Bally's Park Place Hotel & Casino

Plain-English summary

Bally's commissioned an outside consultant to test iodine emissions from a casino glass-washing machine after OSHA raised employee exposure concerns. The company's general counsel requested the testing in anticipation of litigation, and Bally's refused to give the resulting records to OSHA or an employee representative. The Commission held that the consultant's factual test records were protected by the attorney work-product rule. It also concluded that the Occupational Safety and Health Act did not authorize OSHA to eliminate that protection and that the records-access rule had not done so. Because OSHA could have obtained substantially equivalent results by testing the machine itself, it did not overcome the qualified protection, and both serious citations and their $600 penalties were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.20(e)(1)(i); 29 C.F.R. § 1910.20(e)(3)(i)
• Outcome: Both records-access citations were vacated, eliminating $1,200 in penalties.
• Key point: Factual consultant records prepared for counsel in anticipation of litigation may be protected work product unless the party seeking them proves substantial need and undue hardship in obtaining equivalent information.

Full text (OSHRC public release)

Docket No. 87-1849_88-0337

SECRETARY OF LABOR,

Complainant.

v.

BALLY'S PARK PLACE HOTEL & CASINO

Respondent

OSHRC DOCKET NOS. 87-1849 & 88-0337

DECISION

Before: FOULKE, Chairman: and WISEMAN, Commissioner.[[1]]

BY THE COMMISSION:

These cases are before the Commission pursuant to a petition by
Bally's Park Place Hotel & Casino ("Bally's) for review of a decision by a
Commission Administrative Law Judge. The judge held that Bally's violated two provisions
of the records access rule, 29 C.F.R. � 1910.20, promulgated by the Secretary's
Occupational Safety and Health Administration ("OSHA"). His basic grounds were
that Bally's refused to turn over to OSHA and to an employee representative a copy of
certain records of employee exposure to airborne iodine at Bally's Atlantic City, N.J.,
casino. Bally's argues that the records are exempt from disclosure under the attorney work
product doctrine--or rule--because they were prepared for its attorney in anticipation of
litigation. We find that Bally's objections are well founded, and therefore we vacate the
citations.

BACKGROUND

Based on a complaint by a Bally's employee, OSHA wrote Bally's
on March 10, 1987,to request that the company investigate iodine emissions from an
automatic, cold water glass washing machine located in a bar at its casino. OSHA regulates
employee exposure to iodine through the standard codified at 29 C.F.R. � 1910.1000.
Bally's general counsel, Dennis Venuti, ordered that the machine be tested for iodine
emissions, and that a confidential report of the results be sent to him. Bally's hired an
outside consultant to do the testing. Venuti testified without contradiction that the test
results were prepared for him in anticipation of litigation.[[2]]

Relying upon the attorney work product rule, Bally's denied
repeated requests by the employees' union representatives, and by OSHA, to be provided
with a copy of the iodine sampling results. The Secretary issued an administrative
subpoena to Bally's for the documents. Bally's refused to comply, again on the ground of
the work product rule.

The Secretary pursued the subpoena no further. Rather, she
issued a citation to Bally's for a willful violation of section 1910.20(e)(1)(i)[[3]] for
failure to provide the union representative with access to the iodine sampling results.
That citation is the subject of Docket No. 87-1849. Later, the Secretary cited Bally's for
a willful violation of section 1910.20(e)(3)(i) [[4]]for failure to provide OSHA with
access to those records. That citation is the subject of Docket No. 88-0337. The judge
affirmed the citations as serious and assessed penalties of $600 for each.

DISCUSSION

a. Whether the work product rule applies to the records sought

The attorney work product rule has been codified in Rule
26(b)(3) of the Federal Rules of Civil Procedure, which provides:

[A] party may obtain discovery of documents and tangible things
otherwise discoverable ... and prepared in anticipation of litigation or for trial by or
for another party or by or for that other party's representative (including the other
party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing
that the party seeking discovery has substantial need of the materials in the preparation
of the party's case and that the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means. . . .

Fed. R. Civ. P. 26 (b)(3). That rule is applicable in
Commission proceedings, because the Commission has not adopted a specific provision
differing from it. 29 U.S.C. � 661(g) ("Unless the Commission has adopted a
different rule, its proceedings shall be in accordance with the Federal Rules of Civil
Procedure"); Commission Rules 2(b) and 52(a), 29 C.F.R. �� 2200.2(b) and 52(a)
("In the absence of a specific provision, procedure shall be in accordance with the
Federal Rules of Civil Procedure"). See Continental Oil Co., 9 BNA OSHC 1737, 1741
& n.6 1981 CCH OSHD � 25,371, pp. 31,579-80 & n.6 (No. 79-570, 1981).[[5]]
Certain exceptions to Fed. R. Civ. P. 26(b)(3) are set forth in a different part of the
rule. Those exceptions are not relevant here.

Under the express terms of the rule, the qualified work product
protection of Rule 26(b)(3) applies to the iodine sampling records, for discovery
purposes, because: (1) the records are documents, (2) they were "prepared in
anticipation of litigation," and (3) they were prepared for Bally's attorney by
Bally's consultant or agent. See Continental Oil Co., 9 BNA OSHC at 1741 & n,9, 1981
CCH OSHD at pp. 31,579-80 & n.9, citing United States v. Nobles, 422 U.S 225, 238-39
(1975). See also, e.g., McNulty v. Bally's Park Place, Inc., 120 F.R.D. 27, 29-30 (E.D.
Pa. 1988) (statement by eyewitness to slip and fall, given to Bally's insurance adjuster
when the filing of a lawsuit against Bally's over slip and fall could reasonably be
anticipated, was covered by Rule 26(b)(3)).

Nevertheless, the Secretary argues that Rule 26(b)(3) does not
govern this case because it involves a subpoena issued before the litigation began, rather
than a discovery request. However, the Supreme Court has applied the Rule 26(b)(3)
criteria to determine whether a comparable investigative tool, an Internal Revenue Service
("IRS") summons, should be enforced:

Nothing in the language of the IRS summons provisions or their
legislative history suggests an intent on the part of Congress to preclude application of
the work-product doctrine. Rule 26(b)(3) codifies the work-product doctrine, and the
Federal Rules of Civil Procedure are made applicable to summons enforcement proceedings by
Rule 81(a)(3).

Upjohn Co. v. United States, 449 U.S. 383, 398-99 (1981), Fed.
R. Civ. P. 81(a)(3), referred to in the previous quotation, also applies the Federal Rules
of Civil Procedure to proceedings to enforce OSHA subpoenas. It provides:

... These rules apply to proceedings to compel the giving of
testimony or production of documents in accordance with a subpoena issued by an officer or
agency of the United States under any statute of the United States except as otherwise
provided by statute or by rules of the district court or by order of the court in the
proceedings.

(Emphasis added). See also, United States v. Rockwell Intl.,
897 F.2d 1255, 1265-66 (3d.Cir. 1990) (attorney work product rule may be interposed
against IRS summons). OSHA subpoenas are "issued by an officer or agency of the
United States," pursuant to section 8(b) of the Occupational Safety and Health Act
("the Act"), 29 U.S.C. � 659(b). There is no provision affecting the
application of the Federal Rules to such subpoenas.

We hold that the Rule 26(b)(3) criteria determine whether
disclosure of Bally's report may be compelled by citation, subpoena, or discovery. Rule
26(b)(3) codifies an historical "public policy underlying the orderly prosecution and
defense of claims." Hickman v. Taylor, 329 U.S. 495, 510 (1947) (in performing duty
to gather facts for court and client, "it is essential that a lawyer work...free from
unnecessary intrusion by opposing parties and their counsel") The mere form of the
proceeding should not change the protections for an attorney's work product. Here, the
Secretary could have attempted judicial enforcement of the subpoena she issued. As
mentioned above, the work product rule would have been fully applicable in such a
proceeding.[[6]]

The judge held that the records contained test results and
other factual information and were unprotected by the work product rule. He stated that
"an in camera inspection revealed that the test was purely technical
information." However, as applicable case precedent makes clear, factual portions of
a document covered by the qualified privilege of Rule 26(b)(3) are protected by its
express terms, unless the special showing of need and lack of alternatives is made.
Continental Oil, 9 BNA OSHC at 1741-42, 1981 CCH OSHD at pp. 31,579-80 (factual records
contained in respondent's expert investigative report prepared for litigation were
protected by work product rule).[[7]]

The Secretary argues that even if the consultant's report is protected by the work product
doctrine, the cited standards should be construed to require disclosure of the factual
Information in It. She cites the repeated statements in the preamble to section 1910.20
that the basic reason for the regulation is the need for "information." E.g.,
Access to Employee Exposure and Medical Records: Final Rule, 45 Fed. Reg. 35,212, 35,213
(1980). However, section 1910.20 is expressly limited to access to
"records."[[8]] That rule does not require the employer to divulge information,
other than the records that are subject to access under the rule. A regulation may not be
construed to mean what the agency might have intended, but did not adequately express.
E.g., Bunge Corp., 12 BNA OSHC 1785, 1791, 1986-87 CCH OSHD � 27,565, p, 35,806 (No.
77-1622, 1986).

As noted above (n.7), the work product doctrine protects only specific "documents and
tangible things." Thus, disclosure of the underlying facts mentioned in documents may
be pursued by other means. In these cases, however, the Secretary has not attempted by
other means to obtain the facts she seeks. Thus, we only decide whether the Secretary is
entitled to the records in question. We note, however, that discovery of the underlying
facts from Bally's expert consultant might be subject to restrictions in these
circumstances, under Fed. R. Civ. P. 26(b)(4)(B).[[9]]

b. Whether the Secretary has abrogated work product protection
for employee exposure records under � 1910.20

The judge accepted the position of the Secretary's counsel that
in promulgating the records access rule, the Secretary eliminated any exception to the
disclosure of covered records which may have otherwise applied under the work product
doctrine. He based that finding on developments subsequent to the rule's promulgation. We
disagree with that conclusion. As mentioned above, the qualified protection for attorney
work product has emerged from a basic public policy that has historical roots in the
common law tradition.

It is a well-established principle of statutory construction
that "[t]he common law ... ought not to be deemed to be repealed, unless the language
of a statute be clear and explicit for this purpose."

Norfolk R. & H. Auth. v. C & P Telephone Co., 464 U.S.
30, 35 (1983) quoting Fairfax's Devisee v. Hunter's Lessee, 7 Cranch (11 U.S.) 603 (1813).

There is no "clear and explicit" language in the Act either repealing or
authorizing the Secretary to abrogate the work product doctrine. The Secretary's counsel
argues that the Act provides authority to abrogate work product protection because
Congress provided for access to exposure records by the Secretary and by employees, under
sections 8(c)(1) and (3) of the Act, 29 U.S.C. �� 657(c)(1) and (3). However, those
provisions do not mention the work product doctrine. Nor do they expressly grant authority
to abrogate it. [[10]] The legislative history of the Act also does not indicate an
intention to authorize the Secretary to abrogate the work product doctrine.

Even assuming that something less than "clear and
explicit" statutory authority would he sufficient to authorize abrogation of the work
product doctrine as to exposure records, no such authority may even be implied here. As
discussed above, section 12(e) of the Act affirmatively incorporates the work product
doctrine into Commission proceedings, through the Federal Rules of Civil Procedure. Under
section 12(e), only the Commission may alter the application of the work product doctrine
in its proceedings, and it has not done so. It would not be reasonable to conclude that
section 8(c) of the Act implicitly gives the Secretary authority to abrogate work product
protection, in view of the fact that Congress contemplated that the work product doctrine
would apply in proceedings to review contested citations.

Moreover, an interpretation of a statute or regulation that is
contrary to a clear public policy, such as the attorney work product doctrine, is not
favored. See, e.g., Creque v. Luis, 803 F.2d 92, 96 (3d Cir. 1986) (clear public policy
considerations "exert a significant influence in the process of statutory
interpretation by the courts") quoting 2A Sutherland, Statutory Construction, �
56.01 (4th ed. 1984). See generally Pillsbury v. United Engg. Co., 342 U.S. 197 (1952).
Under these circumstances, we will not defer to the interpretation of the Act advanced by
the Secretary's counsel. Cf. Martin v. OSHRC (CF& I Steel Corp.), 111 S.Ct. 1171,
1178-79(1991) (Secretary's interpretations of the Act and of her regulations are entitled
to judicial deference where reasonable).

Because the Act does not authorize abrogation of the work
product doctrine, the Secretary may not abrogate the doctrine by regulation. "It is
axiomatic that an administrative agency's power to promulgate legislative regulations is
limited to the authority delegated by Congress." Bowen v. Georgetown Univ. Hospital,
488 U.S. 204, 208 (1988). The Secretary essentially concedes that there can be no
abrogation of the doctrine without sufficient statutory authority.

Even if the Act had authorized the Secretary to abrogate work
product protection for exposure records, there is no reasonable basis to conclude that she
has done so. The original records access rule contained no provision concerning documents
prepared in anticipation of litigation. 45 Fed. Reg. 35,212. Nor did its Preamble discuss
the subject. The Secretary's counsel argues that an intent to abrogate work product
protection for exposure records is found in an interpretation of the rule that that the
Secretary issued in 1981. Access to Employee Exposure and Medical Records; Partial Stay;
Interpretations, 46 Fed. Reg. 40,490 (1981). We disagree. That interpretation stated:

3. Privileged records. The question has been raised whether an
   employer must provide access to records which are created solely in anticipation of
   litigation and which are otherwise privileged from discovery under the prevailing rules of
   procedure or evidence. An example could be a medical opinion prepared for the employer for
   purposes of aiding the employer's case by a company physician after a workmen's
   compensation claim has been filed. It has been OSHA's interpretation that the standard
   does not contemplate coverage of such a record if the record would not otherwise be
   available to the employee or his attorney in the litigation. On the other hand, the mere
   fact that a medical record (see definition at 29 CFR 1910.20(c)(6)) not originally created
   in anticipation of specific litigation will ultimately be used as evidence in a private
   legal proceeding does not put it outside the scope of the standard.

Id. (emphasis added). Although the interpretation uses medical
records as an example of documents that might not be covered by the rule, the passage
covers records generally. Read as a whole, the passage indicates to us that the Secretary
actually intended not to abrogate the work product doctrine with respect to exposure
records. The Commission recently interpreted the same passage, in upholding the
Secretary's position that the records access rule does not affect the records disclosure
provisions of a worker's compensation law:

OSHA made clear that the rule does not require disclosure of
records created by the employer in anticipation of litigation and which would be
unavailable to the employee in [Worker's Compensation] proceedings for that reason.

General Motors Corp., Electro-Motive Div., 14 BNA OSHC 2064,
2067, 1991 CCH OSHD � 29,240, pp. 39,166-67 (No. 82-630, 1991). The Secretary's 1981
interpretation indicates an intent to apply the rule consistently with the work product
doctrine.

The Secretary further argues that the 1988 revisions to the
records access rule shows an intent by the Secretary to abrogate protection for exposure
records. Access to Employee Exposure and Medical Records: Final Rule, 53 Fed. Reg. 38,140
(1988). At that time, the Secretary amended the definition of "employee medical
record" to exclude "records created solely in preparation for litigation which
are privileged from discovery under the applicable rules of procedure or evidence."
29 C.F.R. � 1910.20(c)(6)(ii)(C). Id. at 38,163. No such amendment was written into the
standard regarding employee exposure records.

However, the preamble to the 1988 revisions reaffirmed and
reprinted the 1981 interpretation in discussing the term employee medical records. Id. at
38,150-51. As discussed above, we conclude that the 1981 interpretation actually shows
that the Secretary did not intend to abrogate work product protection for exposure
records. We also conclude that the Secretary's silence on abrogation of the work product
rule relative to exposure records in the 1988 revisions does not require the conclusion
that abrogation as to that category of records was the result which she intended. If
anything, that silence may be indicative of the fact that more often than with medical
records, exposure records are prepared pursuant to the requirements of an OSHA standard,
rather than to prepare for prospective litigation, and thus art not covered by the
attorney work product rule. Consequently, application of the work product rule in the
context of exposure records would arise less often than with medical records. That could
explain why in the 1988 revisions the Secretary made the clarification as to medical
records, but saw no need to address the lesser issue of abrogation as to exposure records.
Moreover, the Secretary has not established a pattern of enforcement by OSHA in which the
agency has considered the work product rule as having been abrogated as to exposure
records.

For these reasons, we find no reasonable basis to conclude that the Secretary
intended to abrogate work product protection for exposure records under the records access
rule.  Under these circumstances deference is not due to the Secretary's
interpretation of the rule.  Compare CF&I Steel Corp. at 1179 (reviewing court
may consult the Secretary's interpretive rules "to determine whether the Secretary
has consistently applied the interpretation embodied in the citation, a factor bearing on
the reasonableness of the Secretary's position") and Gardebring v. Jenkins, 485 U.S.
415, 429-30 (1988) (agency's interpretation of its regulation upheld where there was no
claim that it was inconsistency with Constitutional or statutory mandate, with plain
language of regulation, or with agency's intent when promulgated regulation) with Bowen v.
Georgetown Univ. Hospital, Id. at 212 (Supreme Court has never required deference to
"agency litigation positions that are wholly unsupported by regulations, rulings, or
administration practice [or] to an agency counsel's interpretation of a statute where the
agency itself has articulated no position on the question")  and Inv. Co. Inst.
v. Camp, 401 U.S. 617, 617, 629-39 (1971) ( Court rejected interpretation of agency
regulation urged by agency's appellate counsel, where interpretation was contrary to
literal language and intent of statute).

Finally, we note that the 1988 revisions by themselves have no effect on these cases.
  The citations predate those revision by many months, and only allege violations of
the original records access rule.

c. Whether the Secretary made the special showing that would justify disclosure of
attorney work product

The qualified work product protection of Fed. R. Civ. P. 26(b)(3) may be overcome if
the Secretary "has substantial need of her case, and "is unable without undue
hardship to obtain the substantial equivalent of the materials by other means."
  The Commission has required a showing that other discovery methods would be
sufficient to obtain the facts sought in order to justify discovery of work product.
  Continental Oil Co., 9BNA OSHC at 1742-43, 1981 CCH OSHD at pp. 31,580-82.

The judge held that even it the records  sought were work product, they are
discoverable because the Secretary has a substantial need for them.  He concluded
that Bally's effectively denied OSHA and the employees a means of obtaining the results
themselves, because the machine was taken out of service after Bally's test. He further
found that OSHA reasonably relied on Bally's to conduct the test and submit the results to
OSHA. He essentially held that there was an understanding between OSHA and Bally's to that
effect. Bally's denies that such an understanding existed, and argues that the Secretary
failed to make the required showings of need and lack of alternatives. The Secretary does
not address these issues.

We conclude that, without undue hardship, OSHA would have been
able to obtain substantially equivalent test results. The judge cited no evidence that
Bally's precluded OSHA from testing the machine, and we have found none. Bally's
represents that it did not deny OSHA the opportunity to test the machine, and notes that
OSHA never asked to conduct its own tests. The evidence indicated that Bally's performed
its own tests by putting the machine back in service temporarily for that purpose, after
it had been shut down for weeks following OSHA's letter. The Secretary has not shown that
OSHA was unable to test the machine in a similar way.

The evidence indicates that OSHA's Camden, New Jersey, area
office was backlogged with scheduled inspections when the Bally's employee first filed the
complaint. The supervisory industrial hygienist at the area office, Phyllis Kyner,
testified that she initially told the complaining employee that it might take OSHA a month
or two to conduct an inspection. The employee then requested and received quicker action
through OSHA's nonformal complaint procedure. The action taken by OSHA included sending
the March 10, 1987 letter that informed Bally's of the iodine emissions problem. Thus, we
find that the Secretary has not shown that OSHA was unable, without undue hardship, to
obtain the necessary information by means other than Bally's records.

The judge specifically found that, because of the backlog of
scheduled inspections, "OSHA reasonably relied on Bally's to conduct the test and
submit the results." His first ground for that finding is that "Congress
intended that employers assist the Secretary in providing a safe and healthful working
environment." In support, he cited Yelvington Welding Serv., 6 BNA OSHC 2013, 1978
CCH OSHD � 23,092 (No. 15958,1978). However, requiring an employer to turn over test
results prepared in anticipation of litigation against it was not one of the forms of
employer assistance referred to by Congress. The forms of employer assistance discussed in
Yelvington were having representatives accompany OSHA compliance officers on inspections,
and reporting major accidents to OSHA, as required by 29 C.F.R. � 1904.8.

The judge's second ground for that finding is that OSHA had an
understanding with Bally's that the company would turn its test results over to the
agency. However, the evidence he cited in support of this finding merely indicates that
OSHA requested Bally's to conduct an internal investigation of iodine emissions, and to
provide OSHA with copies of any tests that Bally's conducted. It does not indicate that
the company ever had a meeting of the minds with OSHA that it would disclose the test
results to the agency[[11]]

There was conflicting testimony about one discussion on the sharing of test results that
occurred on the day the tests were conducted. Jerome Page, business representative for the
employees' union, testified that he asked Veronica Ghetie, who conducted the test, whether
he could have a copy of the report, and she replied, "No problem, none at all."
Page also testified that Bally's Labor Relations Manager Tartaglio then walked up, that
Ghetie asked him if it would be "okay" to give Page a copy of the report, and
that Tartaglio replied, "No problem."

Tartaglio testified, however, that all he said was
"No," when Page requested a copy of the report from Ghetie that day. The judge
credited Tartaglio's testimony on this issue. The Secretary does not challenge that
finding by the judge. In any event, Bally's consistently denied requests by Page and OSHA
officials for the test results, beginning shortly after the test was made. OSHA has not
established that it reasonably relied on Bally's to submit the test results as a basis for
the agency's failure to inspect the dishwasher.

Fed. R. Civ. P. 26(b)(3) requires that the party seeking
materials (1) have a substantial need for them, and (2) be unable without undue hardship
to obtain the substantial equivalent by other means. Because the Secretary has failed to
establish the second prong of that test, we need not reach the issue of whether she
established a substantial need for the test results.Thus, we conclude that the records
sought are exempt from disclosure under the qualified protection of the attorney work
product rule.

CONCLUSION

For the foregoing reasons, we reverse the decision of the
administrative law judge and vacate the citations issued to Bally's in these cases.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Dated: November 7, 1991

SECRETARY OF LABOR,

Complainant,

v.

BALLY'S PARK PLACE HOTEL & CASINO,

Respondent.

OSHRC Docket Nos. 87-1849 & 88-0337

Region II

APPEARANCES:

HARRY W. SCOTT, JR., ESQUIRE

U.S. Department of Labor Office of the Solicitor

For the Complainant

DAVID R. MILLER, ESQUIRE

Grotta, Glassman, and Hoffman, P.A.

For the Respondent

DECISION AND ORDER

TENNEY, JUDGE

PROCEDURAL BACKGROUND

This case arose from an employee complaint to the Occupational
Safety and Health Administration (hereinafter OSHA) of sore throats, eye irritation, and
skin rashes. After an investigation and a chain of related circumstances, the Secretary
cited Bally's Park Place Hotel & Casino (hereinafter Bally's) for two violations.

Bally's conducted an air sampling test in the casino service bar #2 area following a
series of communications with OSHA, the Atlantic city Health Department, and employee
representatives. Thereafter, Bally's denied the employee representative and OSHA access to
the test results based on the work product rule.

On July 30, 1987, the Secretary served upon Bally's a subpoena
duces tecum. The subpoena requested any documents containing information concerning
employee exposure to a toxic substance or harmful physical agent such as: (1)
environmental workplace monitoring, (2) biological monitoring results, or (3) any other
record which revealed the identity of a toxic substance or harmful physical agent.
(Exhibit R-2.) Again, Bally's asserted the work product rule and refused to comply with
the subpoena. On August 17, 1987, Bally's submitted through its attorneys, a position
statement which more fully explained their reasons for not complying with the subpoena.
(Exhibit R-3.)

On October 26, 1987, the Secretary issued Bally's its first
violation. Citation No. 1, Item 1, alleges a willful violation of 29 C.F.R. �
1910.20(e)(1)(i) [[1]]. The Complaint alleges that the employer did not provide access to
records containing iodine sampling results conducted on or about May 4 & 5, 1987, at
casino service bar #2 within a reasonable time (no later than 15 days) when requested by
an employee or designated representative. A proposed penalty of $6,000 was assessed. This
case was assigned the Docket No. 87-1849.

On January 20, 1988, the Secretary issued Bally's its second
willful violation. The second citation, Citation No. 1, Item 1, alleges a violation of 29
C.F.R. � 1910.20(e)(3)(i) [[2]]. The Complaint alleges that access to employee exposure
records related to the May 4 and 5, 1987, testing at casino service bar #2 were not given
to the Camden, New Jersey, OSHA Area Director or his representative after said records
were subpoenaed. (Tr. 66-67.) This case was assigned the Docket No. 88-0337.

A notice of contest was filed in each case and each was timely.
The cases were consolidated for hearing purposes only. (Tr. 4) A hearing was held on
September 8, 1988, in Philadelphia, Pennsylvania; post hearing briefs have been filed and
considered.

DECISION

1. Bally's has its principal place of business in Atlantic
   City, New Jersey, and is engaged in operating a casino hotel. Many of the materials and
   supplies used and/or manufactured by Bally's originated and/or were shipped outside the
   State of New Jersey. (Complaint and Answer, Paragraphs 2 & 3.) Thus, Bally's is an
   employer engaged in a business affecting commerce within the meaning of section 3(5) of
   the Act, 29 U.S.C. � 652(5).

2. Casino service bar #2 utilized a dishwasher that required an
   iodine-chlorine additive called Mikroklene during the cold water rinse cycle. (Testimony
   of Ms. Kyner, Tr. 143; Exhibit C-1.) Ms. Jean Quinn, a bartender at casino service bar #2
   for almost nine years, noted that the eight-year-old dishwasher required frequent service
   due to damaged pipes, flooding, and failure to hold chemical settings. (Tr. 18, 25,
   27-28.) The dishwasher was not operated correctly; this resulted in iodine vapor fumes.
   (Testimony of Mr. Page, Tr. 32-33; that of Mr. Tartaglio, Tr. 57; that of Ms. Kyner, Tr.
   128.) These fumes caused numerous employee complaints. (Testimony of Mr. Venuti, Tr. 164;
   Exhibit C-2.)

3. Ms. Quinn and other employees complained of the condition in
   the bar. (Testimony of Ms. Quinn, Tr. 28.) Complaints were of the following conditions:
   bloodshot eyes, eye infections, burnt cheeks, nose runs, sore throats, frequent
   bronchitis, skin rashes, and other skin conditions. (Testimony of Ms. Quinn, Tr. 16; that
   of Ms. Kyner, Tr. 126, 142.) In addition, it was complained that the iodine vapors were
   sufficient to stain walls, ceilings, and employees' shirts brown or yellow.(Testimony of
   Mr. Siletsky, Tr. 94.)

4. On March 10, 1987, Mr. Allendorf, Area Director of Camden
   OSHA, by letter requested BalIy's to investigate the alleged condition and make any
   necessary corrections or modifications and submit any supporting documents such as
   monitoring results. (Exhibit J-1.)

5. Mr. Richard Tartaglio, Director of Labor Relations at
   Bally's, responded on March 16, 1987, stating the complaint had been fully investigated
   and had no merit. (Exhibit C-1.) Bally's investigation included a check of the venting
   system and a review of the Mikroklene directions for use. Mr. Tartaglio stated that
   improper use by bar porters resulted in an inaccurate reading during a daily iodine
   chlorine test that may have caused a strong odor of iodine. In support of the findings,
   Mary Lou Antinozzi, Director of Hotel Services, submitted an affidavit stating that
   "the manner in which Bally's maintains the machine contradicts the allegations raised
   by complainant (employees) in this matter." (Exhibit C-1.) However, Bally's did not
   conduct an air sampling test at this time to determine whether the complaints were valid.

6. On numerous occasions OSHA was in contact with Bally's
   regarding the situation in general and air sampling in particular. (Paragraphs 4, 6-7.) on
   April 3, 1987, Ms. Kyner spoke with Mr. Tartaglio and suggested one way to settle the
   complaint was to get an air sample. (Testimony of Ms. Kyner, Tr. 129.) In a follow up
   letter dated April 3, 1987, Mr. Allendorf noted that Bally's investigation left the
   condition in open status and suggested that a way to prove no violation was by air
   sampling. (Testimony of Mr. Siletsky, Tr. 118; Exhibit C-2.)

7. On May 6 and 12, 1987, Roman Siletsky, an OSHA compliance
   officer, contacted Mr. Tartaglio regarding the situation. During the conversation of May
   6th, Mr. Tartaglio said they would get a sampling firm to come in. (Testimony of Mr.
   Siletsky, Tr. 78.) During the conversation of May 12th, Mr. Tartaglio told Mr. Siletsky
   Bally's would need more time to get the results. (Testimony of Mr. Siletsky, Tr. 81.)

8. Mr. Tartaglio contacted Bally's construction consulting firm
   to arrange an air quality test. (Tr. 53; Testimony of Mr. Venuti, Tr. 165-166, 183.) The
   construction firm, in turn, contacted J.C. Anderson Associates to perform the air quality
   test.

9. The dishwasher was put out of service from April 20, 1987,
   to the day of the testing on May 4, 1987. (Testimony of Miss Quinn; Tr. 24-25; that of Ms.
   Kyner, Tr. 149-150.)

10. Ms. Veronica Ghetie, an employee of J.C. Anderson
    Associates and an agent of Bally's, conducted an air quality test on May 4 and 5, 1987.
    (Stipulation; Tr. 36.)

11. The steps taken in preparing for the air quality test were
    as follows. The dishwasher and the service bar were placed in a fully operational mode by
    the day of the test. Toward that end, Bill McNulty, manager of Bally's Beverage division,
    made sure that Ms. Quinn would be present for the entire testing period. (Testimony of Ms.
    Quinn, Tr. 8, 21. ) The dishwasher was serviced on the day of the test to ensure proper
    functioning. (Testimony of Ms. Quinn, Tr. 18, 23; that of Mr. Page, Tr. 32 ;that of Mr.
    Mulgrew, Tr. 69.) The test was conducted on a regular work day for Ms. Quinn. (Testimony
    of Mr. Tartaglio, Tr. 202.) Other employees such as cocktail waitresses and the bar porter
    worked in and around the area as usual throughout the test. (Testimony of Ms. Quinn, Tr.
    17.)

12. Ms. Ghetie utilized a "black box" in conducting
    the air quality test. Apparently, the box was to be worn by the bartender during the
    examination to ensure that the breathing space of the employees was being monitored.
    Casino service bar #2 was about five feet long by four feet in width. (Testimony of Ms.
    Quinn, Tr. 11-12.) Although Ms. Quinn was supposed to wear the black box during the actual
    testing, due to the limited space it was placed on the bar. It is inferred that Ms.
    Quinn's inability to wear the box did not adversely affect the results, given the confined
    area of the bar.

13. In sum, the air quality test was conducted during the
    course of a normal workday and under normal work conditions. Adequate safeguards were
    taken to ensure an accurate test result by Bally's management, Ms. Ghetie, and employees.
    The exposure tested on May 4 and 5, 1987, was typical of that received previously while
    the dishwasher was in service. The evidence demonstrates that the air quality test
    constitutes a record containing relevant information regarding employee exposure to toxic
    substances. Thus, the air quality test constituted an exposure record. (Testimony of Ms.
    Kyner, Tr. 141.)

14. On the day of the test, Mr. Page, an employee business
    representative, went to the service bar. Mr. Page asked Mr. Tartaglio for a copy of the
    test results and he denied the request. (Tr. 200.) On May 29, 1987, Bally's denied OSHA
    the test results based on the work product rule. (Testimony of Mr. Siletsky, Tr. 84-85,
    122-123; that of Mr. Tartaglio, (Tr. 194-195; Exhibit J-5). Again, on June 5, 1987, Mr.
    Tartaglio denied Mr. Page the test results. (Testimony of Mr. Page, Tr. 39, 43.) Later, on
    July 23, 1987, Mr. Tartaglio denied an OSHA compliance officer the test results.
    (Testimony of Ms. Kyner, Tr. 136.) After Mr. Venuti received the subpoena, he informed Ms.
    Kyner that the test results would not be made available and that a position statement
    would follow. (Testimony of Mr. Venuti, Tr. 174.) Finally, on August 17, 1987, a position
    statement was filed wherein Bally's refused to give OSHA the test results. (Testimony of
    Ms. Kyner, Tr. 138-139.)

15. There are three main issues for decision in this case and
    one incidental issue. The main issues are: whether the air quality test is protected by
    the work product doctrine; whether the air quality test report constituted an exposure
    record under the standard; and whether the second citation, issued on January 20, 1988,
    was issued within the six-month period of Section 9 (c) of the Act. The incidental issue
    is whether the second citation was issued with "reasonable promptness."

"Work-Product" Issue

16. Bally's argues that the air quality test results are work product of an attorney in
    anticipation of litigation and therefore not subject to disclosure. However, for the
    reasons stated below, I conclude that the air quality test results do not qualify as work
    product and are subject to disclosure.

17. The purpose of the work product doctrine is to permit an
    attorney to perform his duties without unnecessary interference from opposing counsel. The
    doctrine seeks to protect an attorney's mental impressions, obtained or prepared by an
    attorney or his agent with an eye toward litigation. Hickman v. Taylor, 67 S.Ct. 385, 392
    (1947).

18. Courts have recognized, however, that there are limitations
    on the scope of the doctrine. For example, only where a document is primarily concerned
    with legal assistance is it protected; technical information is otherwise discoverable.
    Loctite Co. v. Fel-Pro Inc. & Felt Products Mfg. Co., 667 F. 2d 577, 582 (7th Cir.
    Ill. 1981). Specifically, technical information, such as the results of research, tests,
    and experiments, given to the attorney and not requiring a legal interpretation are
    without protection. Union Carbide Co. v. Dow Chemical Co., 619 F. Supp. 1036, 1047
    (D.C.Del. 1985).

19. Moreover, even if the work product rule were not so
    confined, there are other limitations on its scope. The work product rule is largely
    confined to pretrial discovery.  U.S. v. Nobles , 95 S. Ct. 2160, 2174 (1075) (
    White, J., concurring).  Also, if it were not so limited, production night be
    justified if there is a substantial need to obtain the document in question.  Hickman
    v. Taylor , 67 S. Ct. at 394.

20. Turning to the first limitation on the scope of the doctrine, (Paragraph 18), an in
    carmera inspection revealed that the test was purely technical information.  Mr.
    Venuti also conceded that the test result as confidential materials.  Union
    Carbide Co. , 619 F. Supp. at 1047.  As the test results in this case are factual
    and require no legal interpretation they are devoid of protection under the work product
    rule.

21. Moreover, it is irrelevant whether the primary motive in directing Ms. Ghetie to
    conduct the test was done with an eye towards litigation.  Access is not contingent
    upon motive or proposed use of the record. Cf. Johnson & Johnson Products Inc. ,
    11 BNA OSHC 1159, 1160, (No. 81-1339, 1983.  Thus, as motive is irrelevant the
    results are accessible.

22. Perhaps even more persuasive, is the fact that the Secretary of Labor has
    addressed matters of privilege in the standard. However, these concern generally the
    confidentiality of employee medical records and the protection of trade secret
    information.[[3]] With regard to medical records there is an exclusion of records created
    solely In preparation for litigation which is privilege from discovery. See Section
    1910.20(c)(6)(ii)(C). But, there is no comparable exclusion for exposure records.

23. Finally, in any event, the air quality test is accessible
    under the standard because there is a "substantial need" to obtain the results.
    The machine was taken out of service after the test. (Exhibit J- 4.) Thus, Bally's has
    effectively denied the employees and OSHA a means of obtaining the results themselves.
    Bally's asserts that OSHA had agreed to certain procedures in investigating the case. I
    agree with Bally's to the extent that certain procedures were understood by both parties.
    Although Bally's argues that OSHA was given ample time to conduct its own testing, the
    record evidence indicates that OSHA reasonably relied on Bally's to conduct the test and
    submit the results. (Paragraphs 4, 6-7.)

24. The record evidence indicates that OSHA was inundated with
    cases during the period of this inspection. For that reason, employees sought to follow
    the informal complaint procedure in the hopes of obtaining faster results. (Testimony of
    Ms. Kyner, Tr. 127.) Congress intended that employers assist the Secretary in providing a
    safe and healthful working environment. Yelvington, 6 BNA OSHC at 2015. Recognizing that
    OSHA was inundated with cases at the time of this complaint it was reasonable for OSHA to
    rely an Bally's to conduct the testing.

"Exposure Record" Issue

25. Bally's argues that the exposure records are in any case
    not accessible because they were not conducted in the "course of employment." In
    support of this argument, Bally's submits that the test was conducted in an experimental
    manner with a dishwasher which needed repairs. This argument is weak.

26. Under Section 1910.20(c)(8) "exposure" means
    "that an employee is subjected to a toxic substance or harmful physical agent in the
    course of employment . . . and includes past exposure and potential exposure."
    (Emphasis added.)

27. There is persuasive evidence to show that the test was
    conducted during the course of employment and under normal conditions. For example, the
    dishwasher was put back into working condition for the test; the test was conducted during
    the course of normal working hours and conditions; and, employees worked as usual during
    the testing. (Paragraphs 11-13.) As such, the sampling tested the breathing space of the
    employees and constitutes exposure under the standard. Hence, the test results are
    accessible to OSHA and employee representatives as an accurate employee exposure record of
    past exposure that gave rise to the employee complaints.

"Statute of Limitations" Issue

28. Bally's argues that the second citation must be vacated
    because it was not issued within the six-month period as required by Section 9(c) of the
    Act, 29 U.S.C. � 658(c) This argument fails for the following reasons.

29. The failure to allow accessibility to exposure records to
    employee representatives and OSHA is viewed as a continuing violation. Therefore, although
    Bally's had early asserted the work product rule, the violation continued up to the date
    the position statement was submitted after the issuance of the subpoena which was issued
    on July 30, 1987.

30. Bally's would have the statute of limitations commence on
    the day the informal complaint was filed. However, the original complaint merely alleges
    the physical problems faced by the employees in the bar. The facts comprising the second
    citation arose at least until after the test results were denied in response to the
    subpoena and, Bally's attorneys submitted a position statement stating they would not
    comply with the subpoena.

"Reasonable Promptness" Issue

31. Bally's argues that the second citation was not issued with
    "reasonable promptness" as required by 29 U.S.C. � 658(a).

Bally's has not proven that it has been prejudiced in any way. Additionally, for the same
reasons that the second citation was issued within the six-month period, I find that the
"reasonable promptness" defense lacks merit. (Paragraphs 28-30.)

32. The second citation issued on January 20, 1988, was within
    the six-month period as required by Section 9 (c) of the Act as noted above.

PENALTIES

33. The Secretary alleges that Bally's willfully committed the
    violations. However, Bally's has consistently and in good faith asserted the work product
    privilege in a situation that is novel. The assessment of the most severe class of penalty
    is therefore inappropriate. The violation is found to be not willful. The substantive
    conditions, however, giving rise to this case are serious; iodine is a very severe
    irritant as evidenced by the numerous complaints. (Testimony of Ms. Kyner, Tr. 142;
    Paragraph 3.)

34. Under 17(j) of the Act, penalty assessments are to be based
    on four factors; size, gravity, good faith, and history. The OSHA compliance officer
    correctly calculated the size, gravity and history in his assessment. (Exhibit C-5;
    Exhibit C-6.) Based on an evaluation of these factors as applied to the circumstances in
    this case, including Bally's good faith, a penalty assessment of $600 is appropriate for
    each of the citations.

ORDER

It is hereby ordered that:

1. The violation of 29 C.F.R. � 1910.20(e)(1)(i) regarding
   employee representative access to employee exposure records, Citation 1, Item I is
   affirmed, and a penalty of $600 is assessed.

2. The violation of 29 C.F.R. � 1910.20(e)(3)(i) regarding
   OSHA access to employee exposure records, Citation 1, Item I is affirmed, and a penalty of
   $600 is assessed.

3. The test results which were reviewed in camera are herewith
   returned to Bally's. Bally's is directed to make available a copy of the test results to
   OSHA and one to the employee representative.

Paul A.Tenney

Judge, OSHRC

DATED: 28 FEB 1989 Washington, D.C.

FOOTNOTES:

[[1]] Commissioner Montoya did not participate in the deliberation or issuance of this
decision.

[[2]] Venuti testified that he asked for a technical report on
the glass washing machine emissions after reading OSHA's March 10 letter to Bally's, which
recounted numerous complaints about the machine. Venuti testified that he concluded from
the letter that Bally's probably would be subject to claims about the machine from
employees and OSHA. He testified that he told Richard Tartaglio, a lawyer who was Bally's
Labor Relations Manager, to find a prospective expert witness who could prepare a report.
Tartaglio testified that he arranged for the hiring of J.C. Anderson Associates through
Bally's construction consultants, Coastal Management. Veronica Ghetie of Anderson did the
iodine testing.

[[3]] At the time of the investigation and citation, that
provision stated:

� 1910.20 Access to employee exposure and medical records.

(e) Access to records -- (1) General. (i) Whenever an employee or designated
representative requests access to a record, the employer shall assure that access is
provided in a reasonable time, place, and manner, but in no event later than fifteen ( 15)
days after the request for access is made.

[[4]] At the time of the investigation and citation, that
provision stated, in pertinent part:

(3) OSHA access, (i) Each employer shall, upon request, assure the immediate access of
representatives of the Assistant Secretary of Labor for Occupational Safety and Health to
employee exposure and medical records and to analyses using exposure or medical records
....

[[5]] The current Commission Rules of Procedure govern these
cases, because the citations were issued after their effective date of December 8, 1986.
Rules of Procedure. Final Rule, 51 Fed. Reg. 32,002 (1986). Neither party argues that
those Rules affect the applicability of the work product doctrine in Commission
proceedings, and we hold that they do not.

[[6]] The judge noted that in an earlier decision by the U. S.
Supreme Court, Justice White, concurring, gave the opinion that the work product doctrine
should be largely confined "to its role as a limitation on pretrial
discovery[,]" United States v. Nobles, 422 U. S. 225,247 (1975) He urged that
generally, the work product rule does not limit a court's authority to order production of
evidence at trial. Id. at 250- 54. Justice Rehnquist (now Chief Justice) joined in that
concurrence. However, Justice Rehnquist wrote the Court's subsequent opinion in Upjohn,
and Justice White joined in that opinion. There is no issue here about production of the
records at trial or hearing. Also, the majority in Nobles stated:

[T]he concerns reflected in the work-product doctrine do not disappear once trial has
begun. Disclosure of an attorney's efforts at trial, as surely as disclosure during
pretrial discovery, could disrupt the orderly development and presentation of his case.

Id. at 239 (dicta).

[[7]] The judge cited certain patent cases as support for the
proposition that factual portions of Bally's report were unprotected. Loctite Co.v.
Fel-Pro Inc., 667 F.2d 577 (7th Cir. 1981); Union Carbide Co. v. Dow Chem. Co., 619
F.Supp. 1036 (D. Del. 1985). However, the reasons for compelling disclosure in those cases
do not apply here.

Union Carbide involved a request by the defendant in a patent infringement suit for access
to information that is required to be disclosed to the government as part of a patent
application.

..In patent cases, work-product immunity is not "extended to preparations for ex
parte proceedings such as patent proceedings," Choat v. Rome Industries, Inc., 462
F.Supp. [728] at 732 [(N.D.Ga. 1978)] ; Hercules v. Exxon Corp., 434 F.Supp. 136, 152
(D.Del. 1977).

Bulk Lift Intl., Inc. v. Flexcon & Sys., Inc., 122 F.R.D. 482, 491 (W.D. La. 1988),
(quoting Detection Sys., Inc. v. Pittway Corp., 96 F.R.D. 152, 155 (W.D.N.Y. 1982). In
fact, patent applicants have a legal duty to disclose to the U. S. Patent and Trademark
Office all facts relating to the equities of granting the application. E.g., Precision
Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 818 (1945). See
35 U.S.C. � 112 (patent applications must include "full, clear, concise, and
exact" written description of invention, and of manner and process of making it). See
generally, 60 Am Jur 2d Patents, �� 999, 1002. Thus, in Union Carbide, the court ruled
that documents sought were not confidential because they were prepared for the patent
application, and not "in anticipation of litigation." 619 F.Supp. at 1046-47,
1050-51.

In Loctite, the court dismissed a patent infringement suit because the plaintiff failed to
establish that a justifiable controversy existed. The plaintiff refused to disclose the
basic technical information on which it based its claim, on the ground that the
information was work product of its attorney. The court held that the work product
doctrine does not totally shield a litigant from the requirement that it specify the
patent infringement charges. 667 F.2d at 579, 582. Of course, Rule 26(b)(3) only protects
specific "documents and tangible things." Disclosure of the underlying facts may
be pursued by other means. The court in Loctite also stated:

Only where the document is primarily concerned with legal assistance does

it come within these privileges [attorney-client and attorney work product]; technical
information is otherwise discoverable.

Id. at 592. Similarly, it is undisputed here that the records of Bally's consultant were
"primarily concerned" with legal assistance. Id.

[[8]] The term "record" is defined at section
1910.20(c)(10) as follows:

"Record" means any item, collection, or grouping of information regardless of
the form or process by which it is maintained (e.g., paper document, microfiche,
microfilm, X-ray film, or automated data processing).

That definition is unchanged from the one in effect at the time of the citations, which
was found at section 1910.20(c)(9).

[[9]] That rule provides:

A party may discover facts known or opinions held by an expert who has been retained or
specially employed by another party in anticipation of litigation or preparation for trial
and who is not expected to be called as a witness at trial, only as provided in Rule 35(b)
or upon a showing of exceptional circumstances under which it is impracticable for the
party seeking discovery to obtain facts or opinions on the same subject by other means.

Bally's expert was not called as a witness and was not expected to be called. (Indeed, the
underlying facts are not the subject of the citations. Only Bally's failure to turn over
records is at issue.) Fed. R. Civ. P. 35(b) has no relevance here, because it applies only
to physical and mental examination of persons. Thus, the underlying facts known to the
expert would be subject to the same qualified work product protection as the records.

[[10]] Section 8(c)(1) gives the Secretary authority to require
employers to "make, keep and preserve, and make available to the Secretary" such
records as she:

... in cooperation with the Secretary of Health and Human Services, may prescribe by
regulation as necessary or appropriate for the enforcement of this Act or for developing
information regarding the causes and prevention of occupational accidents and illnesses.

However, that section has no language authorizing abrogation of work product principles.
Section 8(c)(3) does not even address the type of records involved here. It requires the
Secretary to provide for employee access only to "records of employee exposures to
potentially toxic materials or harmful physical agents which are required to be monitored
or measured under section 6 [29 U.S.C. � 655]. (Emphasis added.) Section 1910.1000, under
which employee exposure to iodine is regulated, does not require monitoring or measuring
per se OSHA's industrial hygienist testified to the same effect.

[[11]] The only understanding with OSHA that BaIly's has
acknowledged concerns a different matter which arose later. The understanding concerned
how Bally's would respond to OSHA's subpoena. It was agreed that a position statement by
Bally's would be an acceptable form.

[[1]] 1910.20 Access to employee exposure and medical records.

(e) Access to records. (1) General. (i) Whenever an employee or designated representative
requests access to a record, the employer shall assure that access is provided in a
reasonable time, place, and manner, but in no event later than fifteen (15) days after the
request for access is made.

[[2]] 1910.20 Access to employee exposure and medical records.

(e) Access to records. (3) OSHA access. (i) Each employer shall, upon request, assure the
immediate access of representatives of the Assistant Secretary of Labor for Occupational
Safety and Health to employee exposure and medical records and to analyses using exposure
or medical records.

[[3]] 1910.20 Access to employee exposure and medical records.

(a) Purpose. . . . Except as expressly provided, nothing in this section is intended to
affect existing legal and ethical obligations concerning the maintenance and
confidentiality of employee medical information, the duty to disclose information to a
patient/employee or any other aspect of the medical care relationship, or affect existing
legal obligations concerning the protection of trade secret information.