues Concerning Entire Citation*We first address the following issues that concern all three items inthe citation: (A) whether the judge erred in concluding that the citedregulations grant rights of access to the legal representatives ofemployees who died prior to the effective date of the regulations, (B)whether the judge erred in raising sua sponte, or on his own, the issueof whether the inspection was insufficient under the Act; and (C)whether the judge erred determining that the cited regulations do notviolate the Fourth Amendment.A. Whether the Legal Representatives Have Rights of AccessThe employee records access regulations became effective on August 21,1980. Hadis and Emco died in July of 1980.According to Wyman, the rights of employees to access under the rule didnot arise until the effective date of the regulations, by which timeHadis and Emco had died and therefore never had any rights of access.Wyman contends that whatever right to access a person who is not anemployee may claim as the employee’s representative derives totally fromthe employee. It maintains that, because Hadis and Emco had no right toaccess, their legal representatives cannot have a right of access to therecords and analyses.Section 1910.20 (e) (2) (i), (ii), and (iii) expressly require employersto provide access where requests are made by an \”employee\” or a\”designated representative.\” Definitions of those terms appear at 29 C.F. R ? 1910.20 (c) (3) and (4) as follows:(3) Designated representative means any individual or organization towhom an employee gives written authorization to exercise a right ofaccess ….(4) Employee means a current employee, [or] a former employee …. Inthe case of a deceased or legally incapacitated employee, the employee’slegal representative may directly exercise all the employee’s rightsunder this section.In his decision, the judge rejected Wyman’s interpretation of the ruleand noted that the exact words of the regulation specifically grant tothe legal representatives of deceased employees the right to actindependently to \”directly exercise all of the employee’s rights.\”Thus, in effect the judge read these words as empowering the legalrepresentative exercise all of the rights that the deceased employeewould have been able to exercise if the employee were still alive. Thejudge further reasoned that, because the definition of \”employee\” insection 1910.20 (c)(4) specifically addresses the rights of a personacting in the capacity of a legal representative, the regulation makesclear that the legal representative’s right is not derivative andtherefore not dependent on an employee surviving the effective date ofthe regulations. The judge noted that this interpretation serves animportant purpose of the regulation, because, as the preamble to section1910.20 provided:[t]he records of deceased and incapacitated workers are obviouslyrelevant to occupational health research. Therefore, the rule explicitlyapplies to records relevant to deceased and legally incapacitated employees.Access to employee Exposure and Medical Records: Final Rule, 45 Fed.Reg. 35,212, 35,261 (1980)(\”1980 Preamble\”).Wyman contends that the judge’s interpretation would not serve the basicpurposes of the regulation, which are to enable: \”workers to play ameaningful role in their own health management\”; \”an employee’s personalphysician to diagnose, treat, and possibly prevent permanent healthimpairment\”; and an employee to shape personal actions in light ofexposure to toxic or otherwise harmful substances. See 1980 Preamble, 45Fed. Reg. at 35,213, 35,214, 35,219, 35,221, and 35,222.The Secretary asserts that the effective date of the regulations is onlyrelevant to the extent it marks the beginning of the obligation onemployers to assure access upon request. It does not act as a limitationon the rights that may be asserted by an \”employee\” or \”designatedrepresentative\” after the effective date. Relying on Pratico v. PortlandTerminal Co. (\”Pratico\”), 783 F.2d 255, 261 (1st Cir. 1985), theSecretary contends that the Act is a remedial statute that is to beconstrued liberally in favor of its beneficiaries, and that herinterpretation is in accord with the remedial purposes of theregulations and the Act.We conclude that the judge’s interpretation of the regulations asdirectly granting a right of access to legal representatives of deceasedemployees is the most reasonable reading of the language in the rulesand is fully consistent with the purposes of the regulations. Under thestandard, the effective date of the regulation has no relevance to thedesignated representative’s right to request access to employee recordsand analyses. While, as Wyman points out, a number of the purposes ofthe regulation benefit living employees, we note that OSHA alsoidentified a purpose of the regulation that is directed to the legalrepresentatives of deceased employees. OSHA stated that:At the suggestion of the Xerox Corp., the final rule also containslanguage assuring that the legal representative of a deceased or legallyincapacitated employee may exercise rights under this rule….OSHAbelieves that the goals of the Act are well served by facilitatingattempts by such legal representatives to ascertain whether the deceasedor legally incapacitated employee was a victim of occupational disease,and to assist health research in discovering the causes of occupationaldisease.1980 Preamble, 45 Fed. Reg. at 35,261.[[5]]Wyman also argues that to interpret the regulation as requiringemployers to provide access to records for employees who died beforeAugust 21,1980, would be unduly burdensome on employers because that\”obligation would be limitless\” and would increase the number ofpotential requests for records \”exponentially.\”[[6]]We note, as the judge did, that the Secretary has determined that thescope and burden of section 1910.20 are limited in that the recordsaccess rules do not require employers to create new records, monitoremployees for exposures, or follow a prescribed format for records.Rather, section 1910.20 only requires that existing covered records mustbe preserved and made accessible, where appropriate. 1980 Preamble, 45Fed. Reg. at 35,257. Because it recognized that the primary purpose ofthe regulations is to detect occupational disease, OSHA concluded thatrecords going back some years \”can be vitally important\” in filling inthe many years of data that a prospective approach would lose. 1980Preamble, 45 Fed. Reg. at 35,258, 35,259.In its notice of hearings on the proposed regulations, OSHA specificallyinvited comment on the issue of economic impact. Access to EmployeeExposure and Medical Records Proposed Rule, 43 Fed. Reg. 46,322(1978)(\”1978 Preamble\”). After identifying and examining the factorsthat would place economic burdens on employers, OSHA determined that therecords access regulations \”will not present major compliance burdens toindustry.\” This conclusion remained the same after consideration of thecomments received on the proposed rules. 1980 Preamble, 45 Fed Reg. at35,254. See also id. at 35,253, 35,256.[[7]] One of the many factorsthat OSHA considered in determining that the regulations areeconomically feasible was that \”there is no reason to expect a flood ofeither initial or periodic requests for access.\” 1980 Preamble, 45 Fed.Reg. at 35,256. Section 1910.20 (e) (2) was \”not meant to penalizeconscientious employers, but is predicated on the judgment thatinvaluable exposure and medical records must be shared so as to minimizeoccupational disease\” 1980 Preamble, 45 Fed. Reg. at 35,258.As the portions of the preambles quoted above demonstrate, indetermining what the regulation should require, OSHA considered andrejected the argument that Wyman raises here. Furthermore, becauseWyman’s contention questions the wisdom of the standard, it is animproper subject for a Commission ruling. E.g., Fabricraft, Inc., 7 BNAOSHC 1540, 1542, 1979 CCH OSHD ? 23,691 at p. 28,723 (No. 76-1410, 1979).We therefore affirm the judge and conclude that, under the terms of therecords access regulation, the legal representatives of Hadis and Emcohave rights of access to relevant records and analysis, and they cananalyze their \”designated representative\” to exercise those rights.B. *Whether the Judge Properly Vacated the Citation on the Ground thatthe Investigation Was Insufficient*As noted above, the events that led to this proceeding began when OSHAreceived a written complaint filed by Kehoe. Upon receiving thiscomplaint, the compliance officer conducted an investigation at Wyman’soffice, where he met with Philip Woodbury, Wyman’s Manager of Safety andIndustrial Hygiene. Woodbury had, by that time, according to histestimony, responded to Kehoe’s requests for records and analyses onbehalf of Emco and Hadis by \”gather[ing] [w]hat could conceivably beargued…was [a] relevant record under the meaning and intent of1910.20.\” During the investigation, Woodbury told the compliance officerthat Wyman was \”fully aware\” of Kehoe’s request and \”the records were inthe custody of their lawyers.\” The compliance officer did not ask to seethe documents himself to determine if Kehoe was entitled to access tothem under the terms of the regulations. Instead, he requested only thatWyman give Kehoe access to all requested records and analyses.In his decision, the judge vacated the entire citation because heconcluded that the investigation was insufficient under section 9(a) ofthe Act. 29 U.S.C. ? 658(a),[[8]] a ground for relief that the judgeraised on his own in the decision.[[9]] The judge stated that, ininvestigating alleged violations of the particular regulations at issuehere, it is necessary for the Secretary to determine whether access hasbeen denied and whether the employer in fact possesses: exposure records\”relevant to the employee\” under section 1910.10(e)(2)(i); medicalrecords \”of which the employee is the subject\” under section 1910.20(e)(2)(ii); and analyses using exposure or medical records \”concerningthe employee’s working conditions or workplace\” under section1910.20(e)(2)(iii). He concluded that, because the Secretary had not yetseen the records and analyses at the time that she issued the citation,the Secretary would have had no evidence to prove the allegations thatKehoe was entitled to access under the terms of the regulations. On thatbasis, he vacated all three citation items.The Secretary argues that the judge erred in vacating the items becausehe acted improperly in introducing this issue into the case for thefirst time in his decision. She notes that \”insufficiency\” of theinspection is, at best, an affirmative defense, which must be pleaded bythe cited employer and that a failure to do so results in waiver orexclusion, citing Depositors Trust Co. v. Slobusky, 692 F.2d 205, 208(1st Cir. 1982). Moreover, she notes that the Commission has held innumerous cases that judges must not consider defenses that are notjurisdictional when they are not raised by the parties. E.g., Ecco HighFrequency Elec. Corp., 11 BNA OSHC 1453, 1454, 1983-84 CCH OSHD ?26,504, p. 33,715 (No. 77-1030, 1983); Slyter Chair, Inc., 4 BNA OSHC1110, 1113, 1975-76 CCH OSHD ? 20,589, p. 24,633 (No. 1263, 1976); D.Federico Co., 3 BNA OSHC 1970, 1971-72, 1975-76 CCH OSHD ? 20,422, pp.24,377-78 (No. 4395, 1976), aff’d, 558 F.2d 614 (1st Cir. 1977). Inparticular, the Secretary points to decisions in which the Commissionhas instructed judges not to raise sua sponte the affirmative defense ofreasonable promptness. Concrete Constr Corp., 4 BNA OSHC 1133, 1134.1975-76 CCH OSHD ? 20,610, pp. 24,663-64 (No. 2490, 1976); ConsolidatedPine, Inc., 3 BNA OSHC 1178, 1180, 1974-75 CCH OSHD ? 19,597, p. 23,408(No. 5543, 1975). She asserts that these cases are clearly on point herebecause, like the issue of reasonable promptness, the insufficiency ofthe investigation at issue here concerns the propriety of OSHAprocedures prior to issuance of the citation. She further contends thatthe judge’s raising of this issue without affording the parties anopportunity to address it is inconsistent with the role of theCommission and its Judges to function as a \”neutral arbiter.\” CuyahogaValley Ry. Co. v. United Transp. Union, 474 U.S. 3, 7 (1985).We conclude that, based on the record in this case and the reasonspresented by the Secretary, the judge erred in sua sponte raising theargument that the investigation was insufficient under section 9(a) ofthe Act.In addition, we note that, even if the investigation were inadequate,Wyman was not prejudiced because it in fact did possess possiblyrelevant records and analyses in each of the three cited categories(employee exposure records, employee medical records, and analysis usingexposure or medical records). As noted above, Woodbury testified that,by the time of the investigation, he had already gathered the recordsand analyses that arguably were applicable under section 1910.20.Therefore, Wyman was not surprised or forced to defend against frivolouscharges.[[10]] Cf. H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 816 (5th Cir.1981) (amendment to allow introduction of evidence obtained during\”investigation\” resulted in neither surprise nor hindrance to employer’spreparation of defense); Bland Constr. Co., 15 BNA OSHC 1031, 1042-43,1991 CCH OSHD ? 29,325, pp. 39,402-03 (No. 87-992, 1991) (amendmentallowed due to lack of prejudice; both parties had basically sameadvantages and disadvantages).For the reasons given above, we conclude that the sufficiency of theinspection is not an issue that is properly before us in this case.C. *Whether the Regulations Violate the Fourth Amendment*Wyman argues that the cited regulations violate the Fourth Amendmentbecause they authorize warrantless searches of records in whichemployers have \”legitimate and reasonable expectations of privacy,\”without \”any administrative mechanisms for testing the reasonableness ofthe request\” for access. The Secretary contends that the FourthAmendment does not apply here for several reasons, and that, even if itdoes apply, it does not prohibit the searches authorized by theregulations. We first address the parties’ arguments as to whether theFourth Amendment applies, and then consider whether the searches atissue violate the Amendment.1. *Whether the Searches Authorized by the Regulations Are Private*The Secretary contends that Wyman has no Fourth Amendment rights toinvoke here because the Fourth Amendment applies only to searches by thegovernment, not to searches by a private individual, such as Kehoe. TheSecretary asserts that, under case law interpreting the FourthAmendment, an individual who conducts a search is not an agent of thegovernment so long as the search is not conducted in collusion with orat the behest of government officials, and that here Kehoe acted on itsown in requesting the records behalf of its clients, without theparticipation or knowledge of any governmental official. She notes thatOSHA did not seek access to Wyman’s records and analyses for itself,although it could have obtained access to them under a separateregulation, 29 C.F.R. ? 1910.20(e)(3).The judge rejected this argument. He held that a search authorized by aregulation is private \”only if the private party is in no way either aninstrument or agent to the government,\” and concluded that this was notthe case here. He determined that \”this proceeding is one of puregovernmental action and the full panoply of Fourth Amendment rightsappl[ies].\”In Monfort of Colorado, Inc., 14 BNA OSHC 2055, 2047-58, 1991 CCH OSHD ?29,246, pp. 39,181-83 (No. 87-1220, 1991), the Commission rejected thesame arguments that the Secretary makes here, by with regard to adifferent regulation. In that case, the Secretary argued that theFourth Amendment does not apply to searches authorized by 29 C.F.R. ?1904.7(b)(1) [[11]] because they are private. The Commissiondisagreed. In Monfort, the requestor was a former employee, to whom theemployer was required by section 1904.7(b)(1) to provide certain recordsthat OSHA requires it to keep. Similarly, in this case, the requestoris the designated representative Kehoe, to whom the employer is requiredby the cited provisions of section 1910.20(e)(2) to provide employeeexposure and medical records and analyses using employee exposure andmedical records.In Monfort, 14 BNA OSHC at 2057-58, 1991 CCH OSHD at pp. 39,181-182, theCommission relied on the decision of the United States Supreme Court inSkinner v. Railway Labor Executives’ Association (\”Skinner\”), 489 U.S.602, 613-614 (1989). The Court in that case reiterated the basicprinciple that the fourth Amendment does protect against searches byprivate parties when they act as instruments or agents of thegovernment. Id. at 614. The Court explained that \”the degree of theGovernment’s participation in the private party’s activities…[is] aquestion that can only be resolved ‘in light of all the circumstances’\”(citations omitted). Id.At issue in that case were regulations of the Federal RailroadAdministration at 49 C.F.R. ? 219.301, contained in Subpart D, entitled\”Authorization to Test for Cause.\” These regulations permit, but do notmandate railroads to require covered employees in certain circumstancesto submit to breath on some of the tests. The Court stated that\”specific features of the regulations combine\” to support the conclusionthat the search was governmental, not private. Id. at 615. Thosespecific features, which, taken together, convinced the Court, were thatthe FRA regulations: preempt state laws and regulations; were intendedto supersede collective bargaining agreement provisions or arbitrationawards construing such provisions; prohibit the railroads from divestingthemselves of, or contracting away, the authority given them by theregulations, confer authority to test, for a public rather than aprivate purpose, in order to promote public safety; do not permitcovered employees to decline their employers’ request to test and remainin covered service; and authorize the FRA to receive \”certain biologicalsamples and test results procured by railroads pursuant to Subpart D.[49 C.F.R.] ? 219.11(c),\” 489 U.S. at 615. Regarding the last factor,the Court noted that the FRA had a \”desire to share the fruits of suchintrusions.\” Id.The Secretary contends that, unlike the FRA in Skinner, OSHA in thiscase does not need or want the records obtained by the employees becauseit has its own independent authority to obtain records under 29 C.F.R. ?1910.20(e)(3). We disagree. The circumstances of this case are notdistinguishable from Skinner on this basis.First, we note that the interest of the agency in acquiring the resultsof the search is just one of a number of factors, which we have listedabove, that the Court considered in reaching its decision in Skinnerthat the search was governmental, not private.Secondly, the Secretary’s contention appears to be based on theassumption that the FRA has a uniformly strong need or desire for allthe testing results that 49 C.F.R. ? 219.11(c),[[12]] the generalprovision on testing that was noted by the Court, grants to it the rightto receive. However, that provision authorizes FRA’s access to themandatory post-accident testing results taken under Subpart C, as wellas the permissive testing results taken under Subpart D. It is arguablethat the FRA may not need or want the results or permissive testing anymore than the Secretary needs or wants the records here.As the court did in Skinner, we conclude that \”specific features of theregulations issue here\” combine to support our conclusion that thesearches authorized by the regulations are governmental, not private.These features include the intent of section 1910.20(e)(2) to promotethe safety and health of employees in the workplace by informing them ofjob hazards. The regulation also furthers the purposes Congress had inenacting the Occupational Safety and Health Act, of \”assur[ing] so faras possible every working man and woman in the Nation safe and healthfulworking conditions,\” and \”providing medical criteria which will assureinsofar as practicable that no employee will suffer diminished health\”due to the employee’s work experience. Section 2(b) and (b)(7) of theAct, 29 U.S.C. ?651(b) and (b)(7). Moreover, the regulation here wasdesigned to encourage epidemiological research that can uncover patternsof occupational illness and the causes of these patterns. 1980 Preamble,45 Fed. Reg. at 35,222. Consideration of these special features leads usto reject the Secretary’s characterization of the searches authorized bythe cited provisions of section 1910.20(e)(2) as merely private searchesto which the Fourth Amendment does not apply.[[13]]2. *Whether the Reasonable Reporting Requirement Exception Applies*The Secretary further argues that the cited regulations fall within thereasonable reporting requirement exception to the Fourth Amendment’swarrant requirement, discussed in California Bankers Association v.Shultz, 416 U.S. 21, 57-67 (1974). As we stated in Monfort, thereasonable reporting requirement exception to the Fourth Amendmentapplies only when the reports are submitted to the government, ratherthan to private individuals. 14 BNA OSHC at 2058-59, 1991 CCH OSHD at p.39,183. The regulations at issue here only concern \”reporting\” to thedesignated representative, not to the government, therefore, thatexception does not apply.3. *Whether There Was a Reasonable Expectation of Privacy*As another basis for finding that the Fourth Amendment does not apply,the Secretary claims that Wyman has no reasonable expectation of privacyvis-a-vis its own employees, past and present, two of whom Kehoerepresents here. She relies on Marshall v. Barlow’s Inc.,436 U.S. 307,315 (1978), where the Court stated that \”[w]hat [employees] observe intheir daily functions is undoubtedly beyond the employer’s reasonableexpectation of privacy.\” In response, Wyman claims that it does have areasonable expectation of privacy in the employee exposure and medicalrecords, as well as analyses, that it has maintained over the years.In order to invoke the protections of the Fourth Amendment, the partyseeking relief must have a reasonable expectation of privacy in theobject of the search. As the Court has declared, \”[a] [Fourth Amendment]search occurs when ‘an expectation of privacy that society is preparedto consider reasonable is infringed.’\” Maryland v. Macon, 472 U.S. 463,469 (1985) (quoting United States v. Jacobsen, 466 U.S. 109, 113(1984)). A reasonable expectation of privacy exists where the\”subjective expectation of privacy\” that an individual claims in theobject of the search is an expectation that \”society accepts asobjectively reasonable.\” See California v. Greenwood, 486 U.S. 35, 39(1988). We therefore must consider here whether Wyman’s claimedexpectation of privacy meets that test.In Monfort, 14 BNA OSHC at 2059-60, 1991 CCH OSHD at p. 39,184, theCommission held that in order to determine whether there is a reasonableexpectation of privacy, we must consider: what the nature of the recordsin question is; how private is the information in the records, andtherefore how intrusive the search would be; and to what extent some ofthat information is otherwise divulged by the employer. Applying thesecriteria to the standardized OSHA No. 200 forms (\”OSHA 200’s\”) at issuein Monfort, the Commission concluded that the employer lacked areasonable expectation of privacy. However, we conclude that the recordsat issue in this case are clearly distinguishable.OSHA 200’s contain only summary-type information concerning injuries andillnesses that employees may have learned of while on the job. Employersare required by law to post part of the OSHA 200 at the worksite.Furthermore, regulations require employers to compile the information onOSHA 200’s. In contrast, the employee exposure and medical records andanalyses at issue here contain quite detailed and personal information,and they may well reveal information about the employee’s workplace andprocesses that the employer may have a legitimate expectation in keepingconfidential.The Commission has determined that at least as to one type of record,the OSHA No. 101 form (\”OSHA 101\”), which contains considerably moredetailed information.[[14]] than the OSHA 200, employers do have areasonable expectation of privacy. Taft Broadcasting Co.,Kings IslandDiv., 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 Elec. Co.,13 BNA OSHC 1171, 1172 n.1, 1986-87 CCH OSHD ? 27,864, p. 36,493 n.1,aff’d, 834 F.2d 994 (11th Cir. 1987); and A B. Chance Co., 13 BNA OSHC1172, 1986-87 CCH OSHD ? 27,863, p. 36,492 (No. 85-519, 1987), rev’d,842 F.2d 724 (4th Cir. 1988).Employers have an even greater expectation of privacy in the types ofrecords and analyses that are sought here than in their OSHA 101’s. Therecords and analyses at issue here may contain information on exposures,injuries, and illnesses of which the requesting employee orrepresentative is otherwise unaware. Moreover, these records andanalyses were, for the most part, compiled on the employer’s owninitiative, not for the purpose of complying with an OSHA regulation.In light of the detailed information that the records and analysescontain and the attendant concerns regarding confidentiality, weconclude that Wyman had a reasonable expectation of privacy in therecords and the related analyses that are sought here.4.*Whether the Searches Authorized by the Regulations Are Reasonable*Having rejected all the Secretary’s arguments that the Fourth Amendmentdoes not apply, we must next determine whether the searches authorizedby the cited regulations are reasonable, or whether they areunreasonable and thereby require OSHA to obtain a warrant or equivalentlegal process whenever an employee or designated representative seeksaccess to the records and analyses.The basic purpose of the Fourth Amendment is to protect against searchesthat are \”unreasonable.\” There is \”no ready test for determiningreasonableness other than by balancing the need to search against theinvasion which the search entails.\” Camara v. Municipal Court(\”Camara\”), 387 U.S. 523, 536-37 (1967). Whether a search is reasonable\”is judged by balancing its intrusion on the individual’s FourthAmendment interests against its promotion of legitimate governmentalinterests.\” Skinner, 489 U.S. at 619, (quoting Delaware v. Prouse, 440U.S. 648, 654 (1979)). What is reasonable \”depends on all thecircumstances surrounding the search or seizure and the nature of thesearch or seizure itself.\” Skinner, 489 U.S. at 619 (quoting UnitedStates v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)).The regulations at issue here, which address access to employee exposureand medical records, as well as analyses using exposure or medicalrecords, serve important informational interests of employees and theirdesignated representatives. In comparison, the employer’s interest inmaintaining the privacy of the records and analyses with regard to itsown employees is not very compelling. While it is true that some of therecords and analyses at issue were prepared before the OccupationalSafety and Health Act was enacted and may not have been intended forother than Wyman’s own viewing, the Secretary took that into account inpromulgating the records access regulations. Noting the \”typically longlatency periods associated with occupational disease,\” the Secretaryexplained that \”[e]mployer arguments of unfairness must fall whenbalanced against the fact that continued secrecy will substantiallyimpair the ability of workers, their representatives, and OSHA todetect, treat and prevent occupational disease.\” 1980 Preamble, 45 Fed.Reg. at 35,258.Wyman contended at oral argument that to require employers to provideaccess to the records and analyses would have a \”chilling effect\” onemployers and discourage them from preparing employee exposure andmedical records and analyses for their own purposes. In promulgating thefinal access rules, OSHA noted similar arguments made by variouscompanies and associations that \”[b]ecause of the requirement forproviding access to studies based on exposure or medical records . . .there may be a detrimental effect on company-sponsored health researchor epidemiological studies.\” 1980 Preamble, 45 Fed. Reg. at 35,236.Participants in the rulemaking also voiced concerns that \”broadenedaccess to medical records would inevitably impair the creation,expansion and effectiveness of occupational medical programs.\” Id. Inresponse to these arguments, OSHA stated that:these predictions are exaggerated, since no concrete evidence waspresented which indicated the standard would have a negative impact oncorporate efforts to provide occupational health programs. As previouslynoted, corporate witnesses stated that, in fact, there would likely beno reduction in their occupational medical efforts.Id. Therefore, in determining whether to adopt or modify the proposedrecords access regulations, OSHA considered and rejected the sameargument that Wyman raises here. Furthermore, because Wyman’s contentionquestions the wisdom of the standard. It is an improper subject forCommission ruling E.g., Fabricraft, Inc. 7 BNA OSHC at 1542, 1979 CCHOSHD at p. 28,723.Moreover. an important objective is achieved by giving employees accessto, the exposure and medical records and analyses using exposure andmedical records–employees are informed about on-the-Job health andsafety hazards. As OSHA has noted. [s]ound public policy dictates thatworkers he afforded a central role in the detection and solution ofhealth problems … .\” 1980 Preamble, 45 Fed. Reg. 35,219. OSHA alsoexplained that the problems that led to the passage of the Act and thehigh rates of occupational disease and death … are reflections of thefact that, by itself, industry on the whole does not adequately protectworker health.\” Id.An obligation that Congress imposed on the Secretary under the Act is toassure that employees have access to information relating to their\”occupational safety and health. Section 8 (c) (1) of the Act, 29 U. S.C. ? 657 (c) (1), provides that \”[t]he Secretary shall also issueregulations requiring that employers, through posting of notices orother appropriate means, keep their employees informed of theirprotections and obligations under this Act. including the provisions ofapplicable standards.\” Section 8 (c) (3) of the Act, 29 U. S. C. ? 657(c) (3), states that the regulations issued by the Secretary requiringemployers to maintain records of employee exposures to potentially toxicmaterials or harmful physical agents \”shall provide employees or theirrepresentatives with an opportunity to observe such monitoring ormeasuring, and to have access to the records thereof.\” Section 8 (g) (1)of the Act, 29 U. S. C. ? 657 (g) (1), authorizes the Secretary tocompile. analyze, and publish, either in summary or detailed form. allreports or information obtained under this section.\”[[15]]The Secretary also recognized that the procedure used by employees andtheir designated representatives to obtain access to the information inthe records should not be unduly burdensome, such as requiring legalprocess, about which they may have little, if any, understanding. Thegovernmental objective behind the records access regulations is setforth at the beginning of the 1980 Preamble as follows:The fundamental reasons for this standard are the agency’s judgments,based on experience, expertise, and the rulemaking record, that employeeexposure and medical records are critically important to the detection,treatment, and prevention of occupational disease, and workers and theirrepresentatives need direct access to this information as well as toanalyses of [employee exposure and medical] records….45 Fed. Reg. at 35,213 (emphasis added).OSHA further noted that sound public policy dictates that workers [andtheir designated representatives] be afforded a central role in thedetection and solution of health problems, as there are no assurancesthat anyone else will protect their health with equal vigor ordetermination….Id. at 35,219.In a similar context, the Supreme Court has stated that \”theGovernment’s interest in dispensing with the warrant requirement is atits strongest when, as here, ‘the burden of obtaining a warrant islikely to frustrate the governmental purpose behind the search.\”‘Skinner, 489 U.S. at 623 (quoting Camara, 387 U.S. at 533). The Courtwent on to state that:insistence on a warrant requirement would impede the achievement of theGovernment’s objective. Railroad supervisors, like school officials, seeNew Jersey v. T.L.O., 469 U.S. [325],339-40 [(1985)], and hospitaladministrators, see O’Connor v. Ortega, 480 U.S. [709], 722 [(1987)],are not in the business of investigating violations of the criminal lawsor enforcing administrative codes, and otherwise have little occasion tobecome familiar with the intricacies of this Court’s Fourth Amendmentjurisprudence.Id.To impose a warrant requirement here would frustrate the stated purposeof the regulations to grant direct access. It would impose on employeesor their designated representatives the burden of seeking a warrant,even though they are no more in the business of enforcing administrativeregulations than the railroad supervisor, school official, and hospitaladministrator mentioned by the Court in Skinner. We therefore concludethat it would likely be unduly burdensome to require employees or theirdesignated representatives to obtain warrants or administrativesubpoenas as a condition precedent to gaining access to the records andanalyses sought here.We thus conclude that the searches authorized by the regulations atissue are reasonable under the Fourth Amendment because the interests ofthe designated representatives in the records and analyses outweigh theprivacy interests of Wyman in those records.D. *Summary*We have concluded that: (1) the legal representatives have rights ofaccess to records and analyses under the regulations: (2) the issue ofthe sufficiency of the inspection is not properly before us; and (3) theFourth Amendment applies but is not violated by the cited regulations.E.*Disposition of Item 2–Access to Medical Records*Having disposed of all the issues raised by Wyman that are directed tothe entire citation, we have thus resolved Wyman’s only challenges toitem 2 of the citation, which, as discussed in section 1, supra,concerns access to employee medical records. We therefore affirm item 2as an other-than- serious violation of section 1910.20(e)(2)(ii)(B).Remaining for consideration are issues raised by the Secretary and Wymanconcerning access to employee exposure records (item 1) and access toanalyses using exposure or medical records (item 3).III. *Item 1–Access to Exposure Records*Item 1 of the citation alleged that, by denying the designatedrepresentative access to relevant employee exposure records, Wymanviolated section 1910.20(e)(2)(i), which provided: [[16]]Each employer shall, upon request, assure the access of each employeeand designated representative to employee exposure records relevant tothe employee. For the purpose of this section, exposure records relevantto the employee consist of:(A) Records of the employee’s past or present exposure to toxicsubstances or harmful physical agents,(B) Exposure records of other employees with past or present job dutiesor working conditions related to or similar to those of the employee,(C) Records containing exposure information concerning the employee’sworkplace or working conditions ….(Emphasis added).Because the disputed records do not show actual exposures of Emco orHadis to the harmful substances being measured, the Secretary and Wymanagree that none of the records are \”relevant\” to these employees undersubsection (A). Rather, the Secretary contends that she has establishedthat Wyman violated section 1910.20(e)(2)(i) by showing that certain\”Exhibits\”[[17]] specifically identified by the Secretary, as a resultof her examination under the judge’s order:(1) are \”exposure records ofother employees with past or present job duties or working conditionsrelated to or similar to those of the employee\” under subsection (B); or(2) contain \”exposure information concerning the employee’s workplace orworking conditions\” under subsection (C).[[18]]Wyman argues that the Secretary has not proven any violation because shefailed to meet her burden of establishing a nexus between Emco’s orHadis’ work routine and exposure to the substances measured in theexposure records.We discuss these arguments first as they relate to Emco and \”Exhibits\”3A and 7, and then as they relate to Hadis and \”Exhibits\” 8A, 8B, 8C,and 11.A. *Emco and \”Exhibits\” 3A and 7*The Secretary asserts that, contrary to the judge’s findings, sheestablished that \”Exhibits\” 3A and 7 are \”relevant\” to Emco and hastherefore proven that Wyman violated section 1910.20(e)(2)(i) in that itdid not provide Kehoe with access to them.\”Exhibits\” 3a and 7 consist of results of air samples taken in theWorcester Die Shop at or near operators of grinding and boring machines.The sampling was done in January and February of 1979 to measure levelsof the target substance,[[19]] which is generated at grinding and boringmachines during coolant application. \”Exhibit\” 3A consists of results offive area samples taken at breathing zone level in the vicinity of themachine operators. The samples are identified by machine, not byemployees’ names. \”Exhibit\” 7 contains results of sampling at thebreathing levels of the operators, between the operators and themachines. These results identify the operator sampled. \”Exhibit\” 7contains a statement that \”[i]t was alleged that [the target substance]drifted into\” the location of two machine operators when a specificgrinding machine was in operation across the aisle.According to his personnel record, which was admitted into evidence,Emco worked in the Die Shop at the Worcester facility from January 1952to February 1963, and from September 1969 to February 1971. His jobpositions in the Die Shop during these periods were \”die trainee,\” \”trimdie maker,\” \”die mover,\” \”die inspector-helper,\” and \”die inspector.\”Emco worked in other departments at the Worcester facility in additionto the Die Shop. Most notably, he worked as a \”process inspector\” in theInspection Department from October 1978 until his retirement in February1979.Philip Woodbury, Wyman’s Manager of Safety and Industrial Hygiene,testified that Wyman made the determination that the records at issuedid not relate to Emco because he was not working in the Die Shop inJanuary and February of 1979, when the sampling was done. Woodburystated that in order to determine whether access to a particular DieShop record must be provided to Kehoe under the regulation, it isnecessary to know the operation being monitored, the alloys beingmachined, the specific machine coolant and cutting fluid being used, andthe environment at the time. Colleen Murphy, Wyman’s Eastern DivisionIndustrial Hygienist, agreed with Woodbury, noting that it is necessaryto know if the machine and lubricant sampled for the record are the sameas those used by the employee. She testified that \”throughout the [die]shop\” there is \”nothing static.\”I. *Judge’s Decision*The judge found that Emco was at the Worcester Die Shop at the time\”Exhibits\” 3A and 7 were compiled. However, as noted above, Emco’spersonnel record shows that he was working as a Process Inspector in the\”Inspection\” Department at Worcester in January and February of 1979,when the samples for \”Exhibits\” 3A and 7 were taken. Emco’s personnelrecord clearly distinguishes the \”Die Shop\” as a separate departmentfrom \”Inspection.\” We therefore conclude that, at the time of thesampling, Emco was working in the Worcester plant, but not in the DieShop, where he had previously worked. Insofar as the judge foundotherwise, we set aside his determination on this matter, which alone isnot dispositive of this issue.The judge determined that, although the \”Exhibits\” contained samplingresults from the Die Shop, they were not \”relevant\” to Emco undersubsection (B) because they were not exposure records of employees with\”job duties or working conditions related to or similar to\” Emco’s jobpositions. The judge concluded that he \”would have to guess that a dietrainee, a trim die maker, an inspector, mover, or lubricator, all thejobs described as held by Mr. Emco, are related to the records marked asexhibits 3A and 7,\” which concern only operators of grinding and boringmachines.The judge found that the \”Exhibits\” did contain \”exposure informationconcerning [Emco’s] workplace,\” as subsection (C) requires. However, hedetermined that the Secretary must show more than the presence of theemployee in the workplace; she must prove, in the judge’s words, \”somerelationship between an employee’s [work] routine and exposure to atoxic agent or harmful physical substance.\” In support of thisconclusion, he looked toward provisions that apply to all records accessregulations, including 29 C.F.R. ? 1910.20(c)(5). which defines\”employee exposure record\” as \”a record containing any of [several]kinds of information concerning employee exposure to toxic substances orharmful physical agents.\”[[20]] The judge also noted the \”extreme care\”used regarding new or transferred employees in the provision defining\”employee\” at 29 C.F.R. ? 1910.20(c)(4).[[21]] He observed that OSHA’sexplanation for that careful inclusion was that \”employees with onlyhypothetical future exposure are not entitled to any rights under thisrule….\” 1980 Preamble, 45 Fed. Reg. at 35,261.The judge concluded that, because the \”Exhibits\” show exposure of onlyemployees who operated grinding and boring machines, positions neverheld by Emco, the Secretary did not prove that Emco,. in his positionsin the Die Shop, encountered actual or potential exposure to the targetsubstance. He therefore vacated the citation item insofar as it allegeda violation based on failure to provide access to \”Exhibits\” 3A and 7.2. *Arguments of the Parties*The Secretary argues that \”Exhibits\” 3A and 7 are relevant to Emco underthe express terms of the cited regulation. She contends that theoperators of the grinding and boring machines in the Die Shop had duties\”related to or similar to\” those of Emco, as subsection (B) requires andthat the records \”concern\” Emco’s \”workplace,\” as subsection C)requires. Urging us to give the term \”workplace\” its plain meaning, sherefers to Frank Diehl Farms v. Secretary of Labor, 696 F.2d 1325 (11thCir. 1983). In that case, the court recognized that[s]ince Congress left the term \”workplace\” [in section 4(a) of the Act,29 U.S.C. ?653 (a)] undefined in the Act, it should be given itsordinary, common sense meaning…The term \”workplace\” connotes the placewhere one must be in order to do his job.Id. at 1331. Quoting from Webster’s Third New International Dictionaryof the English Language 2635 (1971), she states that \”workplace\” means a\”place (as a shop or factory) where work is done.\” (Secretary’semphasis).[[22]]The Secretary specifically takes issue with the judge’s reliance on thedefinition in section 1910.20(c)(5) of \”employee exposure record.\” Shecontends that, in making this connection, the judge \”erroneouslyengrafted onto\” section 1910.20(e)(2)(i)(C) a requirement that theSecretary show a potential for exposure of the requesting employee tothe target substance. In the Secretary’s view, she need only show thatthe requesting employee was working in a workplace where the samplingwas done. The Secretary notes that all she is seeking is an orderrequiring Wyman to provide the designated representative with access toalready existing records. She contends that such access should not bedependent upon her ability to establish Emco’s exposure to the targetsubstance, or to show, for example, a violation of 29 C.F.R. ?1910.1000, which sets limits on employee exposure to air contaminants.The Secretary emphasizes that the purpose of the records accessregulations is to grant \”broad worker and designated representativeaccess to records.\” 1980 Preamble, 45 Fed. Reg. at 35,217. She assertsthat remedial regulations, like OSHA’s, are to be broadly construed,citing Pratico, 783 F.2d at 261. She also contends that herinterpretation of her own regulation is reasonable and thereforeentitled to deference by the Commission and courts, relying in her briefon Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).Furthermore, the Secretary contends that, even if she does, as the judgefound, have the burden of showing Hadis’ possible past exposure, she hasproven it.Wyman contends that the judge’s analysis of the relevancy of \”Exhibits\”3A and 7 under section 1910.20(e)(2)(ii) was \”precisely the way\” such adetermination should be made. It urges the Commission to affirm thejudge’s conclusions that: (1) the Secretary must prove some relationshipbetween an employee’s work routine and exposure to the target substancein order to show relevancy; and (2) she has failed to show that withregard to \”Exhibits\” 3A and 7.3. *Discussion*a. *\”Relevance\” under Subsection (B)*Subsection (B) provides that records are relevant so long as there are\”[e]xposure records of other employees with past or present job dutiesor working conditions related to or similar to those of the employee.\”Therefore, this subsection applies only to personal sampling results,see 1980 Preamble, 45 Fed. Reg. at 35,272-73. Only \”Exhibit\” 7 containspersonal sampling results. \”Exhibit\” 3A contains only area samplesidentified by machine. Therefore, \”relevance\” under subsection (B) couldonly be established with regard to \”Exhibit\” 7. To make a prima facieshowing of \”relevance\” under subsection (B) in this case, the Secretaryhad to prove that the operators of the grinding and boring machines whowhere one must be in order to do his work.\” We agree with the Secretarythat, by showing that Emco worked in the Die Shop, the same \”workplace\”or \”shop\” where the sampling was conducted, she has established that\”Exhibit\” 3A is \”relevant\” to Emco under subsection (C). See Martin v.OSHRC (CF&L Steel Corp.), 111 S. Ct. 1171 (1991). However, as the judgefound, this minimal showing of \”relevancy\” as defined in subsection (C)(which, as noted above, has since been deleted) may not establish aviolation by itself. Remaining for consideration is the issue of proofof a relationship between Emco’s job duties and the target substance.[[25]]c. *Relation Between Emco and Exposure*Wyman contends that the Secretary has not proven a violation because, asthe judge found, she did not establish a relationship between Emco’swork routine and exposure to the target substance. The Secretarycontends that the only showing required to obtain access under section1910.20(e)(2)(i) is that the employer worked in the same \”workplace.\”1. *Necessity of Showing Relation*The judge concluded that the regulations were only intended to requireemployers to provide access to employees whose job duties placed them inpositions of actual or possible exposure to the sampled substances. Hefound that this requirement was rooted in the following two definitionalprovisions at 29 C.F.R. ? 1910.20(c).Section 1910.20(c)(5) provides, as noted above, that \”an employeeexposure record\” is a record containing information \”concerning employeeexposure.\” By its own terms, this definition demonstrates OSHA’sintent not to grant access to records where the requesting employee hasnever been exposed to a toxic substance or harmful physical agent.Application of that definition here accords with: (1) the general scopeprovisions for the records access rules, see 29 C.F.R. ? 1910.20(b)(l)and (2); [[26]] and (2) OSHA’s explanation in the summary of theregulations that:[s] ince the rule seeks to yield benefits in the detection, treatmentand prevention of occupational disease, coverage is appropriatelylimited to records relevant to employees currently or previously exposedto toxic substances or harmful physical agents.1980 Preamble, 45 Fed. Reg. at 35,215 (emphasis added).The other definitional provision is section 1910.20(c)(4), see supranote 21, which provides that the term \”employee\” means \”a currentemployee, a former employee, or an employee being assigned ortransferred to work where there will be exposure to toxic substances orharmful physical agents….\”That language was developed in response tocomments on a section in the proposed regulations that provided, asexplained by OSHA that an employee or designated representative would be\”entitled to exposure information that is indicative not only of theemployee’s current exposures, but also information regarding formerexposures and future or potential exposures as well ….\” 1978 Preamble,43 Fed. Reg. at 31,373. The definition at section 1910.20(c)(4) thusimplements OSHA’s announced policy under the Act that \”employees havetheir basic right to know about their exposures to workplace hazards andthe effects of exposure\” (emphasis added). Id. at 31,371.In addition to the definition upon which the judge relied, thedefinition of \”exposure\” or \”exposed\” at 29 C.F.R. ? 1910.20(c)(8)supports his view well. According to that provision \”[e]xposure orexposed means that an employee is subjected to a toxic substance orharmful physical agent in the course of employment…and includes pastexposure and potential (e.g., accidental or possible) exposure…\” OSHAexplained \”[t]his [latter] phase was included to indicate that thestandard covers situations where exposure could reasonably have occurredand not only situations where exposure has definitely occurred or beenmeasured.\” 1980 Preamble, 45 Fed. Reg. at 35,265. In further explanationthis definition, OSHA stated:The final standard thus does not apply to every situation where anychemical or hazard is present in the workplace. While the final rulepresumptively applies to all occupational exposures to toxic substancesand harmful physical agents, the agency does not intend to coversituations where the employer can demonstrate that an employee is solelyexposed to general environmental pollution, or to casual use of consumerproducts. For example, basic chemical processes and abnormal exposuresto heat, noise, and vibration are covered by the rule, but typicaloffice working conditions are not. The applicability of the standarddoes not, however, depend on any showing that the level of actualexposure to a toxic substance or harmful physical agent is particularlyexcessive, but rather on the unique fact of occupational exposure.Id. at 35,265 (emphasis added). In 1988, the Secretary (after noting thelanguage quoted above) explained that there were no revisions to itbecause \”[t]his continues to be OSHA’s interpretation of the degree ofexposure necessary to trigger the requirements of the rule.\” Access toEmployee Exposure and Medical Records: Final Rule, 53 Fed. Reg. 38,140,38,151 (1988)(\”1988 Preamble\”). Thus, the Secretary must show \”theunique fact of occupational exposure\” to \”trigger\” these regulations.Reading this provision and section 1910.20(c)(4) and (c)(5) togetherwith portions of the preambles to the proposed, final, and amendedregulations establishes that the judge was correct in requiring theSecretary to show that, at the very least, Emco’s work routine couldpossibly have exposed him to the target substance in order to prove aviolation under section 1910.20. This is in accordance with thewell-established rule of statutory construction that \”each part orsection should be construed in connection with every other part orsection so as to produce a harmonious whole.\” 2A Sutherland StatutoryConstruction ? 46.05 (4th ed. 1984).[[27]] The Secretary herselfrecognized and advocated use of this principle of regulatoryconstruction in her \”workplace\” argument mentioned in note 22 supra.Commission precedent also supports this result. The requirement that theSecretary make this showing under this regulation is similar to therequirement that, ordinarily, the Secretary must prove that the employeewas or would be in the \”zone of danger\” because of the nature of theemployee’s duties and activities in order to establish a prima facieshowing of a violation. See Gilles & Cotting, Inc., 3 BNA OSHC 2002,2003, 1975-76 CCH OSHD ? 20,448, p. 24,425 (No. 504, 1976). Cf. AstraPharmaceutical Prods., Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ?25,578, 31,899-900 (No. 78-6247, 1981), aff’d in part, 681 F.2d 69 (1stCir. 1982)(element required to prove a violation–employees had accessto the violative condition). While under normal circumstances theSecretary must make such a showing, there is no such requirement, where,based on the peculiar circumstances of the case, it would be unfairlyburdensome. See General Carbon Co., Div. of St. Mary’s Carbon Co. v.OSHRC, 860 F.2d 479, 482-83 (D.C. Cir. 1988) (the Secretary need notshow exposure under the unique circumstances of a case involving thehazard communication standard (29 C.F.R. ? 1910.1200), where downstreamuses and procedures unknown).In Gilles & Cotting, the employer claimed, as Wyman does here, that theSecretary must show actual exposure of the employee to the hazard. TheSecretary maintained that a more practical burden would be to showexposure based on reasonable predictability, which could be proven byshowing that employees \”while in the course of their assigned workingduties\” actually were or will be \”in a zone of danger.\” 3 BNA OSHC at2003, 1975-76 CCH OSHD at p. 24,425. The Commission agreed, furthernoting that \”[w]e cannot by this decision foresee all the possibilities[of employee exposure to a hazard]; the question is one of fact to bedetermined on a case by case basis.\” Id. The regulation here imposesjust such a practical burden on the Secretary.This exposure requirement can be met by a fairly minimal showing. Forexample, it could be sufficient to show that the employee worked in thesame job position in the same department as the employees sampled forthe records. Such proof would be necessary anyway to establish\”relevancy\” under subsection (B) as it existed when Wyman was cited, orunder the revised subsection (B), set forth in note 18 supra.For the reasons stated above, we conclude that, in order to prove aviolation of section 1910.20 here, the Secretary must show arelationship between Emco’s work routine and exposure to the targetsubstance.2. *Adequacy of Showing*Having found that the Secretary must show some relationship between Emcoand exposure to the target substance, we now consider whether she hasdone so here. The judge determined that, although it was establishedthat Emco had worked in the Die Shop, \”the factual pattern was notdeveloped to the point where I may find that those positions would orcould bring Mr. Emco into exposure.\” He stated that, based on the recordin the case, he would have to \”guess\” that Emco’s jobs would haveexposed him to hazards experienced by operators of grinding and boringmachines, jobs which Emco never held.We agree with the judge and conclude that, although the Secretaryestablished that Emco had worked in the Die Shop in years prior to thesampling that was the subject of \”Exhibit\” 3A, she failed to show anyrelationship between the types of jobs that Emco performed in that shopand the work performed by the employees near the areas sampled in\”Exhibit\” 3A.[[28]] The only evidence in the record is that Emco’s jobtitles differed from those of the employees working in the areas sampledin early 1979.The Secretary claims that \”a showing has been made that [Emco] worked inthe same general area as fellow employees who unquestionably wereexposed to\” the target substance, and the target substance was \”notconfined but would drift.\” She relies on \”Exhibits\” 3A and 7 as supportfor those arguments, as well as for her contention that it was shownthat \”[a]n air blower caused [the target substance] to drift in the dieshop.\” We find no basis in the record for the Secretary’s contentionthat the target substance would drift throughout the Die Shop. Herreliance on \”Exhibits\” 3A and 7 is misplaced because, as noted above, byagreement of the parties, the \”Exhibits\” are not in evidence. Even if wecould consider the information in the \”Exhibits,\” it appears that only\”Exhibit\” 7 has any possibly relevant language, and it is presented inthe form of an allegation, not a statement of fact.Based on the record before us, we find that the Secretary has notestablished the requisite relationship between Emco’s work routines andexposure to the target substance necessary to prove a violation ofsection 1910.20(e)(2)(i). [[29]] We note that the Secretary might haveestablished the requisite nexus in the case if she had elicitedtestimony or otherwise established by evidence of record that Emco’spositions in the Die Shop placed him very near operators of the grindingand boring machines. Furthermore, the record does not include evidenceof the size of the shop. Had the Secretary introduced information onthese matters into evidence and had such evidence shown a relationshipbetween Emco and exposure, she could have established the exposureelement of her case. Based on the Secretary’s failure of proof and theundisputed testimony of Woodbury and Murphy that the conditions in theDie Shop varied depending on the machine and lubricant in use, weconclude that no violation was proven with regard to \”Exhibit\” 3A.3. *Summary*We conclude, as the judge did, that the Secretary has not met her burdenof proof with regard to \”Exhibits\” 3A and 7. Therefore, we vacate item 1insofar as it alleged a violation of section 1910.20(e)(2)(i) forfailure to provide Kehoe with access to \”Exhibits\” 3A and 7.The remaining issues in this case concern records and analyses allegedlyrelevant to Hadis, who worked in a different department than Emco at theWorcester facility.B. *Hadis and Exhibits\” 8A and 8B*Section 1910.20(e)(2)(i)(B) provided, as quoted above, that exposurerecords are \”relevant\” to the employee if they are \”of other employeeswith past or present job duties or working conditions related to orsimilar to those of the employee.\” Wyman argues that the judge erred infinding that \”Exhibits\” 8A and 8B are \”relevant\” to Hadis undersubsection (B) and in concluding that Wyman violated section1910.20(e)(2)(i) by refusing to allow access to them.\”Exhibits\” 8A and 8B are the results of personally-identified airsamples of \”helpers,\” \”oilers,\” \”operators,\” and \”hammermen\” in theForge Department at Worcester. The samples, which were taken in March1978 (\”Exhibit\” 8A) and March 1979 (\”Exhibit\” 8B) show the exposure ofthese employees to the target substances that resulted from the use ofcertain forging compounds, or lubricants. The Secretary has maintainedthat, because Hadis worked in some of these same positions in this samedepartment, \”Exhibits\” 8A and 8B are exposure records \”of otheremployees with past or present job duties or working conditions relatedto or similar to those of\” Hadis, and therefore \”relevant\” to him undersection 1910.20(e)(2)(i)(B).Hadis worked in the Forge Department at Wyman’s Worcester plant as a\”helper,\” \”oiler,\” \”general forge helper,\” and \”die heater\” from October1950 to September 1971. He worked for short periods in the ForgeDepartment as a \”forge helper\” in 1974, 1975, and 1977, and as a\”manipulator operator\” In 1979, in between jobs in other divisions ofthe Worcester plant, such as the Inspection Department.Philip Woodbury, Manager of Safety and Industrial Hygiene for Wyman’sEastern Division, described the Forge Department as \”a very large place\”measuring 79,000 square feet. It contains hammers in clusters of two orthree separated by furnaces, a centrally located blacksmith shop, andtrim presses. Woodbury further testified that the Forge Department is a\”job shop,\” not a production facility, and at any one moment employeesin the department may be working on 300 or more different productconfigurations. According to VVoodbury and Colleen Murphy, Wyman’sIndustrial Hygienist, the alloys, temperatures, materials, andenvironment in the Forge Department are constantly changing.The judge agreed with the Secretary and concluded that, because Hadishad worked in some of the sampled job positions in the Forge Department\”over the years\” and \”during the sampling,\”[[30]] \”Exhibits\” 8A and 8Bwere \”relevant\” to Hadis. He found that by denying access to them, Wymanhad violated section 1910.20(e)(2)(i).Wyman contends that the judge erred because the Secretary has not proventhat: (1) employees whose exposure was sampled had \”job duties orworking conditions related to or similar to\” those of Hadis, within themeaning of subsection (B); and (2) the target substances sampled wereused when, and in the area where. Hadis worked, and therefore there wasno evidence linking Hadis’ work in the Forge Department with exposure tothe target substance. Wyman contends that just because the employeessampled had the same job titles as Hadis does not mean that they weresimilarly situated. Wyman relies on the testimony of its IndustrialHygienist Murphy that employees having the same job title in the ForgeDepartment can perform different tasks. Murphy gave as a specificexample that she has been \”in the Forge Shop where somebody whose jobtitle was an oiler at a certain location may be a helper,\” or if hisoiler job finishes early, he may get reassigned.1. *\”Relevance\” under Subsection (B)*To make a prima facie showing of \”relevance\” here under subsection (B),the Secretary must show that the \”Exhibits\” 8A and 8B consist of\”[e]xposure records of other employees with past or present job dutiesor working conditions related to or similar to those of\” Hadis. Weconclude that she has made such a showing because \”Exhibits\” 8A and 8Bcontain the results of personal samples taken of employees who, likeHadis, worked in the Forge Department as \”helpers\” and \”oilers.\”To rebut the Secretary’s showing, Wyman relies on Murphy’s testimonythat employees with the same job title do not necessarily perform thesame work. Wyman’s reliance is misplaced. The specific example thatMurphy gave was that an oiler might do a helper’s job. However, Hadiswas employed both as a helper and an oiler, and sampling results fromemployees in both of those positions are contained in the \”Exhibits.\”We therefore conclude that the Secretary has established that \”Exhibits\”8A and 8B are \”relevant\” to Hadis.2. *Relation Between Hadis and Exposure*Wyman argues that the Secretary has not proven a violation because shehas not related Hadis’ work duties to exposure to the target substance.It contends that this is necessary because, as its witnesses Woodburyand Murphy testified, the Forge Department is very large, withever-changing conditions.However, as we indicated above, the evidence necessary to establish thisrelationship need not be extensive. It is sufficient to show that theemployee worked in the same positions in the same shop as the employeessampled. Here, to establish \”relevancy\” under subsection (B), theSecretary has already shown such a relationship between Hadis andexposure to the target substance sampled in \”Exhibits\” 8A and 8B.3. *Summary*We therefore conclude that the Secretary has shown that \”Exhibits\” 8Aand 8B are \”relevant\” to Hadis under subsection (B) and that Hadis waspossibly exposed to the target substance in his work. Accordingly, weaffirm the judge and conclude that Wyman violated section1910.20(e)(2)(i) by denying the request of Kehoe for access to those\”Exhibits.\”C. *Hadis and \”Exhibit\” 8C*Wyman contends that the judge erred in determining that \”Exhibit\” 8C was\”relevant\” to Hadis under subsection (C), and in concluding that Wymanwas in violation of the standard.\”Exhibit\” 8C is a one-page document showing the results of four area airsamples that were taken to determine the level of the target substance,in the testing of a lubricant, at four different locations near aparticular \”unit.\” Although the heading of the \”Exhibit\”, states\”Wyman-Gordon Company, Worcester and North Grafton, Massachusetts.\”Individual descriptions of each of the four samples gives as thelocation the \”Worcester plant.\” The \”Exhibit,\” which the partiesstipulated was dated February 12, 1975, does not indicate in whichdepartment or departments the sampling was done. One area being sampledwas described as \”[g]eneral room atmosphere at breathing zone level . .. between forging hammer and trimming hammer.\” As noted above, Hadis hadworked in the Forge Department in various positions.In his decision, the judge found that the lubricant was not identifiedand that Wyman did not know if it had ever been used in the WorcesterForge Department.[[31]] Nevertheless, he concluded that the fact thatthe target substance was present in the \”general room atmosphere atbreathing zone level\” near the hammers was sufficient to establishrelevancy to Hadis because \”this was a position or placement that Hadiscould have found himself in.\” In reaching that conclusion, the judgerejected the testimony of Wyman’s manager Woodbury and instead relied oninformation contained in one of the \”Exhibits,\” which is not inevidence. He therefore found Wyman in violation of the regulation fornot providing access.The Secretary contends that \”Exhibit\” 8C is a \”record containingexposure information concerning [Hadis’] workplace or workingconditions\” in the Forge Department and therefore \”relevant\” to Hadisunder section 1910.20(e)(2)(i)(C). She asserts that the sampling for thesubstance was done at the breathing zone level near the hammers. Shecontends that Hadis worked near the hammers, and therefore the records\”concern\” his \”workplace\” or \”working conditions\” and are \”relevant\”under section 1910.20(e)(2)(i)(C).Wyman argues that the Secretary has failed to prove that: (1) the\”Exhibit\” concerns the Forge Department and is therefore \”relevant\”; and(2) a nexus exists between Hadis’ work in the department and exposure tothe target substance.The \”Exhibit\” itself makes no reference to the \”Forge Department.\”[[32]] The Secretary contends that Hadis did work at a location in theForge Department such as the one tested, but the only specificinformation supporting her claim is contained in another \”Exhibit,\” theone upon which the judge relied. As discussed above, the\”Exhibits\” are,by agreement of the parties, not in evidence and do not constitute partof the record. Information in the \”Exhibits\” that does not appear in therecord cannot be relied upon as established fact. We thus conclude thatthe Secretary has not established that the \”Exhibit\” concerned Hadis’\”workplace\” or \”working conditions\” and would therefore be \”relevant.\”Even if we were to conclude that Hadis worked \”between the forginghammer and trimming hammer,\” and the \”Exhibit\” was therefore \”relevant\”under subsection (C), there was no showing of nexus between Hadis andexposure to the target substance because, as noted above, it was notestablished that the lubricant being tested for \”Exhibit\” 8C was everused in the Forge Department.For the reasons above, we find that the Secretary has failed toestablish that \”Exhibit\” 8C contained exposure information \”concerning[Hadis’] workplace or working conditions,\” and therefore she did notestablish that the \”Exhibit\” was \”relevant\” under subsection (C). Havingfailed to prove \”relevancy,\” the Secretary has failed to establish aviolation based on \”Exhibit\” 8C, and we vacate the citation item insofaras it alleged such a violation.D. *Hadis and \”Exhibit\” 11*\”Exhibit\” 11 consists of many pages of results of area air sampling donein the early 1960’s at various machines at the Worcester plant. Only afew pages, including the top one, identify the target substance beingsampled. Several pages mention the \”Forge Shop\” as the site of sampling,but do not refer to the target substance. Although it does not actuallyidentify the Forge Department, one page that does include the targetsubstance states that sampling results were from \”Forgings.\”At the hearing, Wyman’s Safety Manager Woodbury testified that thetarget substance, identified in relation to a small number of samples,was used in the Forge Department only for research and development, notfor production. He stated that the target substance was used in canswhich were struck with hammers on a non-continuous basis from 1959 to1964 for a research and development operation to determine if hammeringwas more effective than forging.The judge noted that Hadis was working in the Forge Department as a\”general forge helper\” and \”oiler\” during the period of 1959 to 1964,when the sampling of the target substance contained in \”Exhibit\” 11 wasbeing conducted. He noted Woodbury’s testimony concerning the exclusiveresearch use of the target substance, but he never found that Hadis hadworked in that research operation. Based on certain sampling results inthe \”Exhibit,\” the judge determined that the target substance \”appears\”to have been used in the Forge Department. The judge went on to concludethat \”[a]s slight as this [exposure] may be, Hadis could. have beenexposed.\” He then determined that the pages of \”Exhibit\” 11 that \”revealsuch an exposure (to exclude all others where the material sampled isunknown), should be made available\” to Kehoe.Wyman argues that the judge erred in his finding of a violation withregard to certain pages because the Secretary has failed to prove that:(1) the \”Exhibit\” is \”relevant\” under subsection (C); and (2) there wasa nexus between Hadis’ work routine in the Forge Department and exposureto the target substance.1. *\”Relevance\” under Subsection (C)*To make a prima facie showing of \”relevance,\” the Secretary must showthat the \”Exhibit\” contains exposure information \”concerning [Hadis’]workplace or working conditions.\” With regard to \”workplace\” or \”shop,\”we note that relatively few of the pages indicate that the samplingresults were taken in the \”Forge Shop.\” However, none of those pagesindicate what the target substance was. Even if we were to conclude thatthe Secretary had shown \”relevance\” under subsection (C) insofar as theone page that refers to the target substance states that it was sampledfrom \”Forgings,\” the Secretary has not proven a violation for thereasons discussed below.2.*Relation Between Hadis and Exposure*Wyman contends that the Secretary has not proven a violation because shehas not established that Hadis in his work could have been exposed tothe target substance. As noted above, Woodbury testified that the targetsubstance was used in the Forge Department only in research anddevelopment, not in production. Hadis’ personnel record, the onlyevidence of his work in the Forge Department, indicates that he workedthere only in a production capacity.The Secretary argues that ”Hadis worked with hammers\” and, because thetarget substance was used as an experiment to show that hammering wascheaper than forging, he therefore was or could have been exposed to thetarget substance. However, there is no support for that assertion in theevidence.[[33]]No showing having been made that Hadis was involved in that researchoperation or would otherwise have been exposed to the target substance,we conclude that the Secretary has not established the requisiterelationship between Hadis’ work routine and exposure to the targetsubstance.For the reasons stated above, we find no violation with regard to\”Exhibit\” 11, and we vacate item 1 of the citation insofar as it allegesa violation for denying access to \”Exhibit\” 11.E.*Summary of Item 1*Based on the discussions above concerning all of Item 1, we affirm item1 insofar as it alleges a violation based on denial of access to\”Exhibits\” 8A and 8B and vacate that item insofar as it alleges aviolation for denying access to \”Exhibits\” 3A, 7, 8C, and 11.IV. *Item 3–Access to Analyses Using Exposure or Medical Records*Item 3 of the citation, as amended, alleged that, by denying thedesignated representative access to analyses using exposure or medicalrecords that concern Hadis’ workplace, Wyman committed another-than-serious violation of section 1910.20(e)(2)(iii)(A). Thatstandard provides:Each employer shall, upon request, assure the access of each employeeand designated representative to each analysis using exposure or medicalrecords concerning the employee’s working conditions or workplace.Section 1910.20(c)(2) defined[[34]] \”analysis using exposure or medicalrecords\” as:[A]ny compilation of data, or any research, statistical or other studybased at least in part on information collected from individual employeeexposure or medical records or information collected from healthinsurance claims records ….(Emphasis added).The Secretary contends that she was proven that Wyman violated section1910.20(e)(2)(iii)(A) because she established that: (1) the studiescomprising \”Exhibits\” 1A, 1B, and 1C, and the report and commentscomprising \”Exhibits\” 2 and 2A are \”analyses using exposure or medicalrecords,\” as defined by section 1910.20(c)(2); and (2) these \”Exhibits\”concern Hadis’ \”working conditions or workplace.\” Wyman contends thatthe Secretary has not established a violation because she has not proveneither of those assertions.A.*\”Exhibits\” 1A, 1B, and 1C*\”Exhibits\” 1A, 1B, and 1C are mortality studies of employees who workedat Wyman’s Eastern Division plants in Worcester and Grafton,Massachusetts. They are based on information in death certificates andpersonnel records of those former employees. The \”Exhibits\” consist oftext and tables analyzing the causes of death in relation to the workarea of the deceased employees, as well as other factors. The ForgeDepartment at the Worcester plant is one of the key work areas considered.\”Exhibit\” 1A, dated August 9, 1976, analyzes the causes of the deaths ofemployees who died between January 1, 1966, and December 31, 1975. Itincludes a chart showing certain causes of death by work area. \”Exhibit\”1B, dated July 6, 1979, analyzes the causes of death for employees whodied between 1976 and 1978 \”Exhibit\” 1C, dated May 11, 1981, does thesame for employees who died in 1979 and 1980.1. *Use of \”Employee Medical Records\”*The first issue raised by Wyman concerning access to these studies iswhether the judge erred in agreeing with the Secretary that deathcertificates, upon which \”Exhibits\” 1A, 1B, and 1C are based, are\”employee medical records,\” and that therefore these \”Exhibits\” are\”analys[e]s using … medical records,\” as defined in section1910.20(c)(2), quoted above.Section 1910.20(c)(6)(i) defines an \”employee medical record\” as:a record concerning the health status of an employee which is made ormaintained by a physician, nurse, or other health care personnel ortechnician, including:(C) Medical opinions, diagnoses, progress notes, and recommendations…. (Emphasis added).a. *Wyman’s Arguments*Wyman contended before the judge, as it does on review, that deathcertificates are not \”employee medical records\” because they: (1) do notconcern the \”health status employee,\” (2) do not contain \”medicalopinions,\” and (3) are distinguishable from medical records under state law.Wyman continues to rely primarily on the deposition of Jerome L.Fielding, M.D., Medical Examiner for Worcester, Massachusetts. Dr.Fielding testified at his deposition, which was entered into the record,that he has completed death certificates in his role as MedicalExaminer, as well as in his role of attending physician for the patientshe has seen in private practice.Addressing the general part of section 1910.20(c)(6)(i) that defines an\”employee medical record\” as \”concerning the health status of anemployee,\” Wyman relies on the testimony of Dr. Fielding that deathcertificates do not concern the \”present health status of the person\”because \”the patient is already dead\” and therefore not able to have a\”health status.\”Wyman further argues that death certificates do not meet the morespecific part of the definition at section 1910.20(c)(6)(i)(C) becausethey are not \”medical opinions.\” Wyman relies on Dr. Fielding’sstatement on direct examination that, although an attending physicianwould complete the \”immediate cause\” item on the certificate bysupplying a \”recognized classifiable medical diagnosis,\” the body wasnot always viewed, as would be necessary for a medical opinion. Hefurther noted that, when the Medical Examiner is the physiciancompleting the \”immediate cause\” item, the information is given in\”relatively simple, non-medical terms.\”In support of its contention that death certificates are distinguishablefrom medical records under state law, Wyman points to Dr. Fielding’sstatement that a death certificate is not a medical record because deathcertificates are public records available from the Town Clerk, and theytherefore lack the confidentiality of medical records, which can beobtained by persons other than the patient only by court order. Wymanasserts that under the applicable Massachusetts statute, deathcertificates are public records, while medical records are not, citingGlobe Newspaper Co. v. Boston Retirement Bd., 446 N.E.2d 1051 (Mass.1983) (medical files not subject to mandatory disclosure under publicrecords statute). Wyman cites court decisions of two other states that,according to Wyman, have ruled that death certificates are not medicalrecords, under their respective state laws.b.*Secretary’s Arguments*The Secretary asserts that she has proven that death certificates are\”employee medical records\” because they concern the \”health status of anemployee\” and contain \”medical opinions.\” To support her claim thatdeath certificates concern the \”health status of an employee,\” theSecretary notes that, on cross-examination during his deposition. Dr.Fielding agreed with the hypothetical proposition posed by theSecretary’s counsel that \”if a doctor says that Smith has died ofdiphtheria, that statement describes something that happened in the pastto Smith while he was living.\”Concerning whether death certificates are \”medical opinions,\” theSecretary’s counsel points to the following admissions of Dr. Fieldingon cross-examination:Q. When you complete a death certificate including the line concerningthe cause of death in your role as Medical Examiner, that representsyour medical opinion as to why this person died, isn’t that true?A. Yes.Q. And when you complete the death certificate in your capacity as anattending physician that also represents your medical opinion as to whythe person died?A. Yes. (Emphasis added).The Secretary also asserts that the state law cases Wyman relies on aredistinguishable from this case because they concern exemptions frompublic disclosure laws, which are read narrowly, while the OSHAregulation here is remedial and must be read broadly to provide adequateaccess. She notes that what is at issue here is a very specificdefinition of \”medical record\” which none of the cited state decisionsconsidered, and which should be read to permit broad access.c. *Judge’s Decision*The judge rejected each of the grounds upon which Wyman relies. Heagreed with the Secretary that a death certificate \”does concern thehealth status of an employee\” because the attending physician or medicalexaminer will determine as nearly as possible \”the cause of death whichwas present necessarily when the person was alive.\” He concluded thatthe cause of death section of a death certificate is a record of theemployee’s health status \”made … by a physician,\” and thus qualifiesas a \”medical opinion\” within the meaning of 29 C.F.R.??1910.20(c)(6)(i)(c), \”regardless of how cursory\” the doctor’sexamination or investigation might be.The judge did not discuss Wyman’s reliance on Massachusetts law andstate court decisions. Instead, he noted that the records access rule is\”all -inclusive\” because:[t]his rule’s access provisions are designed to facilitate the detectionof previously unrecognized occupational health problems: thus thebroadest possible access … must be provided or important informationcould be lost.1980 Preamble, 45 Fed. Reg. at 35,263-64. The judge also stated that a\”‘record’ is defined to encompass any item of information regardless ofthe form or process by which it is maintained,\” citing 1980 Preamble, 45Fed. Reg. at 35,216, For all of those reasons, he concluded that deathcertificates are \”medical records\” under section 1910.20 (c) (6) (i) (c).d.*Discussion*We agree with the judge and the Secretary that death certificates are\”employee medical records\” under section 1910.20 (c) (6) (i) (C)because, as Dr. Fielding admitted on cross- examination in hisdeposition, they: (1) are records \”concerning the health status of anemployee … made or maintained by a physician,\” and (2) contain\”medical opinions.\”[[35]] We note that what is at issue here is a veryspecific definition of \”employee medical record\” at section 1910.20 (c)(6) (i).[[36]] The state court decisions that Wyman cites for the issueof whether death certificates are medical records do not consider thisvery specific definition in the OSHA records access regulations. Rather,they address only state law. Wyman’s attempt to distinguish deathcertificates from medical records on the basis that the certificateseventually become part of the public record likewise must fail becausethe specific definition of \”medical record\” at issue here makes noreference to whether the record is open to the public or not.We also note that inclusion of mortality studies within the category of\”analys[e]s using….medical records\” accords with OSHA’s intent toinclude in the definition of \”analysis using exposure or medicalrecords\” the following: \”[c]harts, graphs, tables, industrial hygienesurveys, evaluations of disease experience, and other summaries andevaluations. . . .\” 1980 Preamble, 45 Fed. Reg. at 35,260. The inclusionof such studies addresses OSHA’s concern that \”our ability to interpretdisease patterns today is often frustrated by the lack of. . . suchmedical data as prior medical histories. . . and baseline physiologicaldata.\” Id. at 35,258. Accordingly, we affirm the judge’s finding thatdeath certificates are \”employee medical records\” under the definitionin section 1910.20(c)(6)(i).2.*The \”Exhibits\” and Hadis’ \”Working Conditions or Workplace\”*Having proven that \”Exhibits\” 1A, 1B, and 1C are based on \”employeemedical records,\” the Secretary must next establish that the \”Exhibits\”\”concern\” Hadis’ \”working conditions or workplace\” in order to show thataccess must be provided under section 1910.20(e)(2)(iii)(A).The \”Exhibits\” describe different work areas in the plant and indicatethat employees were divided for purposes of the studies according to thetime they spent in \”the forge area.\” Hadis’ personnel record establishedthat he worked in the Forge Department during some of the same timeperiods, and in some of the same jobs, as the employees studied. Basedon these facts, the judge concluded that the \”Exhibits\” were analyses\”concerning [Hadis’] working conditions or workplace.\”Wyman contends that none of the death certificates or personnel recordsconcerned Hadis’ \”working conditions or workplace,\” and, therefore, theanalyses based on those records do not concern those conditions or thatworkplace. The Secretary urges affirmance of the judge, relying on theplain meaning of \”workplace,\” as she did in her arguments noted aboveconcerning section 1910.20(e)(2)(i)(C). She also refers to the casesmentioned in note 23 supra, as defining \”working conditions\” as\”hazards.\” As discussed in that note, those decisions concerned aspecific section of the Act that is not at issue here.We conclude, as the judge did, that the Secretary has met her burden ofshowing that \”Exhibits\” 1A, 1B, and 1C concern Hadis’ \”workingconditions or workplace.\” We reject Wyman’s argument that none of thedeath certificates or personnel records concern Hadis’ workplace orworking conditions. Based on the facts that ”Exhibit\” 1C covers Wyman’sForge Department employees who died in 1979 and 1980, and that Hadisworked in that shop and died in 1980, we conclude that Hadis may wellhave been among the anonymous employees who were the subjects of thestudy. Moreover,\”Exhibit\” 1A, which studied employees in the ForgeDepartment who died over the years 1966-1975, and \”Exhibit\”1B. whichstudied employees in the Forge Department who died in 1976 and 1977,also concern Hadis’ \”working conditions or workplace because, accordingto his personnel record. Hadis worked in that shop from 1950 to1971, aswell as in 1974, 1975, and 1977. Therefore, we find that all three\”Exhibits\” are analyses \”concerning [Hadis’] working conditions orworkplace.\”Wyman contends that no violation has been established because the\”Exhibits\” are only statistical studies based on documents, none ofwhich related to the conditions or place where Hadis worked. In support,Wyman notes that there is no indication that the author of the studiesever set foot in the Forge Department or interviewed anyone who had beenthere.This argument has no merit. The regulation clearly includes an analysisbased solely on research of documents, so long as the source documentsthemselves concern the employee’s working conditions or workplace. Wefurther conclude that these mortality studies involve a relationshipbetween Hadis and possible exposure to target substances because theyconcern patterns of disease among Forge Department employees during muchof the more than 20 years that Hadis worked there.3. *Summary*Based on our determinations that \”Exhibits\” 1A, 1B, and 1C are analysesbased on \”employee medical records,\” that they concern Hadis’ \”workingconditions or workplace,\” and that they concern exposure possiblyencountered by Hadis, we affirm Item 3 insofar as it alleged that Wymanviolated section 1910.20(e)(2)(iii)(A) by denying Kehoe access to\”Exhibits\” 1A, 1B, and 1C.B. *\”Exhibits\” 2 and 2A*Wyman argues that the judge erred in finding that, by not providingKehoe with access to \”Exhibits\” 2 and 2A, it was in violation of section1910.20(e)(2)(iii)(A).\”Exhibit\” 2 is an industrial hygiene survey and report, dated January30, 1978, that studied factors that could have possibly caused theconditions identified in an earlier study of Wyman’s employees. The\”Exhibit\” focussed on the forging operations at Wyman’s plants inWorcester and Grafton, Massachusetts, and it gave primary attention tothe materials and compounds used and the conditions in the forgedepartments in the 1950’s and 1960’s. The study contains tables showingresults of personal and area air sampling for particular targetsubstances in the Forge Department at Worcester, including Tables C-2and C-8, which contain personal sampling results that identify theemployee by general job title and operation, and Tables C-1 and C-2,which contain area sampling results. The results in these Tables areanalyzed on specific pages in the \”Exhibit.\”\”Exhibit\” 2A is a memorandum, dated March 30, 1978, commenting on\”Exhibit\” 2. Referred to in this memorandum and appended to the back ofit are two specific tables from \”Exhibit\” 2: Table C-1, which containsarea sampling results; and Table C-3, [[37]] which contains personalsampling results, identified by general job title and operation, andarea sampling results for target substances.1.*At Least Partial Basis in \”Individual Employee Exposure … Records\”*To sustain her burden of proving the alleged violation with respect to\”Exhibits\” 2 and 2A, the Secretary had to show that each of the two\”Exhibits\” is an \”analysis using exposure or medical records.\” As notedabove, this term is defined at section 1910.20(c)(2) as:[A]ny compilation of data, or any research, statistical or other studybased at least in part on information collected from individual employeeexposure or medical records ….(Emphasis added). The Secretary maintains that she has met that burdenbecause the \”Exhibits\” themselves refer to and incorporate \”individualemployee exposure … records\” including personal and area sampling results.Wyman first contends here, as it did before the judge, that the word\”individual\” modifies \”employee\” rather than \”records\” and that,therefore, area sampling is not a proper basis for an analysis under thedefinition. Nor, in Wyman’s view, is personal sampling such a properbasis unless it specifically identifies particular employees. Inaddition, Wyman argues that, even if the \”Exhibits\” here are consideredto contain references to \”individual employee exposure records\”,[[38]]\”a careful reading of\” \”Exhibits\” 2 and 2A would show that they do notmeet the full definition above because the \”analysis\” in each of thesedocuments was not, as the regulation requires, \”based at least in part\”on the sampling results.In his decision, the judge rejected those arguments, describing thedefinition at section 1910.20(c)(2) as including analyses based on\”practically any type of workplace monitoring including personal andarea sampling.\” He concluded that the Secretary proved that the\”Exhibits\” are \”analys[e]s using exposure . . . records\” under thedefinition quoted above.First of all, we note that both \”Exhibits\” contain and discuss personalsampling results. We conclude that, contrary to Wyman’s unsupportedcontention, the language in section 1910.20(c)(2) does not require thatfor a study to be an \”analysis using exposure or medical records,\” thepersonal samples upon which it is based must identify the employee byname. We note that OSHA has stated that it \”anticipates that in practicemost analyses would not identify specific employees . . .\” 1980Preamble, 45 Fed. Reg. at 35,274. Although that statement was morespecifically directed to 29 C.F.R. ? 1910.20(e)(2)(iii)(B), whichrequires employers to \”assure that personal identifiers are removedbefore access is provided\” to \”an analysis which reports the contents ofemployee medical records,\” than to an analysis that reports the contentsof employee exposure records, it would be inconsistent to require theinclusion of personal identifiers in analyses based on exposure recordswhile requiring their deletion from analyses based on medical records.Having determined that \”Exhibits\” 2 and 2A are based in part on personalsampling results, we need not address Wyman’s contention concerning areasamples. It is sufficient under the definition at section 1910.20(c)(2)that the \”Exhibits\” are \”based at least in part\” on personal samplingresults. We note that \”Exhibits\” 2 and 2A include and discuss thereferenced area and personal sampling results. We therefore concludethat \”Exhibits\” 2 and 2A qualify as \”analyses using exposure records\”within the meaning of section 1910.20(e)(2)(iii)(A).2.*The \”Exhibits\” and Hadis’ \”Working Conditions or Workplace\”*The next issue is whether the judge erred in concluding that theSecretary has met her burden of establishing a prima facie showing that\”Exhibits\” 2 and 2A are analyses \”concerning the employee’sworking.conditions or workplace.\” \”Exhibits\” 2 and 2A concern theWorcester Forge Department, which was the shop or \”workplace\” of Hadisfor nearly two and a half decades. The analyses contain many areasampling results, as well as personal sampling results, taken from thatDepartment. For these reasons, we affirm the judge and conclude that theanalyses concern Hadis’ \”working conditions or workplace.\”3. *Relation Between Hadis and Exposure*Wyman argues that the Secretary has not established the requisiterelationship between Hadis’ job duties and exposure to a toxic substanceor harmful physical agent. it relies on the testimony of its witnessesWoodbury and Murphy, who stated that the Forge Department is very large,and that the environment and materials used there are \”constantlychanging.\” The judge concluded that the Secretary had established thatHadis’ work routine did relate to exposure to harmful substances, basedon the area samples analyzed in the \”Exhibits.\”We agree with the judge that the Secretary has established the necessaryrelation between Hadis’ work duties and exposure to harmful substances.The \”Exhibits\” themselves are studies of employees’ exposure to varioustarget substances in the Forge Department for the time periods thatcover most of Hadis’ career in that department. Furthermore, some of thepersonal samples upon which the studies are based were taken from otheremployees, who worked in the Forge Department as \”lubricators,\” or\”oilers,\” positions Hadis had held during roughly that same time period.At least two tables, C-1 and C-2, contain samples taken in 1977. Hadisbriefly worked in the Forge Department during that year, but not in themonths that the samples were taken. We therefore conclude that theSecretary has proven that \”Exhibits\” 2 and 2A concern Hadis’ workingconditions or workplace because these \”Exhibits\” present detailed studyand comment on aspects of the Forge Department for much of the time thatHadis worked there and for at least one job that Hadis held there.4. *Summary*Having found that \”Exhibits\” 2 and 2A, which each contain personalsampling results are \”based at least in part on individual employeeexposure…records,\” and that they concern Hadis’ \”working conditions orworkplace,\” we affirm item 3 of the citation insofar as it alleges aviolation of section 1910.20(e)(2)(iii)(A) based on Wyman’s failure toprovide the designated representative with access to \”Exhibits\” 2 and2A. [[39]]C. *Summary of Item 3*Based on the discussions above, we affirm item 3 in the citation, whichalleged an other- than-serious violation of section1910.20(e)(2)(iii)(A) based on Wyman’s denial of the requested access to\”Exhibits\” 1A, 1B, 1C, 2, and 2A.V.*Order*For the reasons set forth above, we vacate item 1 insofar as it allegedan other-than serious violation of section 1910.20(e)(2)(i) based onfailure to provide the designated representative with access to\”Exhibits\” 3A, 7, 8C, and 11.We affirm: (1) item 1 insofar as it alleged an other-than-seriousviolation of section 1910.20(e)(2)(i) based on failure to provide thedesignated representative with access to the employee exposure recordsidentified as \”Exhibits\” 8A and 8B; (2) Item 2, which alleged an other-than-serious violation of section 1910.20(e)(2)(ii) based on failure toprovide access to medical records of Emco and Hadis: and (3) item 3which alleged an other-than-serious violation of section1910.20(e)(2)(iii)(A) based on failure to provide the designatedrepresentative with access to the analyses using exposure or medicalrecords that are identified as \”Exhibits\” 1A, 1B, 1C, 2, and 2A. [[40]]The Secretary proposed no penalty, and we assess none.Edwin G. Foulke Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 20,1991————————————————————————SECRETARY OF LABOR,Complainantv.WYMAN GORDON COMPANY,Respondentand United Steelworkers of America,Local 2285,Authorized EmployeeRepresentativeOSHRC Docket No. 84-785_DECISION & ORDER_Appearances:For the complainant:Albert H. Ross,Regional SolicitorU. S. Department of LaborBy:_David A. Snyder,_ Esq.For the respondent:_David P. Grossi,_ Esq.Bowditch & Dewey Worcester,For the employee representative:Jonathan P. Hiatt, Esq.Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C._Statement of Proceedings_:The Record Access rule, became effective in August 1980. This is a\”regulation aimed primarily at possible detection, over a long period,of significant risks\” caused by toxic substances or harmful physicalagents not yet covered by health standards. Under this rule, workers aregiven a major role in the detection and solution of health problemsfaced in the workplace. _Louisiana Chemical Ass’n. v. Bingham, _657 F.2d777 (1981) at 784. Generally, the employees or their designatedrepresentatives are to be allowed access to medical and exposure recordsand the analysis of this data if any are maintained by their employers.The representatives of the estates of two former employees of therespondent, Wyman-Gordon Company, a manufacturer of aircraft parts withoffices in North Grafton, Massachusetts, requested the release ofmedical and other records concerning the decedents who may have beenexposed to toxic substances. Respondent has refused access to some ofthese records.Following an investigation by the Occupational Safety and HealthAdministration of the U. S. Department of Labor (OSHA or complainant)over the period June 27 to July 3, 1984, it issued[[1\/]] a citation onJuly 16, 1984, alleging a non-serious[[2\/]] violation of threeregulations codified at 29 C.F.R. ?? 1910.20(e)(2)(i); .20(e)(2)(ii)(B);and as amended on December 21, 1984, .20(e)(2)(iii)(A). Briefly theserequire an employer, upon request by an employee or his designatedrepresentative, to grant access to1. Employee exposure records [1910.20 (e) (2) (i)];2. Employee medical records[1910.20 (e) (2) (ii) (B)]; and3. Analysis using exposure or medical records concerning the employee’sworking conditions or workplace [1910.20 (e) (2) (iii) (A)].Respondent by letter dated August 6, 1984, contested this citation.Stipulations of procedural facts and briefs were filed in January 1985,and a prehearing conference[[3\/]] was held on February 13, 1985.Respondent sought to sever the proceedings, by motion filed January 2,1985, to first determine preliminary issues such as1) the standing of the employees’ representatives;2) its Fourth Amendment rights; and3) whether the regulations are validbefore any of its records –described as voluminous–would be examinedto determine if any are relevant, as that term is described in thesubject regulations, and access is to be ordered.Respondent agreed not to press its request for severance thus allowingall questions to be resolved in one decision and avoiding piecemealappeals and possible remands.The examination of respondent’s records took place over a period fromMarch to July 1985, and, following a second prehearing conference onJuly 12, 1985, further stipulations and issues to be tried were filed.Hearing was held on September 18, 1985, to develop the factualbackground and the meaning of those records which the parties disagreeas to whether they are relevant and thus encompassed within the citedregulations. Post-hearing and final memorandums were filed by December2, 1985, including the record of the deposition taken on October 4, 1985(filed November 6, 1985) of Dr. Jerome L. Fielding, a medical examiner,on the question of whether a death certificate is a medical recordwithin the contemplation of these regulations requirements._The Basis of the Complaint and the Issues:_The deceased, Miklos Hadis and William G. Emco, both were employed byrespondent for 30 years, each retiring in 1979. Both died before August21, 1980. Their wives are administering their estates and each wiferetained the same law firm to represent them authorizing it to gainaccess to the records here. (Stips. 8, 9, 10, 17, 18 and 19)That law firm requested medical records, which respondent has, andemployee exposure records and the analysis of those records, of whichthe respondent disputes the relevancy, concerning Mr. Hadis. (Stips. 11,12, 14) Respondent did not allow access by the law firm to the recordsand analysis. (Stip. 15)The same pattern appears concerning Mr. Emco (Stips. 23 and 24), but norequest in writing was made by the law firm for the exposure andanalysis records (Stip. 21) as it had done concerning Mr. Emco’s medicalrecords (Stip. 20). Oral requests were made, however (Stip. 22).Neither the law firm nor OSHA advised respondent as to 1) the cause ofthe employees’ deaths; 2) the relevance of the requested records; or 3)the purpose of the request or the use to be made of them.Complainant has sought access to these records by the law firm fromrespondent. Respondent has denied this access. Complainant did notobtain a warrant and respondent demanded none. (Stips. 16, 25)Approximately one month after the deaths of Messrs. Hadis and Emco inJuly 1980, the standards on which this action is based became effective,namely, August 21, 1980. See 29 C.F.R. ?1910.20(j) .The issues areI) Do the regulations apply to the requests made concerning employeeswho died prior to the effective date;II) Are respondent’s Fourth Amendment rights a justifiable issue;III )Are certain records \”analyses\” using exposure or medical recordsand have these been properly requested in the case of Mr. Emco; andIV) If so, are the records _relevant _to Messrs, Hadis and Emco as thatterm is defined, or described, at. 29 C.F.R.? 1910.20(e)(i)(A)-D)._Discussion and Conclusions:_I) As to the application of the regulation to these former employeescomplainant relies on the regulation’s definition of \”employee\” as itapplies to this situation, 29 C.F.R. ?1910.20(c)(4):\”Employee\” means a current employee, a former employee, or an employeebeing assigned or transferred to work where there will be exposure totoxic substances or harmful physical agents. In the case of a deceasedor legally incapacitated employee, the employee’s legal representativemay directly exercise all the employee’s rights under this section.The former employees ‘widows are \”employees\” under this definition aslegal representatives; they may exercise their husbands’ rights, andthereby authorize designated representatives [29 C.F.R. ?1910.20(c)(3)]to gain access to the records, according to complainant.Respondent argues that under the effective date provision, 29 C.F.R.?1910.20(j), no employer has an obligation to provide access respectinga former employee who died prior to that effective date, August 21,1980. That provisions reads:This section shall become effective on August 21, 1980. All obligationsof this section commence on the effective date…Therefore, respondent contends, the employee’s right and, I suppose, anyderivative right therefrom did not arise until August 21. Since bothMessrs, Hadis and Emco retired and died before that date, no right toaccess may exist in their respective representatives.Otherwise, respondent contends, every employer would be obligated torespond to every request on behalf of any person it ever employed. Thisis clearly contrary to section 29 U.S.C. ? 657(d) requiring that allinformation to be obtained form an employer under the provisions of theAct should be with minimum burden.The difficulty in respondent’s analysis is that the regulation–in exactterms–grants to the legal representative access by allowing that personto \”directly exercise all of the employee’s rights.\” This right is notderivative or dependent on an employee surviving the effective date asit would have been had the definition of \”employee\” not included thecapacity of the legal representative, cf., _Porter_ v. _Resor,_ 415 F.2d764 (1969), but the definition establishes the legal representative asan independent actor.This course OSHA found necessary to pursue in its consideration of theregulations because… The records of deceased and incapacitated workers are obviouslyrelevant to occupational health research. Therefore, the rule explicitlyapplies to records relevant to deceased and legally incapacitated employees.45 Fed. Reg. 35261.This interpretation casts no more additional burden on employees thanalready created should the definition be read to restrict itsapplication only to those current or former employees alive on theeffective date; i.e., by allowing the legal representative direct accessdoes not impose any retroactive effect.OSHA intended to limit the regulation’s scope and burden.[[4\/]] No newrecords must be created; no obligation to monitor employee exposures arerequired; and no format of the records are prescribed. Just that shouldcovered records be in existence, they must be preserved and accessgranted. See 45 Fed. Reg. 35257, and 29 C.F.R. ? 1910.20(b)(3) applyingthe regulation only to those records \”made or maintained in any manner.\”OSHA considered the point that the regulation appears to penalizeconscientious employers (who compile these data bases) but did notaccept it because of the main thrust of the regulation, namely, todetect occupational disease. And old, even ancient, records may bevitally important. OSHA intended to make as much use as possible ofrecords going back beyond the enactment of the Act itself rather thantake only a prospective approach thereby forcing a lapse of 20 or 30years to recreate this data base. 45 Fed. Reg. 35258-59.Thus, I conclude that the definition of \”employee\” does not excludethose legal representatives of employees who died prior to the effectivedate; and that 0SHA properly justified the retroactive effect of theregulation and minimized the burden imposed by thisapplication._Daughters of Miriam Center for the Aged v. Mathews,_ 590F.2d 1250 (1978) at 1259-60.II) As noted above, respondent has raised the Fourth Amendment as adefense. The regulation, on its face, is sustainable against FourthAmendment attack. _Louisiana Chemical Association, et al. v. Bingham andMarshall, _550 F. Supp. 1136 (1982), affirmed 5th Cir., May 7, 1984, No.83-4044, BNA 11 OSHC 1922. OSHA \”must respect the Fourth Amendmentrights of the plaintiff;\” _Louisiana Chemical Association,_ above, asthese apply to documents and records, citing _Marshall_ v. _Barlow’s,Inc.,_ 436 U.S, 307 (1978) at 324, footnote 22.When the OSHA Compliance Officer Robert Bak made his inspection on June27, 1984, resulting in the issuance of this citation, he met withrespondent’s Manager of Safety and Industrial Health, Philip Woodbury,and showed him the complaint of the requestor for the data covered by 29C.F.R. ? 1910.20 concerning the deceased employees.This complaint wasnot put into evidence here. He was told that respondent was fully awareof the requests for records and they were in the custody of respondent’slawyers. The record shows no further attempts by OSHA to inspect theserecords and, as a result, Mr. Bak, in the course of this inspection,examined no records whatsoever. (Tr. 16-17)Mr. Woodbury testified that at no time was respondent given anyinformation from either the attorneys representing the deceased’sestates or OSHA concerning the background, work histories or workplacesof the deceased (Tr. 38).Complainant stipulated that it seeks only that access to the data begiven to the legal representatives (Stips. 16 and 25) and that, prior tothe issuance of the citation, it never sought to review the records atissue (Complainant’s Reply Brief, filed January 31, 1985, page 2). It isalso stipulated that the purpose for the access was not told to respondent.Before the arguments of the parties are reached concerning the extent towhich the respondent’s records are protected by the Fourth Amendment[[5\/]] in what might be termed as a private search in contradistinctionto one sought by a governmental agency, as argued, it must be determinedfirst whether complainant has so perfected its position here to defendagainst these contentions.In my opinion, the stage has not been set properly.The regulation requires that an employer (1) grant access to employeesor their representatives of (2) medical and other relevant records itmaintains. If it fails to do so, it has violated the regulation and itmay be cited. Thus, OSHA enforces the employees’ right to access byrequiring the data _encompassed by the regulation_ to be made available.Complainant argues that the standard was intended to be self-enforcing(Brief, January 15, 1985, page 8) and prior to the issuance of thecitation, OSHA never determined, and freely admits this, whetherrespondent denied access to any record within the ambit of theregulation. But then, how could it be known whether a citation shouldissue. Mere and only denial of access does not appear to amount to aviolation.And contrary to complainant’s position here, the preamble does indicatethat the promulgation of this standard raises unanswered questions inthe circumstance where an employer denies access to OSHA as opposed toan employee. \”The rule may not be self-enforcing\” 45 Fed. Reg. 25252.The future law, it goes on, will have to depend on the particularcircumstances.No argument is advanced why this situation should be treated differentlythan any other alleged violation of a regulation or standard. OSHA hereis attempting to enforce a requirement that access to certain records begiven to representatives of employees.Yet, Compliance Officer Bak did not press to examine respondent’srecords, which he knew were in the custody of its attorneys to determinewhether the denial of access was invalid. Had he so demanded and beenrefused, a warrant could have been sought, _Marshall v. Barlow’s, Inc.,_above, the records studied, and a citation issued as to that data uponwhich the parties disputed inclusion by the regulation.[[6\/]]That regulation is as specific as possible in delimiting the recordsaccessible. See generally the definition section of the regulation 29C.F.R. ? 1910.20 (c) and the outline of \”relevancy\” with regard toexposure records, 29 C.F.R. ? 1910.20 (e)(2)(i)(A)-(D). Decision on thatquestion is relatively uncomplicated. But that point was not reached.[[7\/]]Respondent did not demand that a warrant be obtained (Stips. 16 and 25).It had as the facts show, no reason to because no search was sought. Andit is not allowed within the statutory framework for the complainant toissue a citation based _solely_ on an employee complaint although thatmay well serve as grounds for obtaining a warrant. 29 U.S.C. ? 658(a)requires and inspection or investigation as the basis for citations, andsee_Marshall v. Sun Petroleum Products, Co.,_ 622 2.Fd 1176 (1980) at1190 (end of footnote 3) where Judge Pollak, in the course of hisdissent, points out that the legislative history of the Act shows thatthe Secretary is the channel created to guard against frivolouscomplaints and hence an inspection or investigation must be conducted.An inspection being required and not done here, it must follow that theissue of the respondent’s Fourth Amendment rights is premature.Further, since the inspection was incomplete, complainant would have noevidence to attempt to prove that the access denied by respondent was torecords within the regulation’s scope and, therefore, the citation mustbe dismissed as the order below provides.The examination conducted during the course of this proceeding was indiscovery to determine if any record would be within the regulation. Itwas not done as a substitute for the pre – citation inspection. Such apossibility and result was intentionally circumscribed at the prehearingconference of February 13, 1985. See the order following thatconference. It was only for the sake of expedition that respondentagreed to the discovery procedure.Finally, complainant’s argument that respondent has no Fourth Amendmentprotections here because what is sought is a private search by the legalrepresentative as opposed to a government inquiry does not appear to bewell taken. (Complainant’s Brief, January 15, 1985, page 12)The Fourth Amendment protects against unreasonable intrusions by thegovernment but not against the conduct of private individuals. _Burdeauv. McDowell,_ 256 U.S. 465, 41 S. Ct. 574 (1921). And the private searchwould be beyond the Amendment _only i_f the private party is in no wayeither an instrument or agent to the government. _Coolidge v. NewHampshire,_ 403 U.S. 443, 487, 91 S.Ct. 2022, 2048-49 (1971).But here there is no evidence of any private search although the legalrepresentative knew of the existence of at least one document that mightbe within the scope of the regulations and subject to access (theBurgess Report). And OSHA’s relief sought is not to permit a privateinspection and search of respondent’s records. Rather, it is to forcerespondent to give over access of whatever may be required under theregulation. That is necessarily the result if this citation is affirmed.OSHA is serving its own purpose. It seeks compliance with the regulationdesigned, as all regulations and standards are, for the protection ofthe workforce. 29 U.S.C {syms} 641(b), (b)(1), and (b)(12). Thus ,thisproceeding is one of pure governmental action and the full panoply ofFourth Amendment rights apply. It may not be masked behind the guise ofa \”private\” search, that is, OSHA’s claim that it has no interest in therecords, only that access be afforded. In such a case, if no record issubject to the regulation and an employer denies access to the employeeof OSHA, the citation would be affirmed because of the denial but therespondent would be required to do nothing.To avoid this, OSHA mustallege that access was denied to allegedly relevant records. Denial ofaccess alone is not actionable. Cf., _Corngold v. U.S.,_ 367 F.2d 1 at 5(1966) where a statement from _Taglavore v. U.S.,_ 291 F.2d 262, at 266,is quoted, \”[t]he violation of a constitutional right by subterfugecannot be justified….\”The examination by OSHA of the disputed records was required and– uponrefusal by respondent to allow that–could only have been accomplishedunder the authority of a warrant.In recapitulation:I) Denial of access alone by an employer is not actionable since eachsubsection of the regulation requiring access specifies with as muchparticularity as is possible which records and under what conditionsaccess may be allowed. Hence, each of the particular subsections(medical or exposure records or the analyses of these)_by its terms_requires–for the allegations of a citation to be properly framed–that(1) access was denied to (2) particular records.Access to pages 14 through 33 is restricted to the Commission andreviewing courts pursuant to the Administrative Law Judge’s order datedFebruary 10, 1987 These pages have been omittedif the documents are to be made accessible, they will have to be soadjusted.ORDERBased on the findings of fact and conclusions of law reached afterconsidering the evidence and the parties’ arguments and proposals, whichto the extent shown are adopted or rejected as having insufficientsupport in the preponderance of the evidence or precedent, it is ORDEREDthat:The citation, issued July 16, 1984, as amended on December 21, 1984,alleging nonserious violation of 29 C.F.R. ? 1910.20(e)(2)(i) [access toemployee exposure records]; .20(e)(2)(ii)(B) [access to medical recordsby the designated representative]; and .20(e)(2)(iii)(A) [access toanalysis of exposure or medical records] be and it is hereby vacated.DAVID J. KNIGHTJudge, OSHRCDated: February 13, 1987 Boston, Massachusetts————————————————————————FOOTNOTES:[[1]] Subsequent to this citation and complaint, the Secretary revisedthis regulation, as discussed below, and redesignated it\”1910.20(e)(2)(i)(A)\”. Access to Employee Exposure and Medical Records:Final Rule, 53 Fed Reg. 38,140, 38,165 (1988) (1988 Preamble and\”1988 Rule\”)[[2]] The United Steelworkers of America, Local 2285, requested and wasgranted party status in January 1985. Although it was notified of theprehearing conferences and the subsequent evidentiary hearing, it didnot appear at either. Nor has it filed a brief for this case.[[3]] The judge granted Wyman’s motion to restrict access to pages 14 to33 of his decision because they contain material that he consideredconfidential. There is no need to restrict access to our decision herebecause we maintain the necessary confidentiality by not including anysensitive information.[[4]] Wyman has stated that, unlike items 1 and 3, it has no argumentsparticular to item 2, and it will assure that access has been or will beprovided to the medical records if its contentions regarding the entirecitation are rejected.[[5]]Commissioner Wiseman notes that, in his opinion, the purpose of therecords access regulation is \”to assist health research in discoveringthe causes of occupational disease.\” 1980 Preamble, 45 Fed. Reg. at35,261. The request here is apparently for the purpose of privatelitigation, but the record is not entirely clear on this point.Commissioner Wiseman would question whether it is appropriate for theSecretary to prosecute an employer for failing to provide access torecords where the purpose of the request was the furtherance of privatelitigation, particularly when the same information usually can beobtained through pretrial discovery.[[6]]Wyman contends that because the records must be made availablewithout any showing of need or relevance, such an obligation would becontrary to the spirit and letter\” of section 8(d) of the Act, 29 U.S.C.? 657(d), which provides that \”[a]ny information obtained by theSecretary…shall be obtained with a minimum burden uponemployers….\”In response, the Secretary correctly notes that section8(d) of the Act is irrelevant here because it concerns only informationprovided to the Secretary of Labor herself, the Secretary of Health andHuman Services, or a State agency, not information provided by anemployer to its own employees or their representatives.[[7]] In its argument that the obligations would be limitless, Wymanappears to be attacking not only the access regulations at issue here,but also the regulations that set retention periods for records. As theSecretary notes, the requisite access is limited by the retentionperiods of with a few exceptions, at least: 30 years for employeeexposure records and analysis using medical and exposure records (29 C.F. R. ?? 1910.20 (d) (1) (ii) and (iii)); and duration of employmentplus 30 years for employee medical records (29 C. F. R. ? 1910.20 (d)(1) (i)). Those periods were found to \”pose little additional burden\” inlight of \”existing widespread long term retention of records.\”1980Preamble, 45 Fed. Reg at 35,271. Furthermore, the Secretary determinedthat the 30- year retention period \”is reasonable in light of thelatency periods associated with occupational diseases\” Id. at 35,270 andis consistent with retention periods for recordkeeping under existingOSHA health standards and the Toxic Substances Control Act. Id. at 35,268.[[8]] Section 9(a) of the Act provides:If, upon inspection or investigation, the Secretary or his authorizedrepresentative believes that an employer has violated a requirement of… any standard … or … regulations … he shall … issue acitation to the employer.The judge referred to the compliance officer’s visit as an \”inspection.\”However, because the compliance officer did not view any documents, weconsider it to be more appropriately called an \”investigation.\” Assection 9(a) provides, the Secretary’s authority to issue citations canbe based on either. See H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 816-17(5th Cir. 1981).[[9]] Wyman claims that it had raised the issue itself in its prehearingmemorandum and at the hearing. However, on the pages that it points toin its prehearing memorandum, Wyman only challenges the validity of therecords access rules on the ground that they authorize warrantlesssearches that are unreasonable, in violation of the Fourth Amendment.Nor do the cited pages of the hearing transcript allege an insufficientinvestigation under section 9(a) of the Act. Rather, they concern onlyWyman’s argument that none of the records and analyses in question havebeen proven \”relevant.\” Therefore, we find that the issue of thesufficiency of the investigation under section 9(a) of the Act was firstraised in this case by the judge in his decision.[[10]] We note that the record shows, in a document filed by Wyman inresponse to the Secretary’s prehearing request, that when Kehoe sentWyman a letter soon after its first request for access to the recordsand analyses, Kehoe specifically asked for a particular analysis usingexposure or medical records of Wyman’s employees. That analysis becameone of the \”Exhibits\” in this case.[[11]] The regulation provides that:[t]he log and summary of all recordable occupational injuries andillnesses (OSHA No. 200) …shall, upon request, be made available bythe employer to any employee, former employee, and to theirrepresentatives….[[12]]That regulation provides:A covered employee who is required to be tested under subpart C[entitled \”Post- Accident Toxicological Testing\”] or D and who is takento a medical facility for observation or treatment after an accident orincident shall be deemed to have consented to the release to FRA of thefollowing ….[[13]]The Secretary relies here, as she did in Monfort, on decisions ofthe United States Supreme Court finding that employers committed unfairlabor practices by failing to disclose to the unions representing theiremployees information relevant to the collective bargaining process.E.g., NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967). As we statedin Monfort, those decisions are inapposite because they do not raiseFourth Amendment concerns and are based on the \”give and take\” of thecollective bargaining process, which is not at issue in this case. 14BNA OSHC at 2057-58, 1991 CCH OSHD at pp. 39,182-83. See NLRB v. HolyokeWater Pwr. Co., 778 F.2d 49, 52 (1st Cir 1985).[[14]] The OSHA 101, entitled \”Supplementary Record of Occupationalinjuries and Illnesses,\” requires much more information than the summaryOSHA 200 such as detailed descriptions of what the employee was doingwhen injured, how the accident occurred, what the injury or illness was,and what object or substance injured the employee.[[15]] The role of employers in assuring communication of safety andhealth information to employees is also addressed in various sections ofthe Act, including sections 6 (b) (B) (v), 6 (b) (7), 6 (d), and 9 (b),respectively 29 U. S. C. ?? 655 (b) (6) (B) (v) (notice to employees oftemporary variance order application), 655 (b) (7) (use of labels orother appropriate forms of warning). 655 (d) (notice to employees ofapplication for variance rule or order), and 658 (b) (posting of citation).[[16]] As mentioned in note 1 above, this regulation was revised in1988. 1988 Rule, 53 Fed. Reg. at 38,165.[[17]] As noted above, quotation marks have been placed around the\”Exhibit\” designation of the documents at issue because, by agreement ofthe parties and the order of the judge, these records were not admittedinto evidence and are therefore not exhibits within the common legalmeaning of that term.[[18]] Among the revisions OSHA made to this regulation in 1988 were:(1) the deletion of subsection \”(C)\” and (2) the redesignation ofsubsection \”B\” as subsection (A)(2) and its expansion, to read:In the absence of such directly relevant records, such records of otheremployees with past or present job duties or working conditions relatedto or similar to those of the employee to the extent necessary toreasonably indicate the amount and nature of the toxic substances orharmful physical agents to which the employee is or has been subjected ….1988 Rule, 53 Fed. Reg. at 38,165. The Secretary explained thatsubsection \”(B)\” had been revised to avoid \”potentially large numbers ofduplicative records.\” 1988 Preamble, 53 Fed. Reg. at 38,155. She gave nospecific explanation for deleting subsection \”(C).\”[[19]] To address concerns of confidentiality expressed by the parties,we will use, throughout this decision, the term \”the target substance\”to describe the various substances for which sampling results arecontained in the \”Exhibits\” at issue.[[20]] In1988, the phrase \”exposure to toxic substances or harmfulphysical agents\” was removed from the general introductory provision,and words to the same effect were inserted in section 1910.20(c)(5)(i),(ii), and (iv). 1988 Rule, 53 Fed. Reg. at 38,163[[21]] The term \”employee\” is defined at section 1910.20(c)(4) as: \”acurrent employee, a former employee, or an employee being assigned ortransferred to work where there will be exposure to toxic substances orharmful physical agents….\”(Emphasis added)[[22]] The Secretary also points to the hazard communication standard’sdefinition of \”workplace,\” at 29 C.F.R. ?1910.1200(c), as \”anestablishment, job site, or project, at one geographical locationcontaining one or more work areas.\” According to the Secretary, therecords access rules should be construed together with the hazardcommunication standards, citing Consolidated Aluminum Corp., 9 BNA OSHC1144, 1156, 1981 CCH OSHD ? 25,069, p. 30,976 (No. 77-1091, 1980)We note that, unlike the regulations at issue here, the hazardcommunication standard includes in its definitions at section1910.1200(c) different types of working spaces, such that \”workplace\”under that standard can mean something larger than the ”shop\”interpretation that the Secretary advocates in this case. That isbecause the hazard communication standard has a separate term, \”workarea,\” which is defined in section 1910.1200(c) as \”a room or definedspace in a workplace where hazardous chemicals are produced or used, andwhere employees are present\”. See Super Excavators, Inc., 15 BNA OSHC1313, 1316 n.5, 1991 CCH OSHD ? 29,498, p. 39,804 n.5 (No. 89-2253,1991).[[25]] The Secretary claims that, in requiring that showing, the judgeerred in \”engrafting onto\” the \”relevancy\” requirement of subsection (B)and (C) a separate requirement that is not there. As discussed below, weview the issue of \”relevancy\” under the regulation to be separate fromthe question of what relationship existed between the employee’s jobduties and exposure to the target substance.[[26]] These \”[s]cope and application\” provisions read as follows:(1) This section applies to each employer who makes, maintains,contracts for, or has access to employee exposure or medical records, oranalyses thereof, pertaining to employees exposed to toxic substances orharmful physical agents (2) This section applies to all employeeexposure and medical records, and analyses thereof, of [such] employees ….(Emphasis added). See 1988 Rule, 53 Fed. Reg. at 38,163 (subsection (2)amended, as bracketed portion shows, while meaning from previous wordingnot changed). See also 1988 Preamble, 53 Fed. Reg. at 38,143 (notingthat \”[t]he 1980 rule applies to the exposure and medical records of allemployees exposed to toxic substances and harmful physical agents\”).[[27]] See, e.g., Richards v. United States, 369 U.S. 1, 11 (1962),cited in Simplex Time Recorder Co., 12 BNA OSHC 1591, 1594 n.6, 1984-85CCH OSHD ? 27,456, p.35,569 n.6 (No. 82-12, 1985) (two paragraphs ofNational Fire Protection Association standard read to be consistent);Spot-Bilt, Inc., 11 BNA OSHC 1998, 2000-01 1984-85 CCH OSHD ? 26,944,p.34,551 (No. 79-5328, 1984) (purpose of assuring adequate exits\”pervades section 1910.36, with section 1910.36(b)(4) construedaccordingly).[[28]] Because we have already found that the Secretary has notestablished that \”Exhibit\” 7 was \”relevant\” under subsection (B), wehave already concluded that she has not established a violation based onthat \”Exhibit\” and need not discuss the \”Exhibit\” here.[[29]]We note that, in some cases, the Secretary’s failure to proveemployee access has been the dispositive factor leading to theCommission’s vacating of the citation item at issue. E.g., Armour FoodCo., 14 BNA OSHC 1817, 1824, 1987-90 CCH OSHC ? 29,088, p. 38,886 (No.86-247,1990); Carpenter Contracting Corp., 11 BNA OSHC 2027, 2030-31,1984-85 CCH OSHD ? 26,950, pp. 34,563-64 (No. 81-838, 1984).[[30]]The judge’s determination that Hadis worked in the job sampled inthe Forge Department \”during the sampling\” is inconsistent with the factnoted above that his only work in 1978 and 1979 in the Forge Departmentwas as a manipulator operator.[[31]] Wyman and the Secretary had stipulated that \”[b]ecause thelubricant is not identified, Respondent is unable to determine whetherthe lubricant was ever used in its Worcester workplace.\” However, thatstipulation must be rejected in light of the \”Exhibit\” itself, which onit face states that the sampling was done in the \”Worcester plant.\” Thejudge’s determination focussed on the Forge Department, which was notmentioned by name in the \”Exhibit.\”[[32]]There is some testimony that, in general, hammers were operated inthe Forge Department, but there is no evidence of record that Hadis’jobs would have placed him near the hammers.[[33]] It could be that the Secretary’s contention that Hadis \”workedwith hammers\” is an extrapolation from information in another \”Exhibit.\”See note 32 supra. As noted above, the parties and the judge agreed thatthe \”Exhibits\” are not evidence of record in this case.[[34]] In 1988, the pertinent part of the first sentence in thedefinition was amended to read: \”any compilation of data or anystatistical study …. \” 1988 Rule, 53 Fed. Reg. at 38,163.[[35]] Moreover, we note that, as mentioned by the Secretary, even ifthe \”Exhibits\” here were found not to be based on \”medical opinions, thedefinition of \”employee medical record\” at section 1910.20 (c) (6) (i)introduces the listing of different types of materials, including\”medical opinions\” at subsection (C), with the non-restrictive word\”including,\” thereby indicating that other types of documents mayqualify as \”medical records.\”[[36]] We agree with the Secretary’s assertion that there is norequirement in the records access regulations that a medical examinationtake place before a document can be considered an \”employee medicalrecord.\” Therefore, that portion of Dr. Fielding’s deposition indicatingthat a medical examination must precede the making of a medical recordis irrelevant to the interpretation of the specifically defined term\”employee medical record\” at issue here.[[37]] In the Commission’s copy of \”Exhibit\” 2, there are copies ofTables C-1, C-2, and C-8, but no copy of Table C-3. Other pages andtables were apparently not included in the copy of \”Exhibit\” 2, that wasgiven to the Commission.[[38]] Wyman’s Industrial Hygienist Murphy acknowledged at the hearingthat \”Table C\” in \”Exhibit\” 2 contains some personal sampling results,not identified by employee name.[[39]] Wyman requested before the judge that he permit certain portionsof these ”Exhibits\” to be deleted. The judge found that Wyman had notprovided a sufficient reason for the deletions, and he rejected thereasons Wyman does not challenge the denial of that request on review,and we find no other reason to modify the judge’s ruling with regard tothis matter[[40]] The judge noted in his decision that [t]he parties have agreed tocertain deletions [from the \”Exhibits\”]. such as recommendations.\”However, Wyman must provide access to otherwise complete copies of the\”Exhibits,\” for the items affirmed above [[1\/]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651, et seq., citations are issued after inspection and may becontested within a 15-working day period. 29 U.S.C. ?? 666(c) and (j).[[2\/]] A non-serious violation is one which has a relationship to safetyand health but where there is not a substantial probability of seriousphysical harm or death. See 29 U.S.C. ?? 666(c) and (j).[[3\/]] The United Steelworkers of America, Local 2285, the employeerepresentative (not the designated representative of the deceasedemployees who are the executrixes of those estates), elected and wasgranted party status by order dated January 21, 1985, but it took noactive part in the proceeding. See 29 U. S. C. ? 659 (c) and Commissionrule 29 C. F. R. ? 2200.22 (b).[[4\/]] For example, OSHA was concerned with those employees whoseexposure was only hypothetical. Those were intended to be excluded bythe final definition of \”employee.\” 45 Fed. Reg. 35261, subtopic 4,\”Employee.\”[[5]\/]Complainant insists that the possible use of the records in aworkman’s compensation case is not a defense to a denial of access(Complainant’s Brief, filed January 15, 1985, page 10). The preamble tothe regulation discusses this only as to the question of how longrecords should be retained and whether long- term retention is a burdenon employers.45 Fed. Reg. 35271. The question of whether such use is proper under theregulation is not addressed except by exclusion since the purpose isspecifically stated to be the \”detection, treatment and prevention ofoccupational diseases.\” 29 C.F.R. ? 1910.20(a).[[6\/]] The examination of the records that did occur was done under theaegis of discovery requirements and not by warrant or subpoena. See item3 of the Order Following Prehearing Conference, February 13, 1985. Therecords sought specifically named the Burgess Report, described below(letter of Kehoe,et al., the legal representative, dated December 7,1983) and all exposure records (same, dated January 13, 1984), amongother requests.[[7\/]] In each item of the citation, the regulation requires that accessbe given for records \”relevant\” to the employee, 29 C.F.R. ?? 1910.20(e) (2) (i); or \”‘which the employee is the subject,\” 29 C.F.R. ?1910.20 (e) (2) (ii); or \”concerning the employee’s working conditionsor workplace,\” 29 C.F.R. ? 1910.20 (e) (2) (iii) (A).”