Hern Iron Works, Inc.

Plain-English summary

OSHA cited Hern Iron Works for willfully refusing to provide required injury and illness records during a 1988 inspection. The judge vacated the citation after concluding that the inspection was not supported by a valid warrant, subpoena, or consent. The Ninth Circuit reversed because the record showed that OSHA acted under a valid 1987 warrant and a federal district court had already upheld that warrant. Following the appellate mandate, the Commission reinstated the citation and remanded for expedited consideration of its merits.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1904.7
• Outcome: The willful record-access citation was reinstated and remanded for a decision on the merits.
• Key point: A citation could not be vacated for lack of legal inspection authority when substantial evidence established that OSHA acted under a valid warrant.

Full text (OSHRC public release)

Docket No. 88-1962

SECRETARY OF LABOR,

Complainant,

v.

HERN IRON WORKS, INC.,

Respondent.

OSHRC Docket No. 88-1962

ORDER

This case is here at the direction of the United States Court of Appeals for the Ninth
Circuit.  Dole v. Hern Iron Works. Inc. , [to be published at] 937 F.2d 612
(table) [15 BNA OSHC 1158 (full text)] (9th Cir. 1991) (unpublished), rev'g Hern
Iron Works, Inc ., 14 BNA OSHC 1446, 1987-90 CCH OSHD � 28,783 (No. 88-1962, 1989
ALJ).  In accordance with the Ninth Circuit's decision and mandate, we hereby
reinstate the citation issued to Hern Iron Works, Inc. ("Hern") alleging a
willful violation of 29 C.F.R. � 1904.7 for failure to provide to representatives of the
Secretary, upon their request, prescribed injury and illness records.  We remand this
case to Administrative Law Judge Benjamin R. Loye for consideration of the merits of the
citation.

In his decision below, Judge Loye relied on Commission precedent holding that section
1904.7 does not authorize representatives of the Secretary to inspect the required records
without a valid warrant, an administrative subpoena, or the employer's consent.  See
Taft Broadcasting Co., Kings Island Division , 13 BNA OSHC 1137, 1146, 1986-87 CCH
OSHD � 27,861, p. 36,490 (No. 82-1016, 1987), aff'd , 849 F.2d 990 (6th Cir. 1988).
  He found that, although the Secretary's representatives presented a 1987 warrant
when they sought to inspect Hern's records in May of 1988, the inspection was not based on
that warrant, but rather on newly received employee complaints.  Finding no valid
warrant, subpoena, or consent authorizing the inspection, Judge Loye vacated the citation.

The Secretary filed a petition for review with
the Commission, but the case was not directed for review and became a final order of the
Commission under section 12(j) of the Occupational Safety and Health Act ("the
Act"), 29 U.S.C. � 661(j).

The Ninth Circuit granted the Secretary's
petition for review, filed pursuant to section 11(b) of the Act, 29 U.S.C. � 660 (b).
  The court concluded that the judge's finding that the inspection was not conducted
pursuant to a warrant was not supported by substantial evidence in the record.  The
court noted that the record was "replete with credible evidence that the 1988 search
was pursuant to a valid 1987 warrant."  According to the court, the judge abused
his discretion in ignoring that evidence, particularly the August 1988 findings of a
federal district court, in a related action brought by Hern, that the 1987 warrant was
valid.  The Ninth Circuit therefore reversed the judge's decision and "remanded
with instructions to reinstate the citation."

Because the judge did not reach the merits of
the citation that we have reinstated herein, we remand this case to him to make those
determinations. Recognizing the need for prompt action in this case, we order expedited
proceedings pursuant to the Commission's Rule of Procedure at 29 C.F.R. � 2200.103(a).

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: September 6, 1991

SECRETARY OF LABOR,

Complainant,

v.

HERN IRON WORKS, INC.,

Respondent.

OSHRC DOCKET No. 88-1962

APPEARANCES:

For the Complainant:

William W. Kates, Esq., Office of the Solicitor,

U. S. Department of Labor, Seattle, WA

For the Respondent:

Harvey Richman, Esq.,

Coeur D'Alene, ID

Gary N. Herbert, Esq., Mountain States Legal

Foundation, Denver, CO

DECISION AND ORDER

Loye, Judge:

This proceeding arises under the Occupational
Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq .; hereafter called the
"Act").

On May 24, 1988, following receipt of two
employee complaints, the Occupational Safety and Health Administration (OSHA), attempted
to conduct an inspection at the workplace of Hern Iron Works, respondent in this action,
in Coeur D'Alene, Idaho (Tr. 68, 70).  Mr. John A. Hern, respondent's owner, was
informed of the reason for the inspection and asked to provide the Compliance Officers
with OSHA accident and injury logs as described in 29 CFR � 1904 (Tr. 71, 73).  Mr.
Hern asked to be shown a warrant (Tr. 71).  A copy of a warrant previously issued in
June 1987 was provided Mr. Hern (Tr. 72).  After speaking to his attorney, Mr. Hern
refused to cooperate with an inspection (Tr. 77-78).  Respondent was issued a
citation for violation of 29 CFR � 1904.7 which requires that "[e]ach employer shall
provide, upon request, records provided for in ��1904.2, 1904.4, and 1904.5. . ."
i.e. logs and summaries of occupational injuries and illnesses.

The Commission has found � 1904.7
unconstitutionally invalid insofar as it "purports to authorize an inspection of
required records without a warrant or its "equivalent," e.g. the employer's
consent or an administrative subpoena. . . " Taft Broadcasting Co., Kings Island
Division , 13 BNA OSHC 1137 (No. 82-1016, 1987), aff'd , 849 F.2d 990 (6th Cir.
1988).

There is no question that Hern did not consent
to inspection of its records.  No administrative subpoena was produced.  The
testimony indicates that although the Compliance Officer presented respondent with a year
old warrant, the inspection of respondent's workplace was not instigated for the purpose
of executing that warrant, but rather was the result of newly received employee
complaints.  Moreover, the Secretary does not argue that the inspection was
authorized by the June 1987 warrant; in fact her brief never mentions the warrant.

This judge is bound by the holding in Taft Broadcasting Co .  In the absence of
any evidence that OSHA's request for respondent's records was consented to or authorized
by facially valid compulsory legal process, respondent's failure to provide the requested
records cannot constitute the basis for citation.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law
relevant and necessary to a determination of the contested issues have been found
specially and appear in the decision above.  See Rule 52(a) of the Federal
Rules of Civil Procedure.  Proposed Findings of Fact or Conclusions of Law that are
inconsistent with this decision are denied.

Order

1. Willful citation 1, item 1 alleging violation of �1904.7 is DISMISSED.

Benjamin R. Loye

Judge, OSHRC

Dated: November 15, 1989