“Docket No. 84-0785 OSHRC Docket No. 84-0785SECRETARY OF LABOR,Complainant.v.WYMAN-GORDON COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,LOCAL 2285,Authorized Employee Representative.DECISIONBefore: FOULKE, ChairmanWISEMAN and MONTOYA, Commissioners.By THE COMMISSION:This case involves regulations at 29 C.F.R. ? 1910.20 (e) (2)that require employers to provide employees and their designated representatives, upontheir request, with access to relevant employee exposure and medical records, and relatedanalyses.I. BackgroundWyman-Gordon Company (\”Wyman\”) is a Massachusettscorporation that manufactures aircraft parts. At Wyman’s plant in Worcester,Massachusetts, Miklos Hadis and William Emco worked primarily in the Forge Department andthe Die Shop, respectively, from the early 1950’s until each retired in 1979. Both mendied in July 1980. Their widows, who are the legal representatives of their late husbands’estates, gave written authorization to the law firm of Kehoe, Doyle, Playter, & Novick(\”Kehoe\”) to exercise the rights of access to employee records and analyses,which they claim are theirs under the records access regulations at 29 C.F.R. ?11910.20,and thereby to act as their \”designated representative\” within the meaning of 29C.F.R. ? 1910.20(c)(3) and (4), discussed below. Kehoe sent written requests to Wyman for exposure and medicalrecords concerning Hadis and Emco, as well as for analyses using exposure and medicalrecords. Wyman denied Kehoe’s requests on various grounds, which are discussed later inthis decision.In response to a written complaint filed by Kehoe, a complianceofficer from the Occupational Safety and Health Administration (\”OSHA\”)conducted an investigation at Wyman’s office. The compliance officer did not ask to seethe records and analyses during the investigation. Instead, he asked that Wyman give thedesignated representative Kehoe access to the records. Wyman refused.OSHA then issued to Wyman one citation consisting of threeitems, as amended by the complaint, alleging other-than-serious violations of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651.678 (\”the Act\”)based on Wyman’s failure to provide Kehoe with access to the requested records andanalyses. No penalty was proposed. Item 1 charged that Wyman violated 29 C.F.R.?1910.20(e)(2)(i). which provided [[1]] as follows:?1910.20 Access to employee exposure and medicalrecords.(e) Access to records–(2) Employee and designated representative access (i) Employeeexposure records. Each employer shall, upon request, assure the access of each employeeand designated representative to employee exposure records relevant 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 ofeach designated representative to the employee medical records of any employee who hasgiven the designated representative specific written consent….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 employer shall, upon request,assure the access of each employee and designated representative to each analysis usingexposure or medical records concerning the employee’s working conditions or workplace.After contesting these alleged violations, Wyman sought,through its motion to sever, an initial hearing and deposition on several preliminaryissues concerning the validity of all the citation items, thereby possibly renderingunnecessary any consideration of the issues on the merits of the individual items. At aprehearing conference conducted by former Commission Administrative Law Judge David J.Knight, Wyman agreed to withdraw that motion and to permit OSHA to conduct a discoveryinspection of Wyman’s records to identify those records that, according to the Secretary,Wyman would be required to make available to Kehoe if Wyman’s arguments on the generalissues, as well as its defenses on the merits, were to fail. The judge issued a discoveryinspection order that required OSHA to maintain the confidentiality of the records.Following the discovery inspection, a second prehearingconference was held at which Wyman and the Secretary[[2]] agreed on which specificdocuments were at issue and designated them as \”Exhibits.\” To maintain theconfidentiality of these documents, they further agreed that the \”Exhibits\”would not become part of the record. Copies of the \”Exhibits\” were provided tothe judge for his convenience, and, in accordance with the parties’ agreement, they werenot admitted into evidence at the hearing.In his decision, issued on February 13, 1987, Judge Knightvacated the entire citation on the basis of his conclusion that OSHA’s investigation wasinadequate under the Act. However, he did make alternative findings on the other issues inthe case, including the merits of the alleged violations.[[3]]Subsequent to the filing of petitions for review by theSecretary and Wyman, this case was directed for review on a number of issues concerning:the entire citation; item 1 in particular and item 3 in particular[[4]]. The Commissionheld oral argument in this case April 11, 1991.II. Issues Concerning Entire CitationWe first address the following issues that concern all threeitems in the citation: (A) whether the judge erred in concluding that the citedregulations grant rights of access to the legal representatives of employees who diedprior to the effective date of the regulations, (B) whether the judge erred in raising suasponte, or on his own, the issue of whether the inspection was insufficient under the Act;and (C) whether the judge erred determining that the cited regulations do not violate theFourth Amendment.A. Whether the Legal Representatives Have Rights of AccessThe employee records access regulations became effective onAugust 21, 1980. Hadis and Emco died in July of 1980.According to Wyman, the rights of employees to access under therule did not arise until the effective date of the regulations, by which time Hadis andEmco had died and therefore never had any rights of access. Wyman contends that whateverright to access a person who is not an employee may claim as the employee’s representativederives totally from the employee. It maintains that, because Hadis and Emco had no rightto access, their legal representatives cannot have a right of access to the records andanalyses.Section 1910.20 (e) (2) (i), (ii), and (iii) expressly requireemployers to 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 ororganization to whom an employee gives written authorization to exercise a right of access….(4) Employee means a current employee, [or] a former employee…. In the case of a deceased or legally incapacitated employee, the employee’s legalrepresentative may directly exercise all the employee’s rights under this section.In his decision, the judge rejected Wyman’s interpretation ofthe rule and noted that the exact words of the regulation specifically grant to the legalrepresentatives of deceased employees the right to act independently to \”directlyexercise all of the employee’s rights.\”Thus, in effect the judge read these words as empowering the legal representative exerciseall of the rights that the deceased employee would have been able to exercise if theemployee were still alive. The judge further reasoned that, because the definition of\”employee\” in section 1910.20 (c)(4) specifically addresses the rights of aperson acting in the capacity of a legal representative, the regulation makes clear thatthe legal representative’s right is not derivative and therefore not dependent on anemployee surviving the effective date of the regulations. The judge noted that thisinterpretation serves an important purpose of the regulation, because, as the preamble tosection 1910.20 provided:[t]he records of deceased and incapacitated workers areobviously relevant to occupational health research. Therefore, the rule explicitly appliesto records relevant to deceased and legally incapacitated employees.Access to employee Exposure and Medical Records: Final Rule, 45Fed. Reg. 35,212, 35,261 (1980)(\”1980 Preamble\”).Wyman contends that the judge’s interpretation would not servethe basic purposes 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 health impairment\”; andan employee to shape personal actions in light of exposure to toxic or otherwise harmfulsubstances. See 1980 Preamble, 45 Fed. Reg. at 35,213, 35,214, 35,219, 35,221, and 35,222.The Secretary asserts that the effective date of theregulations is only relevant to the extent it marks the beginning of the obligation onemployers to assure access upon request. It does not act as a limitation on the rightsthat may be asserted by an \”employee\” or \”designated representative\”after the effective date. Relying on Pratico v. Portland Terminal Co.(\”Pratico\”), 783 F.2d 255, 261 (1st Cir. 1985), the Secretary contends that theAct is a remedial statute that is to be construed liberally in favor of its beneficiaries,and that her interpretation is in accord with the remedial purposes of the regulations andthe Act.We conclude that the judge’s interpretation of the regulationsas directly granting a right of access to legal representatives of deceased employees isthe most reasonable reading of the language in the rules and is fully consistent with thepurposes of the regulations. Under the standard, the effective date of the regulation hasno relevance to the designated representative’s right to request access to employeerecords and analyses. While, as Wyman points out, a number of the purposes of theregulation benefit living employees, we note that OSHA also identified a purpose of theregulation that is directed to the legal representatives of deceased employees. OSHAstated that:At the suggestion of the Xerox Corp., the final rule alsocontains language assuring that the legal representative of a deceased or legallyincapacitated employee may exercise rights under this rule….OSHA believes that the goalsof the Act are well served by facilitating attempts by such legal representatives toascertain whether the deceased or legally incapacitated employee was a victim ofoccupational disease, and to assist health research in discovering the causes ofoccupational disease.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 before August 21,1980, wouldbe unduly burdensome on employers because that \”obligation would be limitless\”and would increase the number of potential requests for records\”exponentially.\”[[6]]We note, as the judge did, that the Secretary has determinedthat the scope and burden of section 1910.20 are limited in that the records access rulesdo not require employers to create new records, monitor employees for exposures, or followa prescribed format for records. Rather, section 1910.20 only requires that existingcovered records must be preserved and made accessible, where appropriate. 1980 Preamble,45 Fed. Reg. at 35,257. Because it recognized that the primary purpose of the regulationsis to detect occupational disease, OSHA concluded that records going back some years\”can be vitally important\” in filling in the many years of data that aprospective approach would lose. 1980 Preamble, 45 Fed. Reg. at 35,258, 35,259.In its notice of hearings on the proposed regulations, OSHAspecifically invited comment on the issue of economic impact. Access to Employee Exposureand Medical Records Proposed Rule, 43 Fed. Reg. 46,322 (1978)(\”1978 Preamble\”).After identifying and examining the factors that would place economic burdens onemployers, OSHA determined that the records access regulations \”will not presentmajor compliance burdens to industry.\” This conclusion remained the same afterconsideration of the comments received on the proposed rules. 1980 Preamble, 45 Fed Reg.at 35,254. See also id. at 35,253, 35,256.[[7]] One of the many factors that OSHAconsidered in determining that the regulations are economically feasible was that\”there is no reason to expect a flood of either initial or periodic requests foraccess.\” 1980 Preamble, 45 Fed. Reg. at 35,256. Section 1910.20 (e) (2) was \”notmeant to penalize conscientious employers, but is predicated on the judgment thatinvaluable exposure and medical records must be shared so as to minimize occupationaldisease\” 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 and rejected the argumentthat Wyman raises here. Furthermore, because Wyman’s contention questions the wisdom ofthe standard, it is an improper subject for a Commission ruling. E.g., Fabricraft, Inc., 7BNA OSHC 1540, 1542, 1979 CCH OSHD ? 23,691 at p. 28,723 (No. 76-1410, 1979).We therefore affirm the judge and conclude that, under theterms of the records access regulation, the legal representatives of Hadis and Emco haverights of access to relevant records and analysis, and they can analyze their\”designated representative\” to exercise those rights.B. Whether the Judge Properly Vacated the Citation onthe Ground that the Investigation Was InsufficientAs noted above, the events that led to this proceeding beganwhen OSHA received a written complaint filed by Kehoe. Upon receiving this complaint, thecompliance officer conducted an investigation at Wyman’s office, where he met with PhilipWoodbury, Wyman’s Manager of Safety and Industrial Hygiene. Woodbury had, by that time,according to his testimony, responded to Kehoe’s requests for records and analyses onbehalf of Emco and Hadis by \”gather[ing] [w]hat could conceivably be argued…was [a]relevant record under the meaning and intent of 1910.20.\” During the investigation,Woodbury told the compliance officer that Wyman was \”fully aware\” of Kehoe’srequest and \”the records were in the custody of their lawyers.\” The complianceofficer did not ask to see the documents himself to determine if Kehoe was entitled toaccess to them under the terms of the regulations. Instead, he requested only that Wymangive Kehoe access to all requested records and analyses.In his decision, the judge vacated the entire citation becausehe concluded that the investigation was insufficient under section 9(a) of the Act. 29U.S.C. ? 658(a),[[8]] a ground for relief that the judge raised on his own in thedecision.[[9]] The judge stated that, in investigating alleged violations of theparticular regulations at issue here, it is necessary for the Secretary to determinewhether access has been denied and whether the employer in fact possesses: exposurerecords \”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 \”concerning the employee’s workingconditions or workplace\” under section 1910.20(e)(2)(iii). He concluded that, becausethe Secretary had not yet seen the records and analyses at the time that she issued thecitation, the Secretary would have had no evidence to prove the allegations that Kehoe wasentitled to access under the terms of the regulations. On that basis, he vacated all threecitation items.The Secretary argues that the judge erred in vacating the itemsbecause he acted improperly in introducing this issue into the case for the first time inhis decision. She notes that \”insufficiency\” of the inspection is, at best, anaffirmative defense, which must be pleaded by the cited employer and that a failure to doso results in waiver or exclusion, citing Depositors Trust Co. v. Slobusky, 692 F.2d 205,208 (1st Cir. 1982). Moreover, she notes that the Commission has held in numerous casesthat judges must not consider defenses that are not jurisdictional when they are notraised by the parties. E.g., Ecco High Frequency 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 BNAOSHC 1970, 1971-72, 1975-76 CCH OSHD ? 20,422, pp. 24,377-78 (No. 4395, 1976), aff’d, 558F.2d 614 (1st Cir. 1977). In particular, the Secretary points to decisions in which theCommission has 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); Consolidated Pine, Inc., 3 BNA OSHC 1178, 1180,1974-75 CCH OSHD ? 19,597, p. 23,408 (No. 5543, 1975). She asserts that these cases areclearly on point here because, like the issue of reasonable promptness, the insufficiencyof the investigation at issue here concerns the propriety of OSHA procedures prior toissuance of the citation. She further contends that the judge’s raising of this issuewithout affording the parties an opportunity to address it is inconsistent with the roleof the Commission 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 thereasons presented by the Secretary, the judge erred in sua sponte raising the argumentthat the investigation was insufficient under section 9(a) of the Act.In addition, we note that, even if the investigation wereinadequate, Wyman was not prejudiced because it in fact did possess possibly relevantrecords and analyses in each of the three cited categories (employee exposure records,employee medical records, and analysis using exposure or medical records). As noted above,Woodbury testified that, by the time of the investigation, he had already gathered therecords and analyses that arguably were applicable under section 1910.20. Therefore, Wymanwas not surprised or forced to defend against frivolous charges.[[10]] Cf. H.B. Zachry Co.v. OSHRC, 638 F.2d 812, 816 (5th Cir. 1981) (amendment to allow introduction of evidenceobtained during \”investigation\” resulted in neither surprise nor hindrance toemployer’s preparation of defense); Bland Constr. Co., 15 BNA OSHC 1031, 1042-43, 1991 CCHOSHD ? 29,325, pp. 39,402-03 (No. 87-992, 1991) (amendment allowed due to lack ofprejudice; both parties had basically same advantages and disadvantages).For the reasons given above, we conclude that the sufficiencyof the inspection is not an issue that is properly before us in this case.C. Whether the Regulations Violate the Fourth AmendmentWyman argues that the cited regulations violate the FourthAmendment because they authorize warrantless searches of records in which employers have\”legitimate and reasonable expectations of privacy,\” without \”anyadministrative mechanisms for testing the reasonableness of the request\” for access.The Secretary contends that the Fourth Amendment does not apply here for several reasons,and that, even if it does apply, it does not prohibit the searches authorized by theregulations. We first address the parties’ arguments as to whether the Fourth Amendmentapplies, and then consider whether the searches at issue violate the Amendment.1. Whether the Searches Authorized by the RegulationsAre PrivateThe Secretary contends that Wyman has no Fourth Amendmentrights to invoke here because the Fourth Amendment applies only to searches by thegovernment, not to searches by a private individual, such as Kehoe. The Secretary assertsthat, under case law interpreting the Fourth Amendment, an individual who conducts asearch is not an agent of the government so long as the search is not conducted incollusion with or at the behest of government officials, and that here Kehoe acted on itsown in requesting the records behalf of its clients, without the participation orknowledge of any governmental official.\u00a0 She notes that OSHA did not seek access toWyman’s records and analyses for itself, although it could have obtained access to themunder a separate regulation, 29 C.F.R. ? 1910.20(e)(3). The judge rejected this argument.\u00a0 He held that a searchauthorized by a regulation is private \”only if the private party is in no way eitheran instrument or agent to the government,\” and concluded that this was not the casehere.\u00a0 He determined that \”this proceeding is one of pure governmental actionand the full panoply of Fourth Amendment rights appl[ies].\”In Monfort of Colorado, Inc., 14 BNA OSHC 2055, 2047-58, 1991CCH OSHD ? 29,246, pp. 39,181-83 (No. 87-1220, 1991), the Commission rejected the samearguments that the Secretary makes here, by with regard to a different regulation. \u00a0In that case, the Secretary argued that the Fourth Amendment does not apply to searchesauthorized by 29 C.F.R. ? 1904.7(b)(1) [[11]] because they are private. \u00a0 TheCommission disagreed.\u00a0 In Monfort, the requestor was a former employee, to whom theemployer was required by section 1904.7(b)(1) to provide certain records that OSHArequires it to keep.\u00a0 Similarly, in this case, the requestor is the designatedrepresentative Kehoe, to whom the employer is required by the cited provisions of section1910.20(e)(2) to provide employee exposure and medical records and analyses using employeeexposure and medical records.In Monfort, 14 BNA OSHC at 2057-58, 1991 CCH OSHD at pp.39,181-182, the Commission 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 basic principle that the fourthAmendment does protect against searches by private parties when they act as instruments oragents of the government.\u00a0 Id. at 614.\u00a0 The Court explained that \”thedegree of the Government’s participation in the private party’s activities…[is] aquestion that can only be resolved ‘in light of all the circumstances’\” (citationsomitted). 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 not mandaterailroads to require covered employees in certain circumstances to submit to breath onsome of the tests. The Court stated that \”specific features of the regulationscombine\” to support the conclusion that the search was governmental, not private. Id.at 615. Those specific features, which, taken together, convinced the Court, were that theFRA regulations: preempt state laws and regulations; were intended to supersede collectivebargaining agreement provisions or arbitration awards construing such provisions; prohibitthe railroads from divesting themselves of, or contracting away, the authority given themby the regulations, confer authority to test, for a public rather than a private purpose,in order to promote public safety; do not permit covered employees to decline theiremployers’ request to test and remain in covered service; and authorize the FRA to receive\”certain biological samples and test results procured by railroads pursuant toSubpart D. [49 C.F.R.] ? 219.11(c),\” 489 U.S. at 615. Regarding the last factor, theCourt noted that the FRA had a \”desire to share the fruits of such intrusions.\”Id.The Secretary contends that, unlike the FRA in Skinner, OSHA inthis case does not need or want the records obtained by the employees because it has itsown independent authority to obtain records under 29 C.F.R. ? 1910.20(e)(3). We disagree.The circumstances of this case are not distinguishable from Skinner on this basis.First, we note that the interest of the agency in acquiring theresults of the search is just one of a number of factors, which we have listed above, thatthe Court considered in reaching its decision in Skinner that 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 all the testing resultsthat 49 C.F.R. ? 219.11(c),[[12]] the general provision on testing that was noted by theCourt, grants to it the right to receive. However, that provision authorizes FRA’s accessto the mandatory post-accident testing results taken under Subpart C, as well as thepermissive testing results taken under Subpart D. It is arguable that the FRA may not needor want the results or permissive testing any more than the Secretary needs or wants therecords here.As the court did in Skinner, we conclude that \”specificfeatures of the regulations issue here\” combine to support our conclusion that thesearches authorized by the regulations are governmental, not private. These featuresinclude the intent of section 1910.20(e)(2) to promote the safety and health of employeesin the workplace by informing them of job hazards. The regulation also furthers thepurposes Congress had in enacting the Occupational Safety and Health Act, of\”assur[ing] so far as possible every working man and woman in the Nation safe andhealthful working conditions,\” and \”providing medical criteria which will assureinsofar as practicable that no employee will suffer diminished health\” due to theemployee’s work experience. Section 2(b) and (b)(7) of the Act, 29 U.S.C. ?651(b) and(b)(7). Moreover, the regulation here was designed to encourage epidemiological researchthat can uncover patterns of occupational illness and the causes of these patterns. 1980Preamble, 45 Fed. Reg. at 35,222. Consideration of these special features leads us toreject the Secretary’s characterization of the searches authorized by the cited provisionsof section 1910.20(e)(2) as merely private searches to which the Fourth Amendment does notapply.[[13]]2. Whether the Reasonable Reporting RequirementException AppliesThe Secretary further argues that the cited regulations fallwithin the reasonable reporting requirement exception to the Fourth Amendment’s warrantrequirement, discussed in California Bankers Association v. Shultz, 416 U.S. 21, 57-67(1974). As we stated in Monfort, the reasonable reporting requirement exception to theFourth Amendment applies 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. Theregulations at issue here only concern \”reporting\” to the designatedrepresentative, not to the government, therefore, that exception does not apply.3. Whether There Was a Reasonable Expectation ofPrivacyAs another basis for finding that the Fourth Amendment does notapply, the Secretary claims that Wyman has no reasonable expectation of privacy vis-a-visits own employees, past and present, two of whom Kehoe represents here. She relies onMarshall v. Barlow’s Inc.,436 U.S. 307, 315 (1978), where the Court stated that\”[w]hat [employees] observe in their daily functions is undoubtedly beyond theemployer’s reasonable expectation of privacy.\” In response, Wyman claims that it doeshave a reasonable expectation of privacy in the employee exposure and medical records, aswell as analyses, that it has maintained over the years.In order to invoke the protections of the Fourth Amendment, theparty seeking relief must have a reasonable expectation of privacy in the object of thesearch. As the Court has declared, \”[a] [Fourth Amendment] search occurs when ‘anexpectation of privacy that society is prepared to consider reasonable isinfringed.’\” 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 the object ofthe search is an expectation that \”society accepts as objectively reasonable.\”See California v. Greenwood, 486 U.S. 35, 39 (1988). We therefore must consider herewhether Wyman’s claimed expectation of privacy meets that test.In Monfort, 14 BNA OSHC at 2059-60, 1991 CCH OSHD at p. 39,184,the Commission held that in order to determine whether there is a reasonable expectationof privacy, we must consider: what the nature of the records in question is; how privateis the information in the records, and therefore how intrusive the search would be; and towhat extent some of that information is otherwise divulged by the employer. Applying thesecriteria to the standardized OSHA No. 200 forms (\”OSHA 200’s\”) at issue inMonfort, the Commission concluded that the employer lacked a reasonable expectation ofprivacy. However, we conclude that the records at issue in this case are clearlydistinguishable.OSHA 200’s contain only summary-type information concerninginjuries and illnesses that employees may have learned of while on the job. Employers arerequired by law to post part of the OSHA 200 at the worksite. Furthermore, regulationsrequire employers to compile the information on OSHA 200’s. In contrast, the employeeexposure and medical records and analyses at issue here contain quite detailed andpersonal information, and they may well reveal information about the employee’s workplaceand processes that the employer may have a legitimate expectation in keeping confidential.The Commission has determined that at least as to one type ofrecord, the OSHA No. 101 form (\”OSHA 101\”), which contains considerably moredetailed information.[[14]] than the OSHA 200, employers do have a reasonable expectationof privacy. Taft Broadcasting Co.,Kings Island Div., 13 BNA OSHC 1137, 1141, 1986-87 CCHOSHD ? 27,861, p. 36,486 (No. 82-1016, 1987) aff’d. 849 F.2d 990 (6th Cir. 1988), EmersonElec. 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 OSHC 1172, 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 thetypes of records and analyses that are sought here than in their OSHA 101’s. The recordsand analyses at issue here may contain information on exposures, injuries, and illnessesof which the requesting employee or representative is otherwise unaware. Moreover, theserecords and analyses were, for the most part, compiled on the employer’s own initiative,not for the purpose of complying with an OSHA regulation.In light of the detailed information that the records andanalyses contain and the attendant concerns regarding confidentiality, we conclude thatWyman had a reasonable expectation of privacy in the records and the related analyses thatare sought here.4. Whether the Searches Authorized by the RegulationsAre ReasonableHaving rejected all the Secretary’s arguments that the FourthAmendment does not apply, we must next determine whether the searches authorized by thecited regulations are reasonable, or whether they are unreasonable and thereby requireOSHA to obtain a warrant or equivalent legal process whenever an employee or designatedrepresentative seeks access to the records and analyses.The basic purpose of the Fourth Amendment is to protect againstsearches that are \”unreasonable.\” There is \”no ready test for determiningreasonableness other than by balancing the need to search against the invasion which thesearch 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 theindividual’s Fourth Amendment interests against its promotion of legitimate governmentalinterests.\” Skinner, 489 U.S. at 619, (quoting Delaware v. Prouse, 440 U.S. 648, 654(1979)). What is reasonable \”depends on all the circumstances surrounding the searchor seizure and the nature of the search or seizure itself.\” Skinner, 489 U.S. at 619(quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)).The regulations at issue here, which address access to employeeexposure and medical records, as well as analyses using exposure or medical records, serveimportant informational interests of employees and their designated representatives. Incomparison, the employer’s interest in maintaining the privacy of the records and analyseswith regard to its own employees is not very compelling. While it is true that some of therecords and analyses at issue were prepared before the Occupational Safety and Health Actwas enacted and may not have been intended for other than Wyman’s own viewing, theSecretary took that into account in promulgating the records access regulations. Notingthe \”typically long latency periods associated with occupational disease,\” theSecretary explained that \”[e]mployer arguments of unfairness must fall when balancedagainst the fact that continued secrecy will substantially impair the ability of workers,their representatives, and OSHA to detect, treat and prevent occupational disease.\”1980 Preamble, 45 Fed. Reg. at 35,258.Wyman contended at oral argument that to require employers toprovide access to the records and analyses would have a \”chilling effect\” onemployers and discourage them from preparing employee exposure and medical records andanalyses for their own purposes. In promulgating the final access rules, OSHA notedsimilar arguments made by various companies and associations that \”[b]ecause of therequirement for providing access to studies based on exposure or medical records . . .there may be a detrimental effect on company-sponsored health research or epidemiologicalstudies.\” 1980 Preamble, 45 Fed. Reg. at 35,236. Participants in the rulemaking alsovoiced concerns that \”broadened access to medical records would inevitably impair thecreation, expansion and effectiveness of occupational medical programs.\” Id. Inresponse to these arguments, OSHA stated that: these predictions are exaggerated, since no concrete evidencewas presented which indicated the standard would have a negative impact on corporateefforts to provide occupational health programs. As previously noted, corporate witnessesstated that, in fact, there would likely be no reduction in their occupational medicalefforts.Id. Therefore, in determining whether to adopt or modify theproposed records access regulations, OSHA considered and rejected the same argument thatWyman raises here. Furthermore, because Wyman’s contention questions the wisdom of thestandard. It is an improper subject for Commission ruling E.g., Fabricraft, Inc. 7 BNAOSHC at 1542, 1979 CCH OSHD at p. 28,723.Moreover. an important objective is achieved by givingemployees access to, the exposure and medical records and analyses using exposure andmedical records–employees are informed about on-the-Job health and safety hazards. AsOSHA has noted. [s]ound public policy dictates that workers he afforded a central role inthe detection and solution of health problems … .\” 1980 Preamble, 45 Fed. Reg.35,219. OSHA also explained that the problems that led to the passage of the Act and thehigh rates of occupational disease and death … are reflections of the fact that, byitself, industry on the whole does not adequately protect worker health.\” Id.An obligation that Congress imposed on the Secretary under theAct is to assure 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 issue regulations requiring thatemployers, through posting of notices or other appropriate means, keep their employeesinformed of their protections 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 requiring employers to maintainrecords of employee exposures to potentially toxic materials or harmful physical agents\”shall provide employees or their representatives with an opportunity to observe suchmonitoring or measuring, 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 to compile. analyze,and publish, either in summary or detailed form. all reports or information obtained underthis section.\”[[15]]The Secretary also recognized that the procedure used byemployees and their designated representatives to obtain access to the information in therecords should not be unduly burdensome, such as requiring legal process, about which theymay have little, if any, understanding. The governmental objective behind the recordsaccess regulations is set forth at the beginning of the 1980 Preamble as follows:The fundamental reasons for this standard are the agency’sjudgments, based on experience, expertise, and the rulemaking record, that employeeexposure and medical records are critically important to the detection, treatment, andprevention of occupational disease, and workers and their representatives need directaccess to this information as well as to analyses of [employee exposure and medical]records….45 Fed. Reg. at 35,213 (emphasis added).OSHA further noted that sound public policy dictates thatworkers [and their designated representatives] be afforded a central role in the detectionand solution of health problems, as there are no assurances that anyone else will protecttheir health with equal vigor or determination….Id. at 35,219.In a similar context, the Supreme Court has stated that\”the Government’s interest in dispensing with the warrant requirement is at itsstrongest when, as here, ‘the burden of obtaining a warrant is likely to frustrate thegovernmental purpose behind the search.\”‘ Skinner, 489 U.S. at 623 (quoting Camara,387 U.S. at 533). The Court went on to state that:insistence on a warrant requirement would impede theachievement of the Government’s objective. Railroad supervisors, like school officials,see New Jersey v. T.L.O., 469 U.S. [325],339-40 [(1985)], and hospital administrators, seeO’Connor v. Ortega, 480 U.S. [709], 722 [(1987)], are not in the business of investigatingviolations of the criminal laws or enforcing administrative codes, and otherwise havelittle occasion to become familiar with the intricacies of this Court’s Fourth Amendmentjurisprudence.Id.To impose a warrant requirement here would frustrate the statedpurpose of the regulations to grant direct access. It would impose on employees or theirdesignated representatives the burden of seeking a warrant, even though they are no morein the business of enforcing administrative regulations than the railroad supervisor,school official, and hospital administrator mentioned by the Court in Skinner. Wetherefore conclude that it would likely be unduly burdensome to require employees or theirdesignated representatives to obtain warrants or administrative subpoenas as a conditionprecedent to gaining access to the records and analyses sought here.We thus conclude that the searches authorized by theregulations at issue are reasonable under the Fourth Amendment because the interests ofthe designated representatives in the records and analyses outweigh the privacy interestsof Wyman in those records.D. SummaryWe have concluded that: (1) the legal representatives haverights of access to records and analyses under the regulations: (2) the issue of thesufficiency of the inspection is not properly before us; and (3) the Fourth Amendmentapplies but is not violated by the cited regulations.E. Disposition of Item 2–Access to Medical RecordsHaving disposed of all the issues raised by Wyman that aredirected to the entire citation, we have thus resolved Wyman’s only challenges to item 2of the citation, which, as discussed in section 1, supra, concerns access to employeemedical records. We therefore affirm item 2 as an other-than- serious violation of section1910.20(e)(2)(ii)(B). Remaining for consideration are issues raised by the Secretary andWyman concerning access to employee exposure records (item 1) and access to analyses usingexposure or medical records (item 3).III. Item 1–Access to Exposure RecordsItem 1 of the citation alleged that, by denying the designatedrepresentative access to relevant employee exposure records, Wyman violated section1910.20(e)(2)(i), which provided: [[16]]Each employer shall, upon request, assure the access of eachemployee and designated representative to employee exposure records relevant to theemployee. For the purpose of this section, exposure records relevant to the employeeconsist 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 presentjob duties or working conditions related to or similar to those of the employee,(C) Records containing exposure information concerning theemployee’s workplace or working conditions ….(Emphasis added).Because the disputed records do not show actual exposures ofEmco or Hadis to the harmful substances being measured, the Secretary and Wyman agree thatnone of the records are \”relevant\” to these employees under subsection (A).Rather, the Secretary contends that she has established that Wyman violated section1910.20(e)(2)(i) by showing that certain \”Exhibits\”[[17]] specificallyidentified by the Secretary, as a result of her examination under the judge’s order:(1)are \”exposure records of other employees with past or present job duties or workingconditions related to or similar to those of the employee\” under subsection (B); or(2) contain \”exposure information concerning the employee’s workplace or workingconditions\” under subsection (C).[[18]]Wyman argues that the Secretary has not proven any violationbecause she failed to meet her burden of establishing a nexus between Emco’s or Hadis’work routine and exposure to the substances measured in the exposure 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 7The Secretary asserts that, contrary to the judge’s findings,she established that \”Exhibits\” 3A and 7 are \”relevant\” to Emco andhas therefore proven that Wyman violated section 1910.20(e)(2)(i) in that it did notprovide Kehoe with access to them.\”Exhibits\”\u00a0 3a and 7 consist of results of airsamples taken in the Worcester Die Shop at or near operators of grinding and boringmachines. The sampling was done in January\u00a0 and February of 1979 to measure levels ofthe target substance,[[19]] which is generated at grinding and boring machines duringcoolant application. \”Exhibit\” 3A consists of results of five area samples takenat breathing zone level in the vicinity of the machine operators. The samples areidentified by machine, not by employees’ names. \”Exhibit\” 7 contains results ofsampling at the breathing levels of the operators, between the operators and the machines.These results identify the operator sampled. \”Exhibit\” 7 contains a statementthat \”[i]t was alleged that [the target substance] drifted into\” the location oftwo machine operators when a specific grinding machine was in operation across the aisle.According to his personnel record, which was admitted intoevidence, Emco worked in the Die Shop at the Worcester facility from January 1952 toFebruary 1963, and from September 1969 to February 1971. His job positions in the Die Shopduring these periods were \”die trainee,\” \”trim die maker,\” \”diemover,\” \”die inspector-helper,\” and \”die inspector.\” Emco workedin other departments at the Worcester facility in addition to the Die Shop. Most notably,he worked as a \”process inspector\” in the Inspection Department from October1978 until his retirement in February 1979.Philip Woodbury, Wyman’s Manager of Safety and IndustrialHygiene, testified that Wyman made the determination that the records at issue did notrelate to Emco because he was not working in the Die Shop in January and February of 1979,when the sampling was done. Woodbury stated that in order to determine whether access to aparticular Die Shop record must be provided to Kehoe under the regulation, it is necessaryto know the operation being monitored, the alloys being machined, the specific machinecoolant and cutting fluid being used, and the environment at the time. Colleen Murphy,Wyman’s Eastern Division Industrial Hygienist, agreed with Woodbury, noting that it isnecessary to know if the machine and lubricant sampled for the record are the same asthose used by the employee. She testified that \”throughout the [die] shop\” thereis \”nothing static.\”I. Judge’s DecisionThe judge found that Emco was at the Worcester Die Shop at thetime \”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 thesamples for \”Exhibits\” 3A and 7 were taken. Emco’s personnel record clearlydistinguishes the \”Die Shop\” as a separate department from\”Inspection.\” We therefore conclude that, at the time of the sampling, Emco wasworking in the Worcester plant, but not in the Die Shop, where he had previously worked.Insofar as the judge found otherwise, we set aside his determination on this matter, whichalone is not dispositive of this issue.The judge determined that, although the \”Exhibits\”contained sampling results from the Die Shop, they were not \”relevant\” to Emcounder subsection (B) because they were not exposure records of employees with \”jobduties or working conditions related to or similar to\” Emco’s job positions. Thejudge concluded that he \”would have to guess that a die trainee, a trim die maker, aninspector, mover, or lubricator, all the jobs described as held by Mr. Emco, are relatedto the records marked as exhibits 3A and 7,\” which concern only operators of grindingand boring machines.The judge found that the \”Exhibits\” did contain\”exposure information concerning [Emco’s] workplace,\” as subsection (C)requires. However, he determined that the Secretary must show more than the presence ofthe employee in the workplace; she must prove, in the judge’s words, \”somerelationship between an employee’s [work] routine and exposure to a toxic agent or harmfulphysical substance.\” In support of this conclusion, he looked toward provisions thatapply to all records access regulations, including 29 C.F.R. ? 1910.20(c)(5). whichdefines \”employee exposure record\” as \”a record containing any of [several]kinds of information concerning employee exposure to toxic substances or harmful physicalagents.\”[[20]] The judge also noted the \”extreme care\” used regarding newor transferred employees in the provision defining \”employee\” at 29 C.F.R. ?1910.20(c)(4).[[21]] He observed that OSHA’s explanation for that careful inclusion wasthat \”employees with only hypothetical future exposure are not entitled to any rightsunder this rule….\” 1980 Preamble, 45 Fed. Reg. at 35,261.The judge concluded that, because the \”Exhibits\” showexposure of only employees who operated grinding and boring machines, positions never heldby Emco, the Secretary did not prove that Emco,. in his positions in the Die Shop,encountered actual or potential exposure to the target substance. He therefore vacated thecitation item insofar as it alleged a violation based on failure to provide access to\”Exhibits\” 3A and 7.2. Arguments of the PartiesThe Secretary argues that \”Exhibits\” 3A and 7 arerelevant to Emco under the express terms of the cited regulation. She contends that theoperators of the grinding and boring machines in the Die Shop had duties \”related toor similar to\” those of Emco, as subsection (B) requires and that the records\”concern\” Emco’s \”workplace,\” as subsection C) requires. Urging us togive the term \”workplace\” its plain meaning, she refers to Frank Diehl Farms v.Secretary of Labor, 696 F.2d 1325 (11th Cir. 1983). In that case, the court recognizedthat[s]ince Congress left the term \”workplace\” [insection 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 place whereone must be in order to do his job.Id. at 1331. Quoting from Webster’s Third New InternationalDictionary of 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’sreliance on the definition in section 1910.20(c)(5) of \”employee exposurerecord.\” She contends that, in making this connection, the judge \”erroneouslyengrafted onto\” section 1910.20(e)(2)(i)(C) a requirement that the Secretary show apotential for exposure of the requesting employee to the target substance. In theSecretary’s view, she need only show that the requesting employee was working in aworkplace where the sampling was done. The Secretary notes that all she is seeking is anorder requiring Wyman to provide the designated representative with access to alreadyexisting records. She contends that such access should not be dependent upon her abilityto establish Emco’s exposure to the target substance, or to show, for example, a violationof 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 representative access torecords.\” 1980 Preamble, 45 Fed. Reg. at 35,217. She asserts that remedialregulations, like OSHA’s, are to be broadly construed, citing Pratico, 783 F.2d at 261.She also contends that her interpretation of her own regulation is reasonable andtherefore entitled to deference by the Commission and courts, relying in her brief onWhirlpool Corp. v. Marshall, 445 U.S. 1 (1980).Furthermore, the Secretary contends that, even if she does, asthe judge found, have the burden of showing Hadis’ possible past exposure, she has provenit.Wyman contends that the judge’s analysis of the relevancy of\”Exhibits\” 3A and 7 under section 1910.20(e)(2)(ii) was \”precisely theway\” such a determination should be made. It urges the Commission to affirm thejudge’s conclusions that: (1) the Secretary must prove some relationship between anemployee’s work routine and exposure to the target substance in order to show relevancy;and (2) she has failed to show that with regard to \”Exhibits\” 3A and 7.3. Discussiona. \”Relevance\” under Subsection (B)Subsection (B) provides that records are relevant so long asthere are \”[e]xposure records of other employees with past or present job duties orworking conditions related to or similar to those of the employee.\” Therefore, thissubsection applies only to personal sampling results, see 1980 Preamble, 45 Fed. Reg. at35,272-73. Only \”Exhibit\” 7 contains personal sampling results.\”Exhibit\” 3A contains only area samples identified by machine. Therefore,\”relevance\” under subsection (B) could only be established with regard to\”Exhibit\” 7. To make a prima facie showing of \”relevance\” undersubsection (B) in this case, the Secretary had to prove that the operators of the grindingand boring machines who where one must be in order to do his work.\” We agree with theSecretary that, by showing that Emco worked in the Die Shop, the same\”workplace\” or \”shop\” where the sampling was conducted, she hasestablished 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 thejudge found, this minimal showing of \”relevancy\” as defined in subsection (C)(which, as noted above, has since been deleted) may not establish a violation by itself.Remaining for consideration is the issue of proof of a relationship between Emco’s jobduties and the target substance.[[25]]c. Relation Between Emco and ExposureWyman contends that the Secretary has not proven a violationbecause, as the judge found, she did not establish a relationship between Emco’s workroutine and exposure to the target substance. The Secretary contends that the only showingrequired to obtain access under section 1910.20(e)(2)(i) is that the employer worked inthe same \”workplace.\”1. Necessity of Showing RelationThe judge concluded that the regulations were only intended torequire employers to provide access to employees whose job duties placed them in positionsof actual or possible exposure to the sampled substances. He found that this requirementwas rooted in the following two definitional provisions at 29 C.F.R. ? 1910.20(c).Section 1910.20(c)(5) provides, as noted above, that \”anemployee exposure record\” is a record containing information \”concerningemployee exposure.\” \u00a0 By its own terms, this definition demonstrates OSHA’sintent not to grant access to records where the requesting employee has never been exposedto a toxic substance or harmful physical agent. Application of that definition hereaccords with: (1) the general scope provisions 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,treatment and prevention of occupational disease, coverage is appropriately limited torecords relevant to employees currently or previously exposed to toxic substances orharmful physical agents.1980 Preamble, 45 Fed. Reg. at 35,215 (emphasis added).The other definitional provision is section 1910.20(c)(4), seesupra note 21, which provides that the term \”employee\” means \”a currentemployee, a former employee, or an employee being assigned or transferred to work wherethere will be exposure to toxic substances or harmful physical agents….\”Thatlanguage was developed in response to comments on a section in the proposed regulationsthat provided, as explained by OSHA that an employee or designated representative would be\”entitled to exposure information that is indicative not only of the employee’scurrent exposures, but also information regarding former exposures and future or potentialexposures as well ….\” 1978 Preamble, 43 Fed. Reg. at 31,373. The definition atsection 1910.20(c)(4) thus implements OSHA’s announced policy under the Act that\”employees have their basic right to know about their exposures to workplace hazardsand the 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 or exposed means thatan employee is subjected to a toxic substance or harmful physical agent in the course ofemployment…and includes past exposure and potential (e.g., accidental or possible)exposure…\” OSHA explained \”[t]his [latter] phase was included to indicate thatthe standard covers situations where exposure could reasonably have occurred and not onlysituations where exposure has definitely occurred or been measured.\” 1980 Preamble,45 Fed. Reg. at 35,265. In further explanation this definition, OSHA stated:The final standard thus does not apply to every situation whereany chemical or hazard is present in the workplace. While the final rule presumptivelyapplies to all occupational exposures to toxic substances and harmful physical agents, theagency does not intend to cover situations where the employer can demonstrate that anemployee is solely exposed to general environmental pollution, or to casual use ofconsumer products. For example, basic chemical processes and abnormal exposures to heat,noise, and vibration are covered by the rule, but typical office working conditions arenot. The applicability of the standard does not, however, depend on any showing that thelevel of actual exposure 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 (afternoting the language quoted above) explained that there were no revisions to it because\”[t]his continues to be OSHA’s interpretation of the degree of exposure necessary totrigger the requirements of the rule.\” Access to Employee Exposure and MedicalRecords: Final Rule, 53 Fed. Reg. 38,140, 38,151 (1988)(\”1988 Preamble\”). Thus,the Secretary must show \”the unique fact of occupational exposure\” to\”trigger\” these regulations.Reading this provision and section 1910.20(c)(4) and (c)(5)together with portions of the preambles to the proposed, final, and amended regulationsestablishes that the judge was correct in requiring the Secretary to show that, at thevery least, Emco’s work routine could possibly have exposed him to the target substance inorder to prove a violation under section 1910.20. This is in accordance with thewell-established rule of statutory construction that \”each part or section should beconstrued in connection with every other part or section so as to produce a harmoniouswhole.\” 2A Sutherland Statutory Construction ? 46.05 (4th ed. 1984).[[27]] TheSecretary herself recognized and advocated use of this principle of regulatoryconstruction in her \”workplace\” argument mentioned in note 22 supra.Commission precedent also supports this result. The requirementthat the Secretary make this showing under this regulation is similar to the requirementthat, ordinarily, the Secretary must prove that the employee was or would be in the\”zone of danger\” \u00a0 because of the nature of the employee’s duties andactivities in order to establish a prima facie showing 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. Astra Pharmaceutical 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 (1st Cir. 1982)(elementrequired to prove a violation–employees had access to the violative condition). Whileunder normal circumstances the Secretary must make such a showing, there is no suchrequirement, 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 not show exposure under the uniquecircumstances of a case involving the hazard communication standard (29 C.F.R. ?1910.1200), where downstream uses and procedures unknown).In Gilles & Cotting, the employer claimed, as Wyman doeshere, that the Secretary must show actual exposure of the employee to the hazard. TheSecretary maintained that a more practical burden would be to show exposure based onreasonable predictability, which could be proven by showing that employees \”while inthe course of their assigned working duties\” actually were or will be \”in a zoneof danger.\” 3 BNA OSHC at 2003, 1975-76 CCH OSHD at p. 24,425. The Commission agreed,further noting that \”[w]e cannot by this decision foresee all the possibilities [ofemployee exposure to a hazard]; the question is one of fact to be determined on a case bycase basis.\” Id. The regulation here imposes just such a practical burden on theSecretary.This exposure requirement can be met by a fairly minimalshowing. For example, it could be sufficient to show that the employee worked in the samejob position in the same department as the employees sampled for the records. Such proofwould be necessary anyway to establish \”relevancy\” under subsection (B) as itexisted when Wyman was cited, or under the revised subsection (B), set forth in note 18supra.For the reasons stated above, we conclude that, in order toprove a violation of section 1910.20 here, the Secretary must show a relationship betweenEmco’s work routine and exposure to the target substance.2. Adequacy of ShowingHaving found that the Secretary must show some relationshipbetween Emco and exposure to the target substance, we now consider whether she has done sohere. The judge determined that, although it was established that Emco had worked in theDie Shop, \”the factual pattern was not developed to the point where I may find thatthose positions would or could bring Mr. Emco into exposure.\” He stated that, basedon the record in the case, he would have to \”guess\” that Emco’s jobs would haveexposed him to hazards experienced by operators of grinding and boring machines, jobswhich Emco never held.We agree with the judge and conclude that, although theSecretary established that Emco had worked in the Die Shop in years prior to the samplingthat was the subject of \”Exhibit\” 3A, she failed to show any relationshipbetween the types of jobs that Emco performed in that shop and the work performed by theemployees near the areas sampled in \”Exhibit\” 3A.[[28]] The only evidence in therecord is that Emco’s job titles differed from those of the employees working in the areassampled in early 1979.The Secretary claims that \”a showing has been made that[Emco] worked in the same general area as fellow employees who unquestionably were exposedto\” the target substance, and the target substance was \”not confined but woulddrift.\” She relies on \”Exhibits\” 3A and 7 as support for those arguments,as well as for her contention that it was shown that \”[a]n air blower caused [thetarget substance] to drift in the die shop.\” We find no basis in the record for theSecretary’s contention that 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 we couldconsider the information in the \”Exhibits,\” it appears that only\”Exhibit\” 7 has any possibly relevant language, and it is presented in the formof an allegation, not a statement of fact.Based on the record before us, we find that the Secretary hasnot established the requisite relationship between Emco’s work routines and exposure tothe target substance necessary to prove a violation of section 1910.20(e)(2)(i).[[29]]\u00a0 We note that the Secretary might have established the requisite nexus in thecase if she had elicited testimony or otherwise established by evidence of record thatEmco’s positions in the Die Shop placed him very near operators of the grinding and boringmachines. Furthermore, the record does not include evidence of the size of the shop. Hadthe Secretary introduced information on these matters into evidence and had such evidenceshown a relationship between Emco and exposure, she could have established the exposureelement of her case. Based on the Secretary’s failure of proof and the undisputedtestimony of Woodbury and Murphy that the conditions in the Die Shop varied depending onthe machine and lubricant in use, we conclude that no violation was proven with regard to\”Exhibit\” 3A.3. SummaryWe conclude, as the judge did, that the Secretary has not mether burden of proof with regard to \”Exhibits\” 3A and 7. Therefore, we vacateitem 1 insofar as it alleged a violation of section 1910.20(e)(2)(i) for failure toprovide Kehoe with access to \”Exhibits\” 3A and 7.The remaining issues in this case concern records and analysesallegedly relevant to Hadis, who worked in a different department than Emco at theWorcester facility.B. Hadis and Exhibits\” 8A and 8BSection 1910.20(e)(2)(i)(B) provided, as quoted above, thatexposure records are \”relevant\” to the employee if they are \”of otheremployees with past or present job duties or working conditions related to or similar tothose of the employee.\” Wyman argues that the judge erred in finding that\”Exhibits\” 8A and 8B are \”relevant\” to Hadis under subsection (B) andin concluding that Wyman violated section 1910.20(e)(2)(i) by refusing to allow access tothem.\”Exhibits\” 8A and 8B are the results ofpersonally-identified air samples of \”helpers,\” \”oilers,\”\”operators,\” and \”hammermen\” in the Forge Department at Worcester. Thesamples, which were taken in March 1978 (\”Exhibit\” 8A) and March 1979(\”Exhibit\” 8B) show the exposure of these employees to the target substancesthat resulted from the use of certain forging compounds, or lubricants. The Secretary hasmaintained that, because Hadis worked in some of these same positions in this samedepartment, \”Exhibits\” 8A and 8B are exposure records \”of other employeeswith past or present job duties or working conditions related to or similar to thoseof\” Hadis, and therefore \”relevant\” to him under section1910.20(e)(2)(i)(B).Hadis worked in the Forge Department at Wyman’s Worcester plantas a \”helper,\” \”oiler,\” \”general forge helper,\” and\”die heater\” from October 1950 to September 1971. He worked for short periods inthe Forge Department as a \”forge helper\” in 1974, 1975, and 1977, and as a\”manipulator operator\” In 1979, in between jobs in other divisions of theWorcester plant, such as the Inspection Department.Philip Woodbury, Manager of Safety and Industrial Hygiene forWyman’s Eastern Division, described the Forge Department as \”a very large place\”measuring 79,000 square feet. It contains hammers in clusters of two or three separated byfurnaces, a centrally located blacksmith shop, and trim presses. Woodbury furthertestified that the Forge Department is a \”job shop,\” not a production facility,and at any one moment employees in the department may be working on 300 or more differentproduct configurations. According to VVoodbury and Colleen Murphy, Wyman’s IndustrialHygienist, the alloys, temperatures, materials, and environment in the Forge Departmentare constantly changing.The judge agreed with the Secretary and concluded that, becauseHadis had worked in some of the sampled job positions in the Forge Department \”overthe years\” and \”during the sampling,\”[[30]] \”Exhibits\” 8A and 8Bwere \”relevant\” to Hadis. He found that by denying access to them, Wyman hadviolated section 1910.20(e)(2)(i).Wyman contends that the judge erred because the Secretary hasnot proven that: (1) employees whose exposure was sampled had \”job duties or workingconditions related to or similar to\” those of Hadis, within the meaning of subsection(B); and (2) the target substances sampled were used when, and in the area where. Hadisworked, and therefore there was no evidence linking Hadis’ work in the Forge Departmentwith exposure to the target substance. Wyman contends that just because the employeessampled had the same job titles as Hadis does not mean that they were similarly situated.Wyman relies on the testimony of its Industrial Hygienist Murphy that employees having thesame job title in the Forge Department can perform different tasks. Murphy gave as aspecific example that she has been \”in the Forge Shop where somebody whose job titlewas an oiler at a certain location may be a helper,\” or if his oiler job finishesearly, he may get reassigned.1. \”Relevance\” under Subsection (B)To make a prima facie showing of \”relevance\” hereunder subsection (B), the Secretary must show that the \”Exhibits\” 8A and 8Bconsist of \”[e]xposure records of other employees with past or present job duties orworking conditions related to or similar to those of\” Hadis. We conclude that she hasmade such a showing because \”Exhibits\” 8A and 8B contain the results of personalsamples taken of employees who, like Hadis, worked in the Forge Department as\”helpers\” and \”oilers.\”To rebut the Secretary’s showing, Wyman relies on Murphy’stestimony that employees with the same job title do not necessarily perform the same work.Wyman’s reliance is misplaced. The specific example that Murphy gave was that an oilermight do a helper’s job. However, Hadis was employed both as a helper and an oiler, andsampling results from employees 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 ExposureWyman argues that the Secretary has not proven a violationbecause she has not related Hadis’ work duties to exposure to the target substance. Itcontends that this is necessary because, as its witnesses Woodbury and Murphy testified,the Forge Department is very large, with ever-changing conditions.However, as we indicated above, the evidence necessary toestablish this relationship need not be extensive. It is sufficient to show that theemployee worked in the same positions in the same shop as the employees sampled. Here, toestablish \”relevancy\” under subsection (B), the Secretary has already shown sucha relationship between Hadis and exposure to the target substance sampled in\”Exhibits\” 8A and 8B.3. SummaryWe therefore conclude that the Secretary has shown that\”Exhibits\” 8A and 8B are \”relevant\” to Hadis under subsection (B) andthat Hadis was possibly exposed to the target substance in his work. Accordingly, weaffirm the judge and conclude that Wyman violated section 1910.20(e)(2)(i) by denying therequest of Kehoe for access to those \”Exhibits.\”C. Hadis and \”Exhibit\” 8CWyman contends that the judge erred in determining that\”Exhibit\” 8C was \”relevant\” to Hadis under subsection (C), and inconcluding that Wyman was in violation of the standard.\”Exhibit\” 8C is a one-page document showing theresults of four area air samples that were taken to determine the level of the targetsubstance, in the testing of a lubricant, at four different locations near a particular\”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 asthe location the \”Worcester plant.\” The \”Exhibit,\” which the partiesstipulated was dated February 12, 1975, does not indicate in which department ordepartments the sampling was done. One area being sampled was described as \”[g]eneralroom atmosphere at breathing zone level . . . between forging hammer and trimminghammer.\” As noted above, Hadis had worked in the Forge Department in variouspositions.In his decision, the judge found that the lubricant was notidentified and that Wyman did not know if it had ever been used in the Worcester ForgeDepartment.[[31]] Nevertheless, he concluded that the fact that the target substance waspresent in the \”general room atmosphere at breathing zone level\” near thehammers was sufficient to establish relevancy to Hadis because \”this was a positionor placement that Hadis could have found himself in.\” In reaching that conclusion,the judge rejected the testimony of Wyman’s manager Woodbury and instead relied oninformation contained in one of the \”Exhibits,\” which is not in evidence. Hetherefore found Wyman in violation of the regulation for not providing access.The Secretary contends that \”Exhibit\” 8C is a\”record containing exposure information concerning [Hadis’] workplace or workingconditions\” in the Forge Department and therefore \”relevant\” to Hadis undersection 1910.20(e)(2)(i)(C). She asserts that the sampling for the substance was done atthe breathing zone level near the hammers. She contends that Hadis worked near thehammers, and therefore the records \”concern\” his \”workplace\” or\”working conditions\” and are \”relevant\” under section1910.20(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 andexposure to the target substance.The \”Exhibit\” itself makes no reference to the\”Forge Department.\” [[32]] The Secretary contends that Hadis did work at alocation in the Forge Department such as the one tested, but the only specific informationsupporting her claim is contained in another \”Exhibit,\” the one upon which thejudge relied. As discussed above, the\”Exhibits\” are, by agreement of theparties, not in evidence and do not constitute part of the record. Information in the\”Exhibits\” that does not appear in the record cannot be relied upon asestablished fact. We thus conclude that the Secretary has not established that the\”Exhibit\” concerned Hadis’ \”workplace\” or \”workingconditions\” and would therefore be \”relevant.\”Even if we were to conclude that Hadis worked \”between theforging hammer 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 not established that thelubricant being tested for \”Exhibit\” 8C was ever used 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 not establish thatthe \”Exhibit\” was \”relevant\” under subsection (C). Having failed toprove \”relevancy,\” the Secretary has failed to establish a violation based on\”Exhibit\” 8C, and we vacate the citation item insofar as it alleged such aviolation.D. Hadis and \”Exhibit\” 11\”Exhibit\” 11 consists of many pages of results ofarea air sampling done in the early 1960’s at various machines at the Worcester plant.Only a few pages, including the top one, identify the target substance being sampled.Several pages mention the \”Forge Shop\” as the site of sampling, but do not referto the target substance. Although it does not actually identify the Forge Department, onepage that does include the target substance states that sampling results were from\”Forgings.\”At the hearing, Wyman’s Safety Manager Woodbury testified thatthe target substance, identified in relation to a small number of samples, was used in theForge Department only for research and development, not for production. He stated that thetarget substance was used in cans which were struck with hammers on a non-continuous basisfrom 1959 to 1964 for a research and development operation to determine if hammering wasmore effective than forging.The judge noted that Hadis was working in the Forge Departmentas a \”general forge helper\” and \”oiler\” during the period of 1959 to1964, when the sampling of the target substance contained in \”Exhibit\” 11 wasbeing conducted. He noted Woodbury’s testimony concerning the exclusive research use ofthe target substance, but he never found that Hadis had worked in that research operation.Based on certain sampling results in the \”Exhibit,\” the judge determined thatthe target substance \”appears\” to have been used in the Forge Department. Thejudge went on to conclude that \”[a]s slight as this [exposure] may be, Hadis could.have been exposed.\” He then determined that the pages of \”Exhibit\” 11 that\”reveal such 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 violationwith regard to certain pages because the Secretary has failed to prove that: (1) the\”Exhibit\” is \”relevant\” under subsection (C); and (2) there was anexus between Hadis’ work routine in the Forge Department and exposure to the targetsubstance.1. \”Relevance\” under Subsection (C)To make a prima facie showing of \”relevance,\” theSecretary must show that the \”Exhibit\” contains exposure information\”concerning [Hadis’] workplace or working conditions.\” With regard to\”workplace\” or \”shop,\” we note that relatively few of the pagesindicate that the sampling results were taken in the \”Forge Shop.\” However, noneof those pages indicate what the target substance was. Even if we were to conclude thatthe Secretary had shown \”relevance\” under subsection (C) insofar as the one pagethat refers to the target substance states that it was sampled from \”Forgings,\”the Secretary has not proven a violation for the reasons discussed below.2. Relation Between Hadis and ExposureWyman contends that the Secretary has not proven a violationbecause she has not established that Hadis in his work could have been exposed to thetarget substance. As noted above, Woodbury testified that the target substance was used inthe Forge Department only in research and development, not in production. Hadis’ personnelrecord, the only evidence 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 the target substance was used as an experiment to show that hammering wascheaper than forging, he therefore was or could have been exposed to the target substance.However, there is no support for that assertion in the evidence.[[33]]No showing having been made that Hadis was involved in thatresearch operation or would otherwise have been exposed to the target substance, weconclude that the Secretary has not established the requisite relationship between Hadis’work routine and exposure to the target substance.For the reasons stated above, we find no violation with regardto \”Exhibit\” 11, and we vacate item 1 of the citation insofar as it alleges aviolation for denying access to \”Exhibit\” 11.E. Summary of Item 1Based on the discussions above concerning all of Item 1, weaffirm item 1 insofar as it alleges a violation based on denial of access to\”Exhibits\” 8A and 8B and vacate that item insofar as it alleges a violation fordenying access to \”Exhibits\” 3A, 7, 8C, and 11.IV. Item 3–Access to Analyses Using Exposure orMedical RecordsItem 3 of the citation, as amended, alleged that, by denyingthe designated representative access to analyses using exposure or medical records thatconcern Hadis’ workplace, Wyman committed an other-than-serious violation of section1910.20(e)(2)(iii)(A). That standard provides:Each employer shall, upon request, assure the access of eachemployee and designated representative to each analysis using exposure or medical recordsconcerning the employee’s working conditions or workplace.Section 1910.20(c)(2) defined[[34]] \”analysis usingexposure or medical records\” as: [A]ny compilation of data, or any research, statistical orother study based at least in part on information collected from individual employeeexposure or medical records or information collected from health insurance claims records….(Emphasis added).The Secretary contends that she was proven that Wyman violatedsection 1910.20(e)(2)(iii)(A) because she established that: (1) the studies comprising\”Exhibits\” 1A, 1B, and 1C, and the report and comments comprising\”Exhibits\” 2 and 2A are \”analyses using exposure or medical records,\”as defined by section 1910.20(c)(2); and (2) these \”Exhibits\” concern Hadis’\”working conditions or workplace.\” Wyman contends that the Secretary has notestablished a violation because she has not proven either of those assertions.A. \”Exhibits\” 1A, 1B, and 1C\”Exhibits\” 1A, 1B, and 1C are mortality studies ofemployees who worked at Wyman’s Eastern Division plants in Worcester and Grafton,Massachusetts. They are based on information in death certificates and personnel recordsof those former employees. The \”Exhibits\” consist of text and tables analyzingthe causes of death in relation to the work area of the deceased employees, as well asother factors. The Forge Department at the Worcester plant is one of the key work areasconsidered.\”Exhibit\” 1A, dated August 9, 1976, analyzes thecauses of the deaths of employees who died between January 1, 1966, and December 31, 1975.It includes a chart showing certain causes of death by work area. \”Exhibit\” 1B,dated July 6, 1979, analyzes the causes of death for employees who died between 1976 and1978 \”Exhibit\” 1C, dated May 11, 1981, does the same for employees who died in1979 and 1980.1. Use of \”Employee Medical Records\”The first issue raised by Wyman concerning access to thesestudies is whether the judge erred in agreeing with the Secretary that death certificates,upon which \”Exhibits\” 1A, 1B, and 1C are based, are \”employee medicalrecords,\” and that therefore these \”Exhibits\” are \”analys[e]s using… medical records,\” as defined in section 1910.20(c)(2), quoted above. Section 1910.20(c)(6)(i) defines an \”employee medicalrecord\” as:a record concerning the health status of an employee which ismade or maintained by a physician, nurse, or other health care personnel or technician,including:(C) Medical opinions, diagnoses, progress notes, andrecommendations …. (Emphasis added).a. Wyman’s ArgumentsWyman contended before the judge, as it does on review, thatdeath certificates 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 JeromeL. Fielding, M.D., Medical Examiner for Worcester, Massachusetts. Dr. Fielding testifiedat his deposition, which was entered into the record, that he has completed deathcertificates in his role as Medical Examiner, as well as in his role of attendingphysician for the patients he has seen in private practice.Addressing the general part of section 1910.20(c)(6)(i) thatdefines an \”employee medical record\” as \”concerning the health status of anemployee,\” Wyman relies on the testimony of Dr. Fielding that death certificates donot concern the \”present health status of the person\” because \”the patientis already dead\” and therefore not able to have a \”health status.\”Wyman further argues that death certificates do not meet themore specific part of the definition at section 1910.20(c)(6)(i)(C) because they are not\”medical opinions.\” Wyman relies on Dr. Fielding’s statement on directexamination that, although an attending physician would complete the \”immediatecause\” item on the certificate by supplying a \”recognized classifiable medicaldiagnosis,\” the body was not always viewed, as would be necessary for a medicalopinion. He further noted that, when the Medical Examiner is the physician completing the\”immediate cause\” item, the information is given in \”relatively simple,non-medical terms.\”In support of its contention that death certificates aredistinguishable from medical records under state law, Wyman points to Dr. Fielding’sstatement that a death certificate is not a medical record because death certificates arepublic records available from the Town Clerk, and they therefore lack the confidentialityof medical records, which can be obtained by persons other than the patient only by courtorder. Wyman asserts that under the applicable Massachusetts statute, death certificatesare public records, while medical records are not, citing Globe Newspaper Co. v. BostonRetirement Bd., 446 N.E.2d 1051 (Mass. 1983) (medical files not subject to mandatorydisclosure under public records statute). Wyman cites court decisions of two other statesthat, according to Wyman, have ruled that death certificates are not medical records,under their respective state laws.b. Secretary’s ArgumentsThe Secretary asserts that she has proven that deathcertificates are \”employee medical records\” because they concern the\”health status of an employee\” and contain \”medical opinions.\” Tosupport her claim that death certificates concern the \”health status of anemployee,\” the Secretary notes that, on cross-examination during his deposition. Dr.Fielding agreed with the hypothetical proposition posed by the Secretary’s counsel that\”if a doctor says that Smith has died of diphtheria, that statement describessomething that happened in the past to Smith while he was living.\”Concerning whether death certificates are \”medicalopinions,\” the Secretary’s counsel points to the following admissions of Dr. Fieldingon cross-examination:Q. When you complete a death certificate including the lineconcerning the cause of death in your role as Medical Examiner, that represents yourmedical opinion as to why this person died, isn’t that true?A. Yes.Q. And when you complete the death certificate in your capacityas an attending physician that also represents your medical opinion as to why the persondied?A. Yes. (Emphasis added).The Secretary also asserts that the state law cases Wymanrelies on are distinguishable from this case because they concern exemptions from publicdisclosure laws, which are read narrowly, while the OSHA regulation here is remedial andmust be read broadly to provide adequate access. She notes that what is at issue here is avery specific definition of \”medical record\” which none of the cited statedecisions considered, and which should be read to permit broad access.c. Judge’s DecisionThe judge rejected each of the grounds upon which Wyman relies.He agreed with the Secretary that a death certificate \”does concern the health statusof an employee\” because the attending physician or medical examiner will determine asnearly as possible \”the cause of death which was present necessarily when the personwas alive.\” He concluded that the cause of death section of a death certificate is arecord of the employee’s health status \”made … by a physician,\” and thusqualifies as a \”medical opinion\” within the meaning of 29 C.F.R.??1910.20(c)(6)(i)(c), \”regardless of how cursory\” the doctor’s examination orinvestigation might be.The judge did not discuss Wyman’s reliance on Massachusetts lawand state court decisions. Instead, he noted that the records access rule is \”all-inclusive\” because:[t]his rule’s access provisions are designed to facilitate thedetection of previously unrecognized occupational health problems: thus the broadestpossible access … must be provided or important information could be lost.1980 Preamble, 45 Fed. Reg. at 35,263-64. The judge also statedthat a \”‘record’ is defined to encompass any item of information regardless of theform or process by which it is maintained,\” citing 1980 Preamble, 45 Fed. Reg. at35,216, For all of those reasons, he concluded that death certificates are \”medicalrecords\” under section 1910.20 (c) (6) (i) (c). d. DiscussionWe agree with the judge and the Secretary that deathcertificates are \”employee medical records\” under section 1910.20 (c) (6) (i)(C) because, as Dr. Fielding admitted on cross- examination in his deposition, they: (1)are records \”concerning the health status of an employee … made or maintained by aphysician,\” and (2) contain \”medical opinions.\”[[35]] We note that what isat issue here is a very specific definition of \”employee medical record\” atsection 1910.20 (c) (6) (i).[[36]] The state court decisions that Wyman cites for theissue of whether death certificates are medical records do not consider this very specificdefinition in the OSHA records access regulations. Rather, they address only state law.Wyman’s attempt to distinguish death certificates from medical records on the basis thatthe certificates eventually become part of the public record likewise must fail becausethe specific definition of \”medical record\” at issue here makes no reference towhether the record is open to the public or not.We also note that inclusion of mortality studies within thecategory of \”analys[e]s using….medical records\” accords with OSHA’s intent toinclude in the definition of \”analysis using exposure or medical records\” thefollowing: \”[c]harts, graphs, tables, industrial hygiene surveys, evaluations ofdisease experience, and other summaries and evaluations. . . .\” 1980 Preamble, 45Fed. Reg. at 35,260. The inclusion of such studies addresses OSHA’s concern that \”ourability to interpret disease patterns today is often frustrated by the lack of. . . suchmedical data as prior medical histories. . . and baseline physiological data.\” Id. at35,258. Accordingly, we affirm the judge’s finding that death certificates are\”employee medical records\” under the definition in section 1910.20(c)(6)(i).2. The \”Exhibits\” and Hadis’ \”WorkingConditions or Workplace\”Having proven that \”Exhibits\” 1A, 1B, and 1C arebased on \”employee medical records,\” the Secretary must next establish that the\”Exhibits\” \”concern\” Hadis’ \”working conditions orworkplace\” in order to show that access must be provided under section1910.20(e)(2)(iii)(A).The \”Exhibits\” describe different work areas in theplant and indicate that employees were divided for purposes of the studies according tothe time they spent in \”the forge area.\” Hadis’ personnel record establishedthat he worked in the Forge Department during some of the same time periods, and in someof the same jobs, as the employees studied. Based on these facts, the judge concluded thatthe \”Exhibits\” were analyses \”concerning [Hadis’] working conditions orworkplace.\”Wyman contends that none of the death certificates or personnelrecords concerned Hadis’ \”working conditions or workplace,\” and, therefore, theanalyses based on those records do not concern those conditions or that workplace. TheSecretary urges affirmance of the judge, relying on the plain meaning of\”workplace,\” as she did in her arguments noted above concerning section1910.20(e)(2)(i)(C). She also refers to the cases mentioned in note 23 supra, as defining\”working conditions\” as \”hazards.\” As discussed in that note, thosedecisions concerned a specific section of the Act that is not at issue here.We conclude, as the judge did, that the Secretary has met herburden of showing that \”Exhibits\” 1A, 1B, and 1C concern Hadis’ \”workingconditions or workplace.\” We reject Wyman’s argument that none of the deathcertificates or personnel records concern Hadis’ workplace or working conditions. Based onthe facts that ”Exhibit\” 1C covers Wyman’s Forge Department employees who died in1979 and 1980, and that Hadis worked in that shop and died in 1980, we conclude that Hadismay well have been among the anonymous employees who were the subjects of the study.Moreover,\”Exhibit\” 1A, which studied employees in the Forge Department who diedover the years 1966-1975, and \”Exhibit\”1B. which studied employees in the ForgeDepartment who died in 1976 and 1977, also concern Hadis’ \”working conditions orworkplace because, according to his personnel record. Hadis worked in that shop from 1950to1971, as well 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 becausethe \”Exhibits\” are only statistical studies based on documents, none of whichrelated to the conditions or place where Hadis worked. In support, Wyman notes that thereis no indication that the author of the studies ever set foot in the Forge Department orinterviewed anyone who had been there.This argument has no merit. The regulation clearly includes ananalysis based solely on research of documents, so long as the source documents themselvesconcern the employee’s working conditions or workplace. We further conclude that thesemortality studies involve a relationship between Hadis and possible exposure to targetsubstances because they concern patterns of disease among Forge Department employeesduring much of the more than 20 years that Hadis worked there.3. SummaryBased on our determinations that \”Exhibits\” 1A, 1B,and 1C are analyses based on \”employee medical records,\” that they concernHadis’ \”working conditions or workplace,\” and that they concern exposurepossibly encountered by Hadis, we affirm Item 3 insofar as it alleged that Wyman violatedsection 1910.20(e)(2)(iii)(A) by denying Kehoe access to \”Exhibits\” 1A, 1B, and1C.B. \”Exhibits\” 2 and 2AWyman argues that the judge erred in finding that, by notproviding Kehoe with access to \”Exhibits\” 2 and 2A, it was in violation ofsection 1910.20(e)(2)(iii)(A). \”Exhibit\” 2 is an industrial hygiene survey andreport, dated January 30, 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 in Worcester and Grafton,Massachusetts, and it gave primary attention to the materials and compounds used and theconditions in the forge departments in the 1950’s and 1960’s. The study contains tablesshowing results of personal and area air sampling for particular target substances in theForge Department at Worcester, including Tables C-2 and C-8, which contain personalsampling results that identify the employee by general job title and operation, and TablesC-1 and C-2, which contain area sampling results. The results in these Tables are analyzedon 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 theback of it are two specific tables from \”Exhibit\” 2: Table C-1, which containsarea sampling results; and Table C-3, [[37]] which contains personal sampling results,identified by general job title and operation, and area sampling results for targetsubstances.1. At Least Partial Basis in \”Individual EmployeeExposure … Records\”To sustain her burden of proving the alleged violation withrespect to \”Exhibits\” 2 and 2A, the Secretary had to show that each of the two\”Exhibits\” is an \”analysis using exposure or medical records.\” Asnoted above, this term is defined at section 1910.20(c)(2) as:[A]ny compilation of data, or any research, statistical orother study based at least in part on information collected from individual employeeexposure or medical records ….(Emphasis added). The Secretary maintains that she has met thatburden because the \”Exhibits\” themselves refer to and incorporate\”individual employee exposure … records\” including personal and area samplingresults.Wyman first contends here, as it did before the judge, that theword \”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 proper basis unless itspecifically identifies particular employees. In addition, Wyman argues that, even if the\”Exhibits\” here are considered to contain references to \”individualemployee exposure records\”,[[38]] \”a careful reading of\”\”Exhibits\” 2 and 2A would show that they do not meet the full definition abovebecause the \”analysis\” in each of these documents was not, as the regulationrequires, \”based at least in part\” on the sampling results.In his decision, the judge rejected those arguments, describingthe definition at section 1910.20(c)(2) as including analyses based on \”practicallyany type of workplace monitoring including personal and area sampling.\” He concludedthat the Secretary proved that the \”Exhibits\” are \”analys[e]s usingexposure . . . records\” under the definition quoted above.First of all, we note that both \”Exhibits\” containand discuss personal sampling results. We conclude that, contrary to Wyman’s unsupportedcontention, the language in section 1910.20(c)(2) does not require that for a study to bean \”analysis using exposure or medical records,\” the personal samples upon whichit is based must identify the employee by name. We note that OSHA has stated that it\”anticipates that in practice most analyses would not identify specific employees . ..\” 1980 Preamble, 45 Fed. Reg. at 35,274. Although that statement was morespecifically directed to 29 C.F.R. ? 1910.20(e)(2)(iii)(B), which requires employers to\”assure that personal identifiers are removed before access is provided\” to\”an analysis which reports the contents of employee medical records,\” than to ananalysis that reports the contents of employee exposure records, it would be inconsistentto require the inclusion 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 basedin part on personal sampling results, we need not address Wyman’s contention concerningarea samples. It is sufficient under the definition at section 1910.20(c)(2) that the\”Exhibits\” are \”based at least in part\” on personal sampling results.We note that \”Exhibits\” 2 and 2A include and discuss the referenced area andpersonal sampling results. We therefore conclude that \”Exhibits\” 2 and 2Aqualify as \”analyses using exposure records\” within the meaning of section1910.20(e)(2)(iii)(A).2. The \”Exhibits\” and Hadis’ \”WorkingConditions or Workplace\”The next issue is whether the judge erred in concluding thatthe Secretary 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 the WorcesterForge Department, which was the shop or \”workplace\” of Hadis for nearly two anda half decades. The analyses contain many area sampling results, as well as personalsampling results, taken from that Department. For these reasons, we affirm the judge andconclude that the analyses concern Hadis’ \”working conditions or workplace.\”3. Relation Between Hadis and ExposureWyman argues that the Secretary has not established therequisite relationship between Hadis’ job duties and exposure to a toxic substance orharmful physical agent. it relies on the testimony of its witnesses Woodbury and Murphy,who stated that the Forge Department is very large, and that the environment and materialsused there are \”constantly changing.\” The judge concluded that the Secretary hadestablished that Hadis’ 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 thenecessary relation between Hadis’ work duties and exposure to harmful substances. The\”Exhibits\” themselves are studies of employees’ exposure to various targetsubstances in the Forge Department for the time periods that cover most of Hadis’ careerin that department. Furthermore, some of the personal samples upon which the studies arebased were taken from other employees, who worked in the Forge Department as\”lubricators,\” or \”oilers,\” positions Hadis had held during roughlythat same time period. At least two tables, C-1 and C-2, contain samples taken in 1977.Hadis briefly worked in the Forge Department during that year, but not in the months thatthe samples were taken. We therefore conclude that the Secretary has proven that\”Exhibits\” 2 and 2A concern Hadis’ working conditions or workplace because these\”Exhibits\” present detailed study and comment on aspects of the Forge Departmentfor much of the time that Hadis worked there and for at least one job that Hadis heldthere.4. SummaryHaving found that \”Exhibits\” 2 and 2A, which eachcontain personal sampling 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 a violation ofsection 1910.20(e)(2)(iii)(A) based on Wyman’s failure to provide the designatedrepresentative with access to \”Exhibits\” 2 and 2A. [[39]]C. Summary of Item 3Based on the discussions above, we affirm item 3 in thecitation, which alleged an other- than-serious violation of section 1910.20(e)(2)(iii)(A)based on Wyman’s denial of the requested access to \”Exhibits\” 1A, 1B, 1C, 2, and2A.V. OrderFor the reasons set forth above, we vacate item 1 insofar as italleged an other-than serious violation of section 1910.20(e)(2)(i) based on failure toprovide the designated representative with access to \”Exhibits\” 3A, 7, 8C, and11.We affirm: (1) item 1 insofar as it alleged another-than-serious violation of section 1910.20(e)(2)(i) based on failure to provide thedesignated representative with access to the employee exposure records identified as\”Exhibits\” 8A and 8B; (2) Item 2, which alleged an other- than-serious violationof section 1910.20(e)(2)(ii) based on failure to provide access to medical records of Emcoand Hadis: and (3) item 3 which alleged an other-than-serious violation of section1910.20(e)(2)(iii)(A) based on failure to provide the designated representative withaccess to the analyses using exposure or medical records that are identified as\”Exhibits\” 1A, 1B, 1C, 2, and 2A. [[40]] The Secretary proposed no penalty, andwe assess none.Edwin G. Foulke Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: December 20,1991SECRETARY OF LABOR,Complainantv.WYMAN GORDON COMPANY,Respondentand United Steelworkers of America,Local 2285,Authorized EmployeeRepresentativeOSHRC Docket No. 84-785DECISION & ORDERAppearances: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. Thisis a \”regulation aimed primarily at possible detection, over a long period, ofsignificant risks\” caused by toxic substances or harmful physical agents not yetcovered by health standards. Under this rule, workers are given a major role in thedetection and solution of health problems faced in the workplace. Louisiana ChemicalAss’n. v. Bingham, 657 F.2d 777 (1981) at 784. Generally, the employees or theirdesignated representatives are to be allowed access to medical and exposure records andthe analysis of this data if any are maintained by their employers.The representatives of the estates of two former employees ofthe respondent, Wyman-Gordon Company, a manufacturer of aircraft parts with offices inNorth Grafton, Massachusetts, requested the release of medical and other recordsconcerning the decedents who may have been exposed to toxic substances. Respondent hasrefused access to some of these records.Following an investigation by the Occupational Safety andHealth Administration of the U. S. Department of Labor (OSHA or complainant) over theperiod June 27 to July 3, 1984, it issued[[1\/]] a citation on July 16, 1984, alleging anon-serious[[2\/]] violation of three regulations 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 these require an employer, upon request by an employee or hisdesignated representative, 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 theemployee’s working conditions or workplace [1910.20 (e) (2) (iii) (A)].Respondent by letter dated August 6, 1984, contested thiscitation. Stipulations of procedural facts and briefs were filed in January 1985, and aprehearing conference[[3\/]] was held on February 13, 1985. Respondent sought to sever theproceedings, by motion filed January 2, 1985, to first determine preliminary issues suchas1) 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 beexamined to determine if any are relevant, as that term is described in the subjectregulations, and access is to be ordered.Respondent agreed not to press its request for severance thusallowing all questions to be resolved in one decision and avoiding piecemeal appeals andpossible remands.The examination of respondent’s records took place over aperiod from March to July 1985, and, following a second prehearing conference on July 12,1985, further stipulations and issues to be tried were filed. Hearing was held onSeptember 18, 1985, to develop the factual background and the meaning of those recordswhich the parties disagree as to whether they are relevant and thus encompassed within thecited regulations. Post-hearing and final memorandums were filed by December 2, 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 deathcertificate is a medical record within the contemplation of these regulationsrequirements.The Basis of the Complaint and the Issues:The deceased, Miklos Hadis and William G. Emco, both wereemployed by respondent for 30 years, each retiring in 1979. Both died before August 21,1980. Their wives are administering their estates and each wife retained the same law firmto represent them authorizing it to gain access to the records here. (Stips. 8, 9, 10, 17,18 and 19)That law firm requested medical records, which respondent has,and employee exposure records and the analysis of those records, of which the respondentdisputes the relevancy, concerning Mr. Hadis. (Stips. 11, 12, 14) Respondent did not allowaccess by the law firm to the records and analysis. (Stip. 15)The same pattern appears concerning Mr. Emco (Stips. 23 and24), but no request in writing was made by the law firm for the exposure and analysisrecords (Stip. 21) as it had done concerning Mr. Emco’s medical records (Stip. 20). Oralrequests were made, however (Stip. 22).Neither the law firm nor OSHA advised respondent as to 1) thecause of the employees’ deaths; 2) the relevance of the requested records; or 3) thepurpose of the request or the use to be made of them.Complainant has sought access to these records by the law firmfrom respondent. Respondent has denied this access. Complainant did not obtain a warrantand respondent demanded none. (Stips. 16, 25)Approximately one month after the deaths of Messrs. Hadis andEmco in July 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 concerningemployees who died prior to the effective date;II) Are respondent’s Fourth Amendment rights a justifiableissue;III )Are certain records \”analyses\” using exposure ormedical records and have these been properly requested in the case of Mr. Emco; andIV) If so, are the records relevant to Messrs, Hadis andEmco as that term 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 formeremployees complainant 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 formeremployee, or an employee being assigned or transferred to work where there will beexposure to toxic substances or harmful physical agents. In the case of a deceased orlegally incapacitated employee, the employee’s legal representative may directly exerciseall the employee’s rights under this section.The former employees ‘widows are \”employees\” underthis definition as legal representatives; they may exercise their husbands’ rights, andthereby authorize designated representatives [29 C.F.R. ?1910.20(c)(3)] to gain access tothe records, according to complainant.Respondent argues that under the effective date provision, 29C.F.R. ?1910.20(j), no employer has an obligation to provide access respecting a formeremployee who died prior to that effective date, August 21, 1980. That provisions reads:This section shall become effective on August 21, 1980. Allobligations of this section commence on the effective date…Therefore, respondent contends, the employee’s right and, Isuppose, any derivative right therefrom did not arise until August 21. Since both Messrs,Hadis and Emco retired and died before that date, no right to access may exist in theirrespective representatives.Otherwise, respondent contends, every employer would beobligated to respond to every request on behalf of any person it ever employed. This isclearly contrary to section 29 U.S.C. ? 657(d) requiring that all information to beobtained form an employer under the provisions of the Act should be with minimum burden.The difficulty in respondent’s analysis is that theregulation–in exact terms–grants to the legal representative access by allowing thatperson to \”directly exercise all of the employee’s rights.\” This right is notderivative or dependent on an employee surviving the effective date as it would have beenhad the definition of \”employee\” not included the capacity of the legalrepresentative, cf., Porter v. Resor, 415 F.2d 764 (1969), but thedefinition establishes the legal representative as an independent actor.This course OSHA found necessary to pursue in its considerationof the regulations because… The records of deceased and incapacitated workers areobviously relevant to occupational health research. Therefore, the rule explicitly appliesto records relevant to deceased and legally incapacitated employees.45 Fed. Reg. 35261.This interpretation casts no more additional burden onemployees than already created should the definition be read to restrict its applicationonly to those current or former employees alive on the effective date; i.e., by allowingthe legal representative direct access does not impose any retroactive effect.OSHA intended to limit the regulation’s scope and burden.[[4\/]]No new records must be created; no obligation to monitor employee exposures are required;and no format of the records are prescribed. Just that should covered records be inexistence, they must be preserved and access granted. See 45 Fed. Reg. 35257, and 29C.F.R. ? 1910.20(b)(3) applying the regulation only to those records \”made ormaintained in any manner.\”OSHA considered the point that the regulation appears topenalize conscientious employers (who compile these data bases) but did not accept itbecause of the main thrust of the regulation, namely, to detect occupational disease. Andold, even ancient, records may be vitally important. OSHA intended to make as much use aspossible of records going back beyond the enactment of the Act itself rather than takeonly a prospective approach thereby forcing a lapse of 20 or 30 years to recreate thisdata base. 45 Fed. Reg. 35258-59.Thus, I conclude that the definition of \”employee\”does not exclude those legal representatives of employees who died prior to the effectivedate; and that 0SHA properly justified the retroactive effect of the regulation andminimized the burden imposed by this application. Daughters of Miriam Center for theAged v. Mathews, 590 F.2d 1250 (1978) at 1259-60.II) As noted above, respondent has raised the Fourth Amendmentas a defense. The regulation, on its face, is sustainable against Fourth Amendment attack.Louisiana Chemical Association, et al. v. Bingham and Marshall, 550 F. Supp. 1136(1982), affirmed 5th Cir., May 7, 1984, No. 83-4044, BNA 11 OSHC 1922. OSHA \”mustrespect the Fourth Amendment rights of the plaintiff;\” Louisiana ChemicalAssociation, above, as these 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 inspectionon June 27, 1984, resulting in the issuance of this citation, he met with respondent’sManager of Safety and Industrial Health, Philip Woodbury, and showed him the complaint ofthe requestor for the data covered by 29 C.F.R. ? 1910.20 concerning the deceasedemployees.This complaint was not put into evidence here. He was told that respondent wasfully aware of the requests for records and they were in the custody of respondent’slawyers. The record shows no further attempts by OSHA to inspect these records and, as aresult, 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’s estates or OSHAconcerning the background, work histories or workplaces of the deceased (Tr. 38).Complainant stipulated that it seeks only that access to thedata be given to the legal representatives (Stips. 16 and 25) and that, prior to theissuance of the citation, it never sought to review the records at issue (Complainant’sReply Brief, filed January 31, 1985, page 2). It is also stipulated that the purpose forthe access was not told to respondent.Before the arguments of the parties are reached concerning theextent to which the respondent’s records are protected by the Fourth Amendment [[5\/]] inwhat might be termed as a private search in contradistinction to one sought by agovernmental agency, as argued, it must be determined first whether complainant has soperfected its position here to defend against these contentions.In my opinion, the stage has not been set properly.The regulation requires that an employer (1) grant access toemployees or their representatives of (2) medical and other relevant records it maintains.If it fails to do so, it has violated the regulation and it may be cited. Thus, OSHAenforces the employees’ right to access by requiring the data encompassed by theregulation to be made available.Complainant argues that the standard was intended to beself-enforcing (Brief, January 15, 1985, page 8) and prior to the issuance of thecitation, OSHA never determined, and freely admits this, whether respondent denied accessto any record within the ambit of the regulation. But then, how could it be known whethera citation should issue. Mere and only denial of access does not appear to amount to aviolation.And contrary to complainant’s position here, the preamble doesindicate that the promulgation of this standard raises unanswered questions in thecircumstance where an employer denies access to OSHA as opposed to an employee. \”Therule may not be self-enforcing\” 45 Fed. Reg. 25252. The future law, it goes on, willhave to depend on the particular circumstances.No argument is advanced why this situation should be treateddifferently than any other alleged violation of a regulation or standard. OSHA here isattempting to enforce a requirement that access to certain records be given torepresentatives of employees.Yet, Compliance Officer Bak did not press to examinerespondent’s records, which he knew were in the custody of its attorneys to determinewhether the denial of access was invalid. Had he so demanded and been refused, a warrantcould have been sought, Marshall v. Barlow’s, Inc., above, the records studied, anda citation issued as to that data upon which the parties disputed inclusion by theregulation.[[6\/]]That regulation is as specific as possible in delimiting therecords accessible. See generally the definition section of the regulation 29 C.F.R. ?1910.20 (c) and the outline of \”relevancy\” with regard to exposure records, 29C.F.R. ? 1910.20 (e)(2)(i)(A)-(D). Decision on that question is relatively uncomplicated.But that point was not reached.[[7\/]]Respondent did not demand that a warrant be obtained (Stips. 16and 25). It had as the facts show, no reason to because no search was sought. And it isnot allowed within the statutory framework for the complainant to issue a citation based solelyon an employee complaint although that may well serve as grounds for obtaining a warrant.29 U.S.C. ? 658(a) requires and inspection or investigation as the basis for citations,and see Marshall v. Sun Petroleum Products, Co., 622 2.Fd 1176 (1980) at 1190 (endof footnote 3) where Judge Pollak, in the course of his dissent, points out that thelegislative history of the Act shows that the Secretary is the channel created to guardagainst frivolous complaints and hence an inspection or investigation must be conducted.An inspection being required and not done here, it must follow that the issue of therespondent’s Fourth Amendment rights is premature.Further, since the inspection was incomplete, complainant wouldhave no evidence to attempt to prove that the access denied by respondent was to recordswithin the regulation’s scope and, therefore, the citation must be dismissed as the orderbelow provides.The examination conducted during the course of this proceedingwas in discovery to determine if any record would be within the regulation. It was notdone as a substitute for the pre – citation inspection. Such a possibility and result wasintentionally circumscribed at the prehearing conference of February 13, 1985. See theorder following that conference. It was only for the sake of expedition that respondentagreed to the discovery procedure.Finally, complainant’s argument that respondent has no FourthAmendment protections here because what is sought is a private search by the legalrepresentative as opposed to a government inquiry does not appear to be well taken.(Complainant’s Brief, January 15, 1985, page 12)The Fourth Amendment protects against unreasonable intrusionsby the government but not against the conduct of private individuals. Burdeau v.McDowell, 256 U.S. 465, 41 S. Ct. 574 (1921). And the private search would be beyondthe Amendment only if the private party is in no way either an instrument or agentto the government. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022,2048-49 (1971).But here there is no evidence of any private search althoughthe legal representative knew of the existence of at least one document that might bewithin the scope of the regulations and subject to access (the Burgess Report). And OSHA’srelief sought is not to permit a private inspection and search of respondent’s records.Rather, it is to force respondent to give over access of whatever may be required underthe regulation. That is necessarily the result if this citation is affirmed.OSHA is serving its own purpose. It seeks compliance with theregulation designed, as all regulations and standards are, for the protection of theworkforce. 29 U.S.C {syms} 641(b), (b)(1), and (b)(12). Thus ,this proceeding is one ofpure governmental action and the full panoply of Fourth Amendment rights apply. It may notbe masked behind the guise of a \”private\” search, that is, OSHA’s claim that ithas no interest in the records, only that access be afforded. In such a case, if no recordis subject to the regulation and an employer denies access to the employee of OSHA, thecitation would be affirmed because of the denial but the respondent would be required todo nothing.To avoid this, OSHA must allege that access was denied to allegedly relevantrecords. Denial of access alone is not actionable. Cf., Corngold v. U.S., 367 F.2d1 at 5 (1966) where a statement from Taglavore v. U.S., 291 F.2d 262, at 266, isquoted, \”[t]he violation of a constitutional right by subterfuge cannot bejustified….\”The examination by OSHA of the disputed records was requiredand– upon refusal by respondent to allow that–could only have been accomplished underthe authority of a warrant.In recapitulation:I) Denial of access alone by an employer is not actionablesince each subsection of the regulation requiring access specifies with as muchparticularity as is possible which records and under what conditions access may beallowed. Hence, each of the particular subsections (medical or exposure records or theanalyses of these) by its terms requires–for the allegations of a citation to beproperly framed–that (1) access was denied to (2) particular records.Access to pages 14 through 33 is restricted to the Commissionand reviewing courts pursuant to the Administrative Law Judge’s order dated February 10,1987 These pages have been omittedif the documents are to be made accessible, they will have tobe so adjusted.ORDER Based on the findings of fact and conclusions of law reachedafter considering the evidence and the parties’ arguments and proposals, which to theextent shown are adopted or rejected as having insufficient support in the preponderanceof the evidence or precedent, it is ORDERED that: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 to employeeexposure records]; .20(e)(2)(ii)(B) [access to medical records by the designatedrepresentative]; and .20(e)(2)(iii)(A) [access to analysis of exposure or medical records]be and it is hereby vacated.DAVID J. KNIGHTJudge, OSHRCDated: February 13, 1987 Boston, MassachusettsFOOTNOTES: [[1]] Subsequent to this citation and complaint, the Secretary revised this regulation, asdiscussed below, and redesignated it \”1910.20(e)(2)(i)(A)\”. Access to EmployeeExposure and Medical Records: Final Rule, 53 Fed Reg. 38,140, 38,165 (1988) (1988 Preambleand\”1988 Rule\”)[[2]] The United Steelworkers of America, Local 2285, requestedand was granted party status in January 1985. Although it was notified of the prehearingconferences and the subsequent evidentiary hearing, it did not appear at either. Nor hasit filed a brief for this case.[[3]] The judge granted Wyman’s motion to restrict access topages 14 to 33 of his decision because they contain material that he consideredconfidential. There is no need to restrict access to our decision here because we maintainthe necessary confidentiality by not including any sensitive information.[[4]] Wyman has stated that, unlike items 1 and 3, it has noarguments particular to item 2, and it will assure that access has been or will beprovided to the medical records if its contentions regarding the entire citation arerejected.[[5]]Commissioner Wiseman notes that, in his opinion, thepurpose of the records access regulation is \”to assist health research in discoveringthe causes of occupational disease.\” 1980 Preamble, 45 Fed. Reg. at 35,261. Therequest here is apparently for the purpose of private litigation, but the record is notentirely clear on this point. Commissioner Wiseman would question whether it isappropriate for the Secretary to prosecute an employer for failing to provide access torecords where the purpose of the request was the furtherance of private litigation,particularly when the same information usually can be obtained through pretrial discovery.[[6]]Wyman contends that because the records must be madeavailable without any showing of need or relevance, such an obligation would be contraryto the spirit and letter\” of section 8(d) of the Act, 29 U.S.C. ? 657(d), whichprovides that \”[a]ny information obtained by the Secretary…shall be obtained with aminimum burden upon employers….\”In response, the Secretary correctly notes thatsection 8(d) of the Act is irrelevant here because it concerns only information providedto the Secretary of Labor herself, the Secretary of Health and Human Services, or a Stateagency, not information provided by an employer to its own employees or theirrepresentatives.[[7]] In its argument that the obligations would be limitless,Wyman appears to be attacking not only the access regulations at issue here, but also theregulations that set retention periods for records. As the Secretary notes, the requisiteaccess is limited by the retention periods of with a few exceptions, at least: 30 yearsfor employee exposure records and analysis using medical and exposure records (29 C. F. R.?? 1910.20 (d) (1) (ii) and (iii)); and duration of employment plus 30 years foremployee medical records (29 C. F. R. ? 1910.20 (d) (1) (i)). Those periods were found to\”pose little additional burden\” in light of \”existing widespread long termretention of records.\”1980 Preamble, 45 Fed. Reg at 35,271. Furthermore, theSecretary determined that the 30- year retention period \”is reasonable in light ofthe latency periods associated with occupational diseases\” Id. at 35,270 and isconsistent with retention periods for recordkeeping under existing OSHA health standardsand 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 hisauthorized representative believes that an employer has violated a requirement of … anystandard … or … regulations … he shall … issue a citation 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, we consider it to bemore appropriately called an \”investigation.\” As section 9(a) provides, theSecretary’s authority to issue citations can be 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 itsprehearing memorandum and at the hearing. However, on the pages that it points to in itsprehearing memorandum, Wyman only challenges the validity of the records access rules onthe ground that they authorize warrantless searches that are unreasonable, in violation ofthe Fourth Amendment. Nor do the cited pages of the hearing transcript allege aninsufficient investigation under section 9(a) of the Act. Rather, they concern onlyWyman’s argument that none of the records and analyses in question have been proven\”relevant.\” Therefore, we find that the issue of the sufficiency of theinvestigation under section 9(a) of the Act was first raised in this case by the judge inhis decision.[[10]] We note that the record shows, in a document filed byWyman in response to the Secretary’s prehearing request, that when Kehoe sent Wyman aletter soon after its first request for access to the records and analyses, Kehoespecifically asked for a particular analysis using exposure or medical records of Wyman’semployees. That analysis became one of the \”Exhibits\” in this case. [[11]] The regulation provides that:[t]he log and summary of all recordable occupational injuries and illnesses (OSHA No.200) …shall, upon request, be made available by the employer to any employee, formeremployee, and to their representatives….[[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 taken to a medical facility forobservation or treatment after an accident or incident shall be deemed to have consentedto the release to FRA of the following ….[[13]]The Secretary relies here, as she did in Monfort, ondecisions of the United States Supreme Court finding that employers committed unfair laborpractices by failing to disclose to the unions representing their employees informationrelevant to the collective bargaining process. E.g., NLRB v. Acme Indus. Co., 385 U.S.432, 435-36 (1967). As we stated in Monfort, those decisions are inapposite because theydo not raise Fourth Amendment concerns and are based on the \”give and take\” ofthe collective bargaining process, which is not at issue in this case. 14 BNA OSHC at2057-58, 1991 CCH OSHD at pp. 39,182-83. See NLRB v. Holyoke Water Pwr. Co., 778 F.2d 49,52 (1st Cir 1985).[[14]] The OSHA 101, entitled \”Supplementary Record ofOccupational injuries and Illnesses,\” requires much more information than the summaryOSHA 200 such as detailed descriptions of what the employee was doing when injured, howthe accident occurred, what the injury or illness was, and what object or substanceinjured the employee.[[15]] The role of employers in assuring communication ofsafety and health information to employees is also addressed in various sections of theAct, 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 of temporary variance order application),655 (b) (7) (use of labels or other appropriate forms of warning). 655 (d) (notice toemployees of application for variance rule or order), and 658 (b) (posting of citation).[[16]] As mentioned in note 1 above, this regulation wasrevised in 1988. 1988 Rule, 53 Fed. Reg. at 38,165.[[17]] As noted above, quotation marks have been placed aroundthe \”Exhibit\” designation of the documents at issue because, by agreement of theparties and the order of the judge, these records were not admitted into evidence and aretherefore not exhibits within the common legal meaning of that term.[[18]] Among the revisions OSHA made to this regulation in 1988were: (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 other employees withpast or present job duties or working conditions related to or similar to those of theemployee to the extent necessary to reasonably indicate the amount and nature of the toxicsubstances or harmful physical agents to which the employee is or has been subjected ….1988 Rule, 53 Fed. Reg. at 38,165. The Secretary explained that subsection \”(B)\”had been revised to avoid \”potentially large numbers of duplicative records.\”1988 Preamble, 53 Fed. Reg. at 38,155. She gave no specific explanation for deletingsubsection \”(C).\”[[19]] To address concerns of confidentiality expressed by theparties, we will use, throughout this decision, the term \”the target substance\”to describe the various substances for which sampling results are contained in the\”Exhibits\” at issue. [[20]] In1988, the phrase \”exposure to toxic substances orharmful physical agents\” was removed from the general introductory provision, andwords to the same effect were inserted in section 1910.20(c)(5)(i), (ii), and (iv). 1988Rule, 53 Fed. Reg. at 38,163[[21]] The term \”employee\” is defined at section1910.20(c)(4) as: \”a current employee, a former employee, or an employee beingassigned or transferred to work where there will be exposure to toxic substances orharmful physical agents….\”(Emphasis added)[[22]] The Secretary also points to the hazard communicationstandard’s definition of \”workplace,\” at 29 C.F.R. ?1910.1200(c), as \”anestablishment, job site, or project, at one geographical location containing one or morework areas.\” According to the Secretary, the records access rules should be construedtogether with the hazard communication standards, citing Consolidated Aluminum Corp., 9BNA OSHC 1144, 1156, 1981 CCH OSHD ? 25,069, p. 30,976 (No. 77-1091, 1980)We note that, unlike the regulations at issue here, the hazard communication standardincludes in its definitions at section 1910.1200(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 is because thehazard communication standard has a separate term, \”work area,\” which is definedin section 1910.1200(c) as \”a room or defined space in a workplace where hazardouschemicals are produced or used, and where employees are present\”. See SuperExcavators, Inc., 15 BNA OSHC 1313, 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 judge erred in \”engrafting onto\” the \”relevancy\” requirement ofsubsection (B) and (C) a separate requirement that is not there. As discussed below, weview the issue of \”relevancy\” under the regulation to be separate from thequestion of what relationship existed between the employee’s job duties and exposure tothe 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 hasaccess to employee exposure or medical records, or analyses thereof, pertaining toemployees exposed to toxic substances or harmful physical agents (2) This section appliesto all employee exposure and medical records, and analyses thereof, of [such] employees….(Emphasis added). See 1988 Rule, 53 Fed. Reg. at 38,163 (subsection (2) amended, asbracketed portion shows, while meaning from previous wording not changed). See also 1988Preamble, 53 Fed. Reg. at 38,143 (noting that \”[t]he 1980 rule applies to theexposure and medical records of all employees exposed to toxic substances and harmfulphysical 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, 1984-85 CCH OSHD? 27,456, p.35,569 n.6 (No. 82-12, 1985) (two paragraphs of National Fire ProtectionAssociation standard read to be consistent); Spot-Bilt, Inc., 11 BNA OSHC 1998, 2000-011984-85 CCH OSHD ? 26,944, p.34,551 (No. 79-5328, 1984) (purpose of assuring adequateexits \”pervades section 1910.36, with section 1910.36(b)(4) construed accordingly).[[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 on that\”Exhibit\” and need not discuss the \”Exhibit\” here.[[29]]We note that, in some cases, the Secretary’s failure toprove employee access has been the dispositive factor leading to the Commission’s vacatingof the citation item at issue. E.g., Armour Food Co., 14 BNA OSHC 1817, 1824, 1987-90 CCHOSHC ? 29,088, p. 38,886 (No. 86-247,1990); Carpenter Contracting Corp., 11 BNA OSHC2027, 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 jobsampled in the Forge Department \”during the sampling\” is inconsistent with thefact noted above that his only work in 1978 and 1979 in the Forge Department was as amanipulator operator.[[31]] Wyman and the Secretary had stipulated that\”[b]ecause the lubricant is not identified, Respondent is unable to determine whetherthe lubricant was ever used in its Worcester workplace.\” However, that stipulationmust be rejected in light of the \”Exhibit\” itself, which on it face states thatthe sampling was done in the \”Worcester plant.\” The judge’s determinationfocussed on the Forge Department, which was not mentioned by name in the\”Exhibit.\”[[32]]There is some testimony that, in general, hammers wereoperated in the Forge Department, but there is no evidence of record that Hadis’ jobswould have placed him near the hammers.[[33]] It could be that the Secretary’s contention that Hadis\”worked with hammers\” is an extrapolation from information in another\”Exhibit.\” See note 32 supra. As noted above, the parties and the judge agreedthat the \”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 any statistical study…. \” 1988 Rule, 53 Fed. Reg. at 38,163.[[35]] Moreover, we note that, as mentioned by the Secretary,even if the \”Exhibits\” here were found not to be based on \”medicalopinions, the definition of \”employee medical record\” at section 1910.20 (c) (6)(i) introduces the listing of different types of materials, including \”medicalopinions\” at subsection (C), with the non-restrictive word \”including,\”thereby indicating that other types of documents may qualify as \”medicalrecords.\”[[36]] We agree with the Secretary’s assertion that there is norequirement in the records access regulations that a medical examination take place beforea document can be considered an \”employee medical record.\” Therefore, thatportion of Dr. Fielding’s deposition indicating that a medical examination must precedethe making of a medical record is irrelevant to the interpretation of the specificallydefined term \”employee medical record\” at issue here.[[37]] In the Commission’s copy of \”Exhibit\” 2, thereare copies of Tables C-1, C-2, and C-8, but no copy of Table C-3. Other pages and tableswere apparently not included in the copy of \”Exhibit\” 2, that was given to theCommission.[[38]] Wyman’s Industrial Hygienist Murphy acknowledged at thehearing that \”Table C\” in \”Exhibit\” 2 contains some personal samplingresults, not identified by employee name.[[39]] Wyman requested before the judge that he permit certainportions of these ”Exhibits\” to be deleted. The judge found that Wyman had notprovided a sufficient reason for the deletions, and he rejected the reasons Wyman does notchallenge the denial of that request on review, and we find no other reason to modify thejudge’s ruling with regard to this matter[[40]] The judge noted in his decision that [t]he parties haveagreed to certain deletions [from the \”Exhibits\”]. such asrecommendations.\” However, Wyman must provide access to otherwise complete copies ofthe \”Exhibits,\” for the items affirmed above\u00a0[[1\/]] Under the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651, et seq., citations are issued after inspection and may be contestedwithin a 15-working day period. 29 U.S.C. ?? 666(c) and (j).[[2\/]] A non-serious violation is one which has a relationshipto safety and health but where there is not a substantial probability of serious physicalharm or death. See 29 U.S.C. ?? 666(c) and (j).[[3\/]] The United Steelworkers of America, Local 2285, theemployee representative (not the designated representative of the deceased employees whoare the executrixes of those estates), elected and was granted party status by order datedJanuary 21, 1985, but it took no active part in the proceeding. See 29 U. S. C. ? 659 (c)and Commission rule 29 C. F. R. ? 2200.22 (b).[[4\/]] For example, OSHA was concerned with those employeeswhose exposure was only hypothetical.\u00a0 Those were intended to be excluded by thefinal definition of \”employee.\” 45 Fed. Reg. 35261, subtopic 4,\”Employee.\”[[5]\/]Complainant insists that the possible use of the recordsin a workman’s compensation case is not a defense to a denial of access (Complainant’sBrief, filed January 15, 1985, page 10). The preamble to the regulation discusses thisonly as to the question of how long records should be retained and whether long- termretention is a burden on employers.45 Fed. Reg. 35271. The question of whether such use is proper under the regulation is notaddressed except by exclusion since the purpose is specifically stated to be the\”detection, treatment and prevention of occupational diseases.\” 29 C.F.R. ?1910.20(a).[[6\/]] The examination of the records that did occur was doneunder the aegis of discovery requirements and not by warrant or subpoena. See item 3 ofthe Order Following Prehearing Conference, February 13, 1985. The records soughtspecifically named the Burgess Report, described below (letter of Kehoe,et al., the legalrepresentative, dated December 7, 1983) and all exposure records (same, dated January 13,1984), among other requests.[[7\/]] In each item of the citation, the regulation requiresthat access be 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 conditions orworkplace,\” 29 C.F.R. ? 1910.20 (e) (2) (iii) (A).”