General Motors Corporation, Electro-Motive Division

Read the official release (oshrc.gov)

Plain-English summary

General Motors denied three employee requests for medical and exposure records because the employees had pending Illinois workers' compensation claims. The Commission held that the access requirements in 29 C.F.R. § 1910.20 did not supersede or alter state workers' compensation law and did not violate due process. It rejected GM's argument that the violations were de minimis because access to exposure and medical records can help employees evaluate and protect their health, even when the records may also be used in compensation proceedings. The Commission affirmed violations of the medical-record and exposure-record access provisions in all three cases. It reversed the willful classifications because GM sought and followed legal advice on a substantial unresolved question and had an objectively reasonable, although incorrect, good-faith basis for its position. The Commission reduced the penalty from $10,000 in each case to $1,000 in each case, for a total of $3,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.20(e)(1)(i); 29 C.F.R. § 1910.20(e)(2)(i)
• Outcome: Three record-access violations affirmed as non-willful; total penalty reduced from $30,000 to $3,000.
• Key point: State workers' compensation procedures do not displace OSHA record-access rights, but reasonable reliance on counsel about an unsettled legal issue can defeat a willful classification.

Full text (OSHRC public release)

Docket No. 82-0630_84-0781_84-0816

SECRETARY OF LABOR,

Complainant,

v.

GENERAL MOTORS CORPORATION,

ELECTRO-MOTIVE DIVISION,

Respondent.

LOCAL UNION 719, UNITED

AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA,

INTERNATIONAL UNION,

Authorized Employee

Representative.

DOCKET NOS. 82-0630,

84-0781,

84-0816

DECISION

Before: MONTOYA and WISEMAN, Commissioners.[[1/]]

BY THE COMMISSION:

Certain employees of General Motors Corporation, Electro Motive
Division ("GM"), filed requests with GM for access to its medical and exposure
records concerning them. Those requests were made pursuant to the records access rule, 29
C.F.R. � 1910.20, promulgated by the Secretary of Labor's Occupational Safety and Health
Administration ("OSHA"). GM denied the requests on the ground that they related
to pending worker's compensation ("WC") claims that those employees had brought
against it in Illinois. We now review the merits of the Secretary's citations issued to GM
based on those access denials.

GM claims that the access requests were invalid because they
effectively change Illinois' WC law, in violation of � 4(b)(4) of the Occupational Safety
and Health Act, 29 U.S.C. � 653(b)(4). That section states, "[n]othing in this Act
shall be construed to supersede or in any manner affect, any workmen's compensation law
..."[[2/]] GM contends that the result of enforcing the employees' requests would be
to give employees greater rights than GM has to pretrial disclosure of information
relevant to their pending WC proceedings. GM also argues that its refusal to provide
access is at most a de minimis violation of the records access rule, warranting no
penalty or abatement requirement.

Former Commission Administrative Law Judge Edward A. Bobrick
rejected GM's arguments, found a willful and serious violation in all three cases, and
assessed a $10,000 penalty in each case. We affirm the judge's findings of violations, but
find them non-willful and impose a $1000 penalty in each case, for the reasons that
follow.

I. Background

The 1982 case involves William Havell, an employee at GM's La
Grange, Illinois, facility. Havell had filed a claim against GM in 1979 under the Illinois
Worker's Compensation Act. 111. Rev. Stat. Ch. 480 � 138. The basis for that claim was
that Havell "injured his body while working."

In March 1982, Havell submitted to GM, through the law firm
that represented him in the WC claim, a signed request for access to "[a]ll medical
and exposure records" concerning him. The stated purpose of the request was
"Investigation and legal representation." Havell also specifically authorized
release of the records to the law firm.

Upon receipt of the records access request, GM sought an
opinion from its legal counsel about whether to comply. GM's legal counsel advised that
the request was invalid under � 4(b)(4) of the Act because the "obvious purpose of
this request under OSHA is to gather information for use in the [WC] matter that cannot be
gathered under the Illinois Compensation law." In support, the counsel noted that the
Illinois law allows no prehearing discovery regarding pending WC claims. In denying the
records access request, GM set forth the reasons supplied by its counsel.

The Secretary issued a one-item citation to GM in June 1982,
with a single $480 proposed penalty. Item 1A alleged a failure to provide Havell's
designated representative with access to GM's, medical records on him, contrary to �
1910.20(e)(1)(i).[[3/]] Item 1B alleged a failure to provide the representative with
access to requested exposure records that GM kept concerning Havell, contrary to �
1910.20(e)(2)(i).[[4/]]

In June 1983, shortly before the hearing on the merits, the
Secretary moved to amend the citation to allege that the item was both willful and
serious, and to amend the proposed penalty to $4800. The judge granted the motion.

There is no dispute that GM failed to comply with the rule.[[5/]] Accordingly, the
Secretary and GM submitted the case for resolution of only the following issues:

....the parties desire to limit this case to the questions of
whether Mr. Havell's request for access to medical and exposure records can be valid in
view of Section 4(b)(4) of the Occupational Safety and Health Act, the characterization
[sic] of the violation, if any, and the penalty, if any....

The two 1984 cases arose out of similar requests for records
access, filed by, or on behalf of, two other employees at the same facility. The parties
have agreed to be bound in those cases by the final decision in the 1982 case, except that
GM has the option of presenting additional arguments on the alleged willfulness and
proposed penalties in the 1984 cases.

II. Whether � 1910.20 violates � 4(b)(4), as applied here

The language of � 4(b)(4) (quoted above at n. 2) is quite
broad. However, we believe that the United States Court of Appeals for the D. C. Circuit
properly interpreted that language in its comprehensive decision in the lead standard
case. United Steel- workers of America v. Marshall, 647 F.2d 11891 1234-36 (D.C.
Cir. 1980). cert. denied ,453 U.S. 913, 101 S. Ct. 3148 (1981). It essentially held
that � 4(b)(4) means only that the Act and OSHA regulations are not to be interpreted to
alter the terms of any WC law.[[6]] Accord, Pratico v. Portland Terminal Co., 783
F.2d 255, 264-67 (1st Cir. 1985).

The OSHA records access rule does not change the terms of
either Illinois' WC Act or its Occupational Diseases Act. Ill. Rev. Stat. Ch. 48, � 138,
172.36 et. seq. ("Illinois Acts"). Nor must the Illinois Industrial
Commission (IIC), which governs the adjudication of cases under both Acts, do anything
inconsistent with their terms, as a result of � 1910.20.[[7/]] Thus, � 4(b)(4) has not
been violated.[[8/]]

Our reading of the court's decision in Steelworkers
supports this conclusion. The issue in Steelworkers was whether the medical removal
protection ("MRP") benefits for employees provided by the lead standard
superseded or affected WC laws in violation of � 4(b)(4). The employers argued that
because MRP benefits exceeded the benefit levels under WC laws for lead exposure, MRP in
effect impermissibly modified those laws. The court held that "though MRP may indeed
have a great practical effect on workmen's compensation claims, it leaves the state
schemes wholly intact as a legal matter, and so does not violate Section 4(b)(4)."
647 F. 2d at 1236 (emphasis in original). If MRP, which largely negated the WC limitations
on employees' recovery for lead-related illness, does not "affect" WC laws for
purposes of � 4(b)(4), certainly the records access rule that is now before us does not
"affect" them.

There was testimony that pretrial "discovery" per
se is not provided for under the Illinois Acts.[[9/]] However, those Acts provide
ample opportunity for both WC claimants and their employers to obtain medical and exposure
records for use in WC proceedings. For example, the Illinois Acts require that every
person rendering treatment or services in connection with a claim must turn over their
records to any party on written request. Id., � 138.8(a).[[10]] The IIC may permit
pre-trial depositions of any person whose testimony is deemed necessary by either party,
for use as evidence at trial. Id., � 138.16.[[11/]] The IIC is required to issue
subpoenas at the request of either party for the attendance of witnesses and production of
documents. Id .[[12/]]

Havell's effort to obtain information about his health through
the records access rule violates neither the letter nor the spirit of the Illinois Acts.
Procedures under those Acts are designed to minimize costs and to simplify and speed the
process, so that an eligible employee may gain prompt and equitable compensation. E.g.,
�� 138.16, .16a. See Kelsay v. Motorola, 74 Ill. 2d 172, 180-81, 384 N.E.2d 353,
355-57 (1978). As a result, those Acts do not provide for the pretrial discovery allowed
in certain other civil proceedings. Records access under � 1910.20, however, does not
conflict with these objectives because such access does not slow down or otherwise
interfere with Illinois WC proceedings. The Illinois Acts are not intended to negate
information rights that employers or employees have under other laws.

It is also noteworthy that Congress did not anticipate that the
required disclosure of employer records on toxic materials or harmful physical agents
would violate � 4(b)(4). The Act instructs the Secretary to issue regulations requiring
employers to maintain accurate records of all monitoring or measuring mandated under the
Secretary's standards. � 8(c)(3) of the Act, 29 U.S.C. � 657(c)(3). It further states:

Such regulations shall also make appropriate provision for each employee or former
employee to have access to such records as will indicate his own exposure to toxic
materials or harmful physical agents.

Id. (emphasis added). Section 8(c)(3) of the Act
requires appropriate provisions for access by each employee to medical and exposure
records.

Also, we agree with OSHA's formal interpretation that the rule
is not rendered unenforceable by the mere fact that an access request is related to
private litigation, including WC litigation. Access to Employee Exposure and Medical
Records; Partial Stay; Interpretations, 46 Fed. Reg. 40,490 (Aug. 7, 1981).[[13/]]
That interpretation was issued long before the citations in these cases, and it is
consistent with the specific mandate of records access in the Act.

That interpretation shows that � 1910.20 was not intended to
change WC discovery provisions. 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 WC proceedings for that reason. Here, GM does not claim
that the requested records fall under that exception to discovery (the so-called
"work product" doctrine), or under any other specific exemption from discovery.
It merely claims that � 1910 20 unavoidably conflicts with � 4(b)(4), whenever there is
a pending WC claim. Such a notion lacks merit.

Although the access required by the Act may have an indirect,
practical impact on the timing of certain disclosures in WC proceedings, it has no legal
effect on them. It does not change the terms of the Illinois Acts, or require actions
inconsistent with those terms in WC proceedings. We therefore conclude that the rule does
not violate � 4(b)(4).[[14/]]

In a related argument, GM claims that the records access rule
violates its due process rights. It relies on Wardius v. Oregon, 412 U.S. 470, 93
S.Ct. 2208 (1973). There, the Supreme Court held that a state criminal statute regarding
discovery denied the defendant due process of law. That statute required the defendant to
disclose, before trial, the identity of alibi witnesses he planned to have testify. It did
not explicitly require the state to disclose the identity of witnesses it planned to call
to refute the alibi. The Court stated:

It is fundamentally unfair to require a (criminal) defendant to
divulge the details of his own case while at the same time subjecting him to the hazard of
surprise concerning refutation of the very pieces of evidence which he disclosed to the
State.

412 U.S. at 476, 93 S.Ct. at 2212-13. However, we conclude that
this decision does not control the cases before us, because it is based on concern for the
rights of criminal defendants. The special protections given a criminal defendant are
simply not required in civil cases like WC proceedings. The Supreme Court has held that
"due process is flexible and calls for such procedural protections as the particular
situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92A S.Ct. 2593,
2600 (1972) (full panoply of rights given to criminal defendant does not apply to parole
revocations). Accord, e.g., Mathews v. Eldridge, 424 U.S. 319, 334,
96 S.Ct. 893, 902 (1976) (proceedings to terminate Social Security disability benefit
payments). WC proceedings need not adhere to the strictures of criminal or even civil
judicial proceedings, so long as the substantial rights of the parties are not infringed.
E.g., Crowell v. Benson, 285 U.S. 22, 48, 52 S.Ct. 285, 291 (1932) (rejecting
claims that summary administrative procedures under Federal WC law, Longshore and Harbor
Workers' Compensation Act (LHWCA), violate due process).

Section 1910.20 does not infringe the substantial rights of
parties in Illinois WC proceedings. Those rights are not infringed by the mere fact that
one party may obtain information from the other under another law, without having to
provide reciprocal information. The law that was unsuccessfully challenged in Crowell
v. Benson permitted an imbalance of prehearing information. That imbalance was
essentially similar to the imbalance that might exist in an Illinois WC proceeding, with
or without a related records access request under � 1910.20.[[15/]] The Court held that
due process was preserved nevertheless, because it was implicit under the law that all
"facts...and their sources shall be shown in the record and be open to challenge and
opposing evidence." Id. The same rights are preserved under the Illinois Acts.[[16/]]

Thus, � 1910.20 does not deprive parties due process in
Illinois WC cases, and GM's due process argument is rejected. We affirm a violation in
each of these three cases.

III. Whether the violations were willful

A willful violation is one committed with intentional, knowing
or voluntary disregard for the requirements of the Act, or with plain indifference to
employee safety. E.g., Williams Enterprises, Inc., 13 BNA OSHC 1249,
1256-57, 1986-87 CCH OSHD � 27,893, p. 36,589 (No. 85-355, 1987). It is differentiated
from other types of violations by a "heightened awareness -- of the illegality of the
conduct or conditions -- and by a state of mind -- conscious disregard or plain
indifference." Id., However, a violation is not willful if the employer had a good
faith belief that it was not in violation. The test of good faith for these purposes is an
objective one -- whether the employer's belief concerning a factual matter, or concerning
the interpretation of a rule, was reasonable under the circumstances. Id. 13 BNA OSHC at
1259, 1986-87 CCH OSHD at p. 36,591; Mel Jarvis Construction Co., 10 BNA OSHC 1052,
1053, 1981 CCH OSHD � 25,713, p. 32,060 (No. 77-2100, 1981).[[17/]]

Based on the particular circumstances here, we find that GM had
an objective, good faith basis for believing that it was not required to comply with the
terms of the records access rule. That basis includes, but is not limited to, its
reasonable, although in our view incorrect, interpretation of � 4(b)(4). We cannot find,
on the state of these records, that GM's refusal to comply actually was based on an
underlying, willful motive. Thus, we find that the violations are not properly classified
as willful.

Initially, we note that the issue before us is limited, due to the particular stipulations
between the Secretary and GM.[[18/]] As noted above, the Secretary stipulated that she
would be bound in the 1984 cases by the final decision regarding the 1982 case. Thus, if
the 1982 violation is found non-willful, the 1984 violations also should be found
non-willful. Our determination of whether the 1982 violation was willful depends on GM's
motives at the time the alleged violation occurred, which of course was before the
citation was issued. Events occurring after the citation may be relevant in determining
what GM's motives were for violating the regulation, but they could not be the basis for a
finding of willfulness in and of themselves.

We therefore first examine GM's initial basis for failing to
comply with Havell's request in 1982. The Secretary stipulated that GM routinely complies
with records access requests that it deems consistent with the cited regulation, and that
GM provided access in response to all of the requests it received in 1982 (approximately
10), except for Havell's. When it received Havell's request, GM sought the opinion of its
attorneys on whether to disclose the documents requested, in light of the pending WC
claim.

As our earlier response to GM's � 4(b)(4) arguments indicates,
its attorneys had a substantial legal question to answer. The language of � 4(b)(4) is
ambiguous, as the D.C. Circuit noted in Steelworkers. At that time, the Commission
had not addressed the permissible effects of the Act on WC cases, and Steelworkers
involved a somewhat different issue.

We therefore conclude that it was not imprudent for GM's attorneys to counsel it to ask
the Commission to clarify the effect of � 4(b)(4), before turning over documents relevant
to the WC claim to Havell's attorneys. The fact that GM acted consistently with the advice
of its legal counsel is also relevant to whether its noncompliance was willful. E.g.,
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128-30, 105 S.Ct. 613, 625-26
(1985). Thus, although GM's suggested interpretation of � 4(b)(4) may seem a bit
"strained," as the judge found, there was an objective, good faith basis for GM
to believe that it was excused from compliance with the records access rule in the context
of Havell's records access request.

In the judge's opinion, the violations were willful because GM
singled out employees who had filed WC claims by refusing them access to all medical and
exposure records, regardless of whether the records related to those claims. He found that
the fact that GM had sought and relied on its legal counsel's opinion did not negate
willfulness, because GM did not offer to turn over documents unrelated to Havell's WC
claim.

We note, however, that there is no evidence that GM knew, at
the time the 1982 citation was issued, that it had records on Havell that were unrelated
to the WC claim. When the 1982 violation occurred, the stated basis for Havell's WC claim
was merely that he had "injured his body while working." GM's counsel concluded
that the records access request arose out of that claim, and that its "obvious
purpose" was to gather information for use regarding the WC claim. The fact that the
records access request was filed by the attorneys who represented Havell in the WC case
underscores the plausibility of that conclusion.

The Secretary contends that GM's willfulness is demonstrated by
its failure to provide Havell access to all medical and exposure records, even when the WC
claim was amended, a few months after GM contested the citation, to specify that the
alleged injury was to the "lower back." This argument is without merit. We
cannot base a finding of willfulness on the mere fact that GM did not abate a cited
violation during the pendency of these proceedings. Employers are not required to abate
alleged violations until their contest is finally decided by the Commission, where the
contest is "initiated by the employer in good faith and not solely for delay and
avoidance of penalties . . . ." � 10(b) of the Act, 29 U.S.C. � 659(b).

Moreover, GM still had good faith bases for believing that
compliance was not required, even after Havell's WC claim was amended. GM claimed that
Havell's jobs never involved exposure to hazards about which records must be disclosed
under the regulation -- "toxic substances or harmful physical agents." See,
e.g. , � 1910.20(b)(1).[[19/]] There is no contention that this position was not
held in good faith, although GM subsequently waived that position as part of the
stipulations. GM also preserved the right to rely on the legal claims of industry in a
case then pending, which challenged the validity of the records access rule. Louisiana
Chemical Ass'n v. Bingham, 550 F.Supp. 1136 (W.D. La. 1982), aff'd per curiam,
731 F.2d 280 (5th Cir. 1984). There is no claim that GM's reliance on the industry's
arguments in that case was not maintained in good faith, although those claims were
rejected by the District Court following GM's notice of contest, and were rejected by the
Fifth Circuit in May 1984. GM's actions after the 1982 citation do not demonstrate that
its initial noncompliance was willful.[[20/]]

Thus, we cannot conclude that the 1982 violation was
willful.[[21/]] Because the Secretary has agreed to abandon the claim that the 1984
violations were willful if the determination is made that the 1982 violation was not
willful, we find that none of the violations should be classified as willful.

IV. Whether the alleged violations should be termed de
minimis

The basis for GM's argument that these alleged violations are de minimis is certain
dicta in a footnote to a Commission decision involving a similar records access
request. Johnson & Johnson Products, Inc., 11 BNA OSHC 2097, 1984-85 CCH OSHD
� 26,988 (No. 81-1339, 1984). There, the Commission vacated citations issued to two
companies for denial of employee requests for access to exposure records on the ground
that the employees had only requested access to medical records. In the relevant footnote,
the commission majority apparently concluded that, even if the employees had included
exposure records in their requests for access, the employers' failure to comply with these
requests would only have been a de minimis violation of the Act, because the
purpose of the requests was to obtain records for use in WC proceedings and WC proceedings
are unrelated to the safety and health purposes of the Act.[[22/]]

We must disagree with that dicta . Congress declared in the Act that WC laws serve a
similar purpose to the Act:

the full protection of American workers from job-related injury
or death requires an adequate, prompt, and equitable system of workman's compensation as
well as an effective program of occupational health and safety regulation . . . .

Former 29 U.S.C. � 676 (1971). (That section of the Act
established a National Commission on State Workmen's Compensation Laws, charged with
evaluating whether those laws were adequate, prompt, and equitable.)

WC laws promote occupational safety and health because they
provide a sure financial recovery for an employee accidentally injured on the job, and
make the employer responsible for paying the costs. See S. G. Borello & Sons, Inc.
v. Dep't of Industrial Relations, 48 Cal. 341, 769 P.2d 399, 406 (1989) (California WC
law). The Federal LHWCA is a comparable WC law. See Calbeck v. Travelers Ins. Co.,
370 U.S. 114, 124, 82 S.Ct. 1196, 1202 (1962). That Act is designed to motivate employers
to provide "the fullest measure of on-the-job safety" for their employees.
Bath Iron Works Corp. v. White, 584 F.2d 569, 575 (1st Cir. 1978). See also Alaska
Packers Ass'n v. Industrial Accident Commission of California, 294 U.S. 532, 541, 55
S.Ct. 518, 521 (1935). We therefore conclude that the purposes of the Act and of WC laws
are complementary.

We cannot adopt a general classification of de minimis for noncompliance with
records access requirements, although a particular departure from the rule's terms
conceivably could be so minor as to qualify as de minimis. The Act's recordkeeping
requirements "play a crucial role in providing the information necessary to make
workplaces safer and healthier." General Motors Corp., Inland Div., 8 BNA OSHC
2036, 2040-41, 1980 CCH OSHD � 24,743, p. 30,470 (No. 76-5033, 1980). Employee access to
medical and exposure records also can play a crucial role in protecting the employee's
health. See, e.g., Amoco Chemicals Corp., 12 BNA OSHC 1849, 1852,
1856, 1986 CCH OSHD � 27,621, p. 35,901 (No. 78-250, 1986) (employer had medical records
indicating that employee had pleural effusion -- a symptom of possible cancer -- but
failed to inform employee of condition).

Lastly, we conclude that GM's argument lacks merit because the
requests in these cases were not expressly limited to records relevant to the WC claims,
and the parties' submissions do not show that only such records were covered by the
requests. Havell had worked for GM for 20 years. GM does not dispute in this case that he
was exposed to toxic substances and harmful physical agents within the scope of the
records access rule. Its job descriptions for the positions held by Havell show that he
would have been subject to exposure to carbon monoxide, welding smoke and fumes, dust from
grinders, as well as noise from air hammers. Havell also told OSHA's inspector that he had
been exposed to caustic chemical solutions in tanks near his work area. GM has not
indicated that it attempted at any time to determine whether it has medical or exposure
records relative to Havell that go beyond his lower back injury claim. For these reasons,
the violations here are not properly classified as de minimis.

V. Whether the violations are serious

The judge found the violations to be serious because access to
the records covered by � 1910.20 is "paramount as a first step in avoiding serious
illness and injury caused by exposure in the workplace to the toxic substance."
However, the record does not indicate what records GM had relevant to Havell, or whether
they related to a serious illness or injury. No evidence was introduced that GM monitored
the areas where he worked for toxic substances or harmful physical agents. As the
Secretary notes, the rule does not require employers to make records, but merely to
provide access to existing records. Thus, the issue is whether a failure to turn over
records covered by the rule should be considered serious per se.

The definition of a serious violation under the Act is as
follows:

[A] serious violation shall be deemed to exist in a place of
employment if there is a substantial probability that death or serious physical harm could
result from a condition which exists, or from one or more practices, means, methods,
operations, or processes which have been adopted or are in use, in such place of
employment unless the employer did not, and could not with the exercise of reasonable
diligence, know of the presence of the violation.

29 U.S.C. � 666(k). There have been divergent views expressed
on whether violations similar to the violations we affirm here are serious under the
definition in the Act. In one case, an employer's failure to pay for medical examinations
was termed a serious violation of the inorganic arsenic standard (29 C.F.R. � 1910.1018).
Phelps Dodge Corp, v. OSHRC 725 F.2d 1237 (9th Cir. 1984), aff'ing, 11 BNA
OSHC 1441, 1448-49, 1983-84 CCH OSHD � 26,552 (No. 80-3203, 1983). The court affirmed the
Commission's reasoning on the issue, stating:

Phelps Dodge interprets the statute to require that to be
serious, the violation must potentially cause physical harm. This interpretation is
erroneous. Rather, the court looks to the harm the regulation was intended to prevent, and
if that harm is death or serious physical injury, a violation of the regulation is serious
per se .

725 F.2d at 1240 (emphasis in original). In a later case, the
Commission held that the fact that a regulation is designed to protect against a serious
hazard does not make every violation of its provisions serious. Duquesne Light Co.,
11 BNA OSHC 2033, 2038-39, 1984-85 CCH OSHD � 26,959, pp. 34,602-03 (No. 79-1682, 1984)
(isolated, one-day asbestos removal operation involving excessive asbestos exposure was
not shown to be sufficient to cause serious physical harm).

Thus, a complex issue is presented. However, we do not find it
necessary to resolve the issue at this time, as its resolution here would not affect the
abatement requirements or penalties involved and none of the parties' rights will be
adversely affected by our decision not to resolve this issue. We hereby limit the effect
of the judge's finding that the violations were serious to these cases. That finding is
not to be used, for example, as a basis for imposing greater liability on GM in any other
case. Nor will the Secretary be constrained in other cases. The Secretary may propose
appropriate penalty, classification and abatement requirements in any future citation, and
may rely on the underlying facts found here. Also, the union party's rights under the Act
are not prejudiced. (For example, the abatement date is unaffected.) There being no harm
to any parties, the Commission exercises its discretion not to decide the question of
seriousness here. See, e.g., Williams Construction Co., 6 BNA OSHC
1093, 1095 1977-78 CCH OSHD � 22,325, p. 26,895 (No. 11526, 1977) (Commission need not
decide whether judge erred in finding violation repeated, where penalty would be
appropriate for nonserious violation); Westburne Drilling. Inc. , 5 BNA OSHC 1457,
1977-78 CCH OSHD � 21,814 (No. 15631, 1977). See also , Leone Construction Co.,
3 BNA OSHC 1979, 1981, 1975-76 CCH OSHD � 20,387, p. 24,322 (No. 4090, 1976) (unreviewed
part of judge's decision does not constitute binding Commission precedent).

VI. Penalties

Having found the violations non-willful, we conclude that a
$1000 penalty is appropriate for each case. Before the citations were amended to allege
willfulness, the Secretary had proposed a penalty of $480 for the 1982 case and $1000 for
each of the 1984 cases. After the amendment, the Secretary's proposal was to assess
$10,000 in each case. The maximum allowable penalty for either a serious or nonserious
violation has been $1000 throughout these proceedings, under 29 U.S.C. � 666(b) and (c). Cf.,
Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, � 3101 (Nov. 5, 990)
(OSHA penalty limits increased seven-fold).

Penalties are to be assessed in light of the gravity of the
violation, the employer's size, good faith, and history of violations. 29 U.S.C. �
666(j). The gravity of the violations is substantial. As noted above, the cited provisions
derive from an express requirement in the Act that employees have access to medical and
exposure records concerning them. The purpose of that requirement is to allow employees to
assess their health and factors affecting it. E.g., S.Rep. No. 91-1282 91st Cong.,
2d Sess. 17 (1970), reprinted in Legislative History of the Occupational Safety and
Health Act, 157 (1971). Records access can play a crucial role in an employee's
protection of his or her health, as discussed above.

Also, GM is among the nation's largest corporations, and has a
history of violations. As to good faith, although we have found an objective, good faith
basis for GM's noncompliance, its failure to provide access after it knew that the
requests were not limited to the subject of the WC claims does not indicate a high degree
of good faith.

Thus, the citation in each case before us is affirmed as a non-willful violation, and a
total penalty of $3000 is assessed, representing $1000 for each case.

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: February 15, 1991

SECRETARY OF LABOR,

Complainant,

v.

ELECTRO-MOTIVE DIVISION,

GENERAL MOTORS CORPORATION,

Respondent.

OSHRC Docket No. 82-0630

DECISION AND ORDER

Appearance:

FRANCIS X. LILLY, Esq., Solicitor of Labor,

JOHN SECARAS, Regional Solicitor,

KENNETH HENRY, Esq., Office of the Solicitor,

Chicago, Illinois for

Raymond J. Donovan, Secretary

of Labor, U.S. Department of Labor, Complainant.

Charles M. Chadd, Esq., Pope, Ballard, Sheppard

& Rowle, Ltd.

for Electro-Motive Division,

General Motors Corporation, Respondent.

Jerome Schur, Esq., Katz, Friedman, Schur & Eagle

Attorney for Local 719, United Automobile,

Aerospace and Agricultural Implement

Workers of America (UAW), the

Authorized Employee Representative.

BOBRICK, Judge

This proceeding was commenced pursuant to Section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. ,
(hereinafter referred to as the "Act"), wherein Respondent, Electro-Motive
Division, General Motors Corporation, contested a Citation issued by Complainant, Raymond
J. Donovan, Secretary of Labor, U.S. Department of Labor.[[1/]]

The Citation charged Respondent with a serious violation of the
Occupational Safety and Health Standards, Subpart C-General Safety and Health Provisions,
29 C.F.R. �1910.20, entitled Access to Employee Exposure and Medical records (hereinafter
referred to as the "Standard"). The Citation alleged violations of 29 C.F.R. �
1910.20e(1)(i) and (e)(2)(1) [[2/]] as follows:

1A. 29 C.F.R. � 1910.20(e)(1)(i): The employer did not,
whenever an employee or designed representative requests access to a record, assure that
access is provided in a reasonable time, place and manner but in no event later that
fifteen (15) days after the request for access is made:

On March 18, 1982, the representative of William Havell
requested access to all of Mr. Havell's medical records. None were provided.

1B. 29 C.F.R. 1910.20(e)(2)(i): The employer did not, upon
request, assure the access of each employee and designated representative to employees
exposure records relevant to the employees:

On March 18, 1982, the representative of William Havell
requested access to all of Mr. Havell's exposure records. None were provided.

The Citation was issued as a result of an investigation prompted by a complaint made by an
employee to the Occupational Safety and Health Administration (hereinafter
"OSHA") concerning a denial by Respondent of a request by the employee for his
medical and exposure records.

FACTS OF CASE

The relevant facts in this case are fairly straightforward and,
to a great extent, have been stipulated by the parties. [[3/]]

Electro-Motive Division, General Motors Corporation, is and at
all relevant times hereto was, engaged in a business affecting interstate commerce, to
wit, the manufacture of diesel engines and related activities (Complaint, Par. Il and III;
Answer, Par. II and III). At all times relevant to this matter, Respondent had kept and
maintained employee exposure records and employee medical records as such terms are
defined by 29 C.F.R. � 1910.20(c)(2)(5) and (6) (Stip. Par. 2).

William Havell, an employee of Electro-Motive since 1962, and
during all times mentioned herein, filed a claim against Respondent on or about April 3,
1979, pursuant to the Illinois Workers' Compensation Act (Stip. Par. 2, 3 and Ex. A and
G). The employee subsequently filed an amended claim in September, 1982. The injury
alleged by the employee in his compensation claim was for an injury to his lower back
suffered on January 24, 1979. This workers' compensation claim was pending all during
relevant times involving these proceedings (Stip. Par. 3 and Exhibit B). The employee
retained a law firm to represent him with respect to his claim for workers' compensation
benefits (Stip. Par. 4).

In March 1982, the employee executed an "Authorization for
Release of Medical Record Information Pursuant to 29 C.F.R. � 1910.20" authorizing
the release by Respondent of "any and all medical and exposure records" to the
attorneys retained by him as his "designated representative" as said term is
defined by 29 C.F.R. � 1910.20(e)(3) (Stip. Par. 6 and Exhibit D). At the same time, the
employee executed a "Request for Access to Medical or Exposure Records"
requesting that his designated representative, his attorneys, be provided access to
"all medical and exposure records" (Stip. Par. 7 and Exhibit E). This request
was apparently made pursuant to 29 C.F.R. � 1910.20 and to joint guidelines developed and
agreed to by Respondent and the employees Collective Bargaining Representative, such
guidelines being entitled, "Guidelines Implementing the OSHA Standard on Access to
Employee Exposure and Medical Records." The request was made on a form provided by
the Respondent pursuant to these guidelines (Stip. Par. 5 and 7 and Exhibits C and E). The
stated purpose of the request for the records was "investigation and legal
representation" (Stip. Par. 6 and 7, Exhibits D and E). Nothing in the authorization
or the request for access limited the use of the records sought by the employee or his
attorneys (Stip. Par. 7).

Copies of the above mentioned forms were sent by the employees'
attorney on March 18, 1982 to Respondent along with a request for all of the employees
medical and exposure records. Said request was received by Respondent on March 19, 1982
(Stip. Par. 8 and Exhibit F). Subsequently Respondent, after obtaining a letter from its
attorney advising it on matters dealing with access to medical and exposure records under
the Standard, refused to comply with the employees request and continues to refuse to
comply with the aforementioned request (Stip. Par. 10, 11, Ex. H).

Respondent had granted its other employees, and their
designated representatives, access to medical and exposure records and had guidelines for
that purpose (Stip. Par. 5). For example, in 1982 Respondent processed approximately ten
requests for access in its Electro-Motive Division and provided access in all but the
present case (Stip. Par. 5). In this case, upon receipt of employee's request for access,
Respondent obtained a legal opinion from its counsel as to the validity of the request
(Stip. Par. 5 and 11, Ex. H). Respondent's Counsel's opinion was that the request was
invalid because it was made while the employee had a pending workers' compensation claim,
and that it sought to gather information, by use of the cited standard, that was denied
him under Illinois Law (Stip. Exhibit H). Respondent denied the request and did not
provide the employees attorney with the employees medical and exposure records (Stip. Par.
10).

The laws in Illinois relating to injuries or diseases arising
out of the course of employment are the Illinois Workers' Compensation Act, Ill. Rev.
Stat. Ch. 48, �� 138 et seq., and the Illinois Occupational Disease Act,
Ill. Rev. Stat. Ch. 48, �� 172.36 et. seq. (hereinafter collectively referred to as the
"Workers' Compensation Law").

The Illinois Workers Compensation Law does not provide for the
type of discovery usually associated with proceedings in the Federal District Courts or
before Administrative bodies such as the Occupational Safety and Health Review Commission.
However, both the Workers Compensation Law and the rules governing practice before the
Industrial Commission do provide their own form of discovery.

The Illinois Workers' Compensation Law provides that the "Commission ...
or...Arbitrator shall on written request of either party... issue subpoenas for the
attendance of such witnesses and production of such books, papers, records, and documents
as shall be designated in said application..." (Ill. Rev. Stat. Ch.48, � 138.16).
Moreover, Section 8 of the Workers' Compensation Law specifically provides for access to
medical records:

Every hospital, physician, surgeon, or other person rendering
treatment or services in accordance with the provisions of this Section shall upon written
request furnish full and complete reports thereof to, and permit their records to be
copied by, the employer, the employee or his dependents, as the case may be, or any other
party to any proceeding for compensation before the Commission, or their attorneys. (I11.
Rev. Stat. Ch. 48, �138.8(a).

This is a form of discovery for both parties (Tr. 86-88, 90,
91).

Following the Workers Compensation Law are the rules governing
practices before the Industrial Commission. These rules provide for the issuance of
subpoenas to compel witnesses and/or documents to be produced at time of hearing (Resp.
Ex. No. 1, Rule No. 3(4). Evidence dispositions can be taken before or after hearings;
this includes the use of interrogatories (Resp. Ex. No. 1, Rule No. 3(5). Lastly a
claimant /employee must submit himself to an examining physician, as properly arranged by
the employer (Resp. Ex. No. 1. Rule No. 2(10).

As a result of Respondent's refusal to provide the medical and
exposure records to the employee, as requested, a complaint was filed with the Complainant
alleging a violation of 29 C.F.R. � 1910.20 et . seq. An inspection was
thereupon conducted of Respondent. A Citation and Notification of Penalty was issued on
May 17, 1982, as a result of the inspection, alleging a two-part, single, serious
violation of 29 C.F.R. �1910.20 and its subparts, along with a proposed penalty of
$480.00 (Complaint, Par. IV(c); Answer, Par. IV(c). Respondent duly contested the
Citation, giving rise to this case. On August 3, 1982, pursuant to its request, the
Authorized Employee Representative, Local Union 719, United Automobile Aerospace and
Agricultural Implement Workers of America (UAW), was granted party status in this case.

On June 10, 1983, the Complainant filed a Motion which sought
to amend his Complaint and the Citation to allege a Willful-Serious violation of the Act
and the regulations promulgated thereunder. This Motion further sought to amend the
proposed penalty to $4,800.00. The Motion was addressed at the hearing held herein on June
22, 1983. By reason of the fact that both parties indicated that neither of them would
alter or change their planned introduction of evidence, whether the Motion was granted or
not, (Tr. 8), the Motion was held in abeyance and taken under advisement for later
disposition at the conclusion of the case after all the parties had filed their post trial
brief and had an opportunity to brief the issue (Tr. 8).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. WHETHER THE SECRETARY'S MOTION TO AMEND HIS COMPLAINT

AND THE UNDERLYING CITATION AND NOTIFICATION

OF PENALTY SHOULD BE GRANTED

On June 10, 1982, 12 days before trial, the Complainant filed a
Motion to Amend his Complaint, which in essence sought to change the nature of the alleged
violation from serious to willful-serious, and which amended the proposed penalty to
$4,800. Respondent objected to the amendment on the grounds that the case had been pending
for approximately a year, the amendment was proffered less then two weeks before trial,
and that it seriously changed the nature of the case.

We find that since the Complainant has the burden of proving,
by a preponderance of the evidence, the existence of its allegations and since both
parties indicated that their proofs offered at hearing would not be affected one way or
the other by granting the amendment (Tr. 8), we see no prejudice coming to Respondent by
allowing the filing of said amendment.

Case law is quite clear on the matter that in the absence of
prejudice, motions to amend are to be freely granted. Miller Brewing Co., 7 BNA
OSHC 2.55, 1980 CCH OSHD � 24,168 (1980); United Cotton Goods, Inc., 10 BNA OSHC
1389, 1982 CCH OSHD � 25,928 (1982); Brown & Root, Inc., 8 BNA OSHC 1055, 1980
CCH OSHD � 24,275 (1980). Accordingly, Complainant's Motion to Amend his Complainant is
hereby GRANTED.

II. WHETHER 29 C.F.R. � 1910.20 et. seq. VIOLATES SECTION

4(b)(4) OF THE ACT, 29 U.S.C. � 653 (b)(4)

Respondent raises as the principal issue in this case, and as
its primary defense to the Citation, that enforcement of the cited standard, by way of the
Citation, under the facts of this case runs afoul of Section 4(b)(4) of the Act. Section
4(b)(4) specifically mandates that:

Nothing in this Act shall be construed to supercede or in any
manner affect any workmen's compensation law or to enlarge or diminish or affect in any
other manner the common law or statutory rights, duties, or liabilities of employers and
employees under any law with respect to injuries, diseases, or death of employees arising
out of, or in the course of, employment.

In its factual context Respondent raises the argument whether
29 C.F.R. � 1910.20, et. seq., "on access to employee records can
validly permit an employee with a pending workers' compensation claim to have access to
his employer's medical and exposure records for use as discovery in that case at a time
when he is denied those records under state workers' compensation law."

Respondent essentially argues that the Illinois Workers
Compensation Law does not permit pretrial discovery by one party, the employee in this
case, against the other, that being the Respondent; and that if the employee (or his
attorney) is allowed use of 29 C.F.R. � 1910.20 to gain access to these records, the
employee would be granted a right that is denied him under Illinois compensation law and
give him an unfair advantage not otherwise provided for in the Workers' Compensation Law.

Respondent views the employee obtaining his medical and
exposure records under 29 C.F.R. � 1910.20 prior to the compensation hearing, when as it
alleges there is no such right available under the Illinois Workers' Compensation Laws, as
the granting of a right that

"would upset the careful balance that exists in the
Illinois law in the trial of workers' compensation cases and would grant rights to
employees that they do not possess under state compensation law."

Respondent sites his expert witness in compensation law as
support for this effect (Tr. 80, 81, 89). Thus goes Respondents argument that to require
it to produce the medical and exposure records would run against the very prohibition of
Section 4(b)(4) of the Act since allowing the request for access in this case would both
enlarge the rights of employees and diminish the rights of employers under the Workers'
Compensation Law. This in Respondent's mind is a preemption of state law relating to
workman's compensation. Respondent in support of its argument cites: United
Steelworkers of America v. Marshall, 647 F. 2d 1189, 1235-36 (D.C. Cir. 1980); cert.
denied, 453 U.S. 913 (1981). We disagree with Respondent's position for several
reasons.

The thrust of Respondent's argument in this case is that the
cited Standard upsets what it perceives as a balance struck by the Illinois Workers'
Compensation Law between employers and employees, and thus application of the Standard
violates the underlying enabling statute. The Standard does this, according to Respondent,
by granting rights to employees which they do not have under Illinois law. We fail to see
this result.

In finding our way in resolving the issues herein it is important to start at that modicum
of legislative history that might impact upon our understanding of the full implications
of Section 4(b)(4) of the Act. It appears that all that is known about 4(b)(4) is that at
the time of the passage of the Act, all fifty states had legislated some form of workers'
compensation system that applied to work related accidents and injuries (A. Larson, 1
Larson's Workmen's Compensation, Desk Edition, Section 5.30, at 2-17 (1980 with 1983
Cumulative Supplement). We see that Congress, being concerned about state workers'
compensation benefits, had no intention of infringing upon states' rights in this area;
and this is about all we know about Congress' intentions. ( See, e.g. , S.
Rep. No. 1282, 91st Cong., 2d Sess. 2 (1970), at 18 and note 55 at 25; Legislative
History of the Occupational Safety and Health Act of 1970, 92nd Cong., 1st Sess.
(June, 1971) note 53 at 165).

The United States Court of Appeals, in United Steelworkers
of America, AFL-CIO-CLC v. Marshall, et al., 647 F. 2d 1189 (D.C. Cir. 1980), cert.
denied, 101 S. Ct. 3148 (1981) examined Section 4(b)(4) in the course of its review
of the Secretary's newly promulgated lead standard (29 C.F.R. � 1910.1025, et. seq.) .
Finding the legislative history to be of little value in its review of this section (647
F. 2d, at n. 70, 1234), the Court proceeded to seek the best reading of the section. The
Court followed this path as a result of its opinion that a literal reading of it would
indicate that "any health standard that reduces the number of workers who become
disabled will of course 'affect' and even 'supersede' workers' compensation by ensuring
that those workers never seek or obtain workmen's compensation benefits" (647 F. 2d,
at 1234-1235). What the Court did recognize here, as a general proposition, was that
almost everything associated with the Act would have some practical effect on state
workers' compensation laws.

The court then turned its attention to just "what does Section 4(b)(4) mean,..."
647 F. 2d at 1235. The Court in this regard stated:

We see two plausible meanings. First, as courts have already
held, Section 4(b)(4) bars workers from asserting a private cause of action against
employers under OSHA standards. Jeter v. St. Regis Paper Co., 507 F. 2d (5th Cir.
1975); Byrd. v. Fieldcrest Mills, Inc., 496 F. 2d 1323 (4th Cir. 1974). Second,
when a worker actually asserts a claim under workmens' compensation law or some other
state law, Section 4(b)(4) intends that neither the worker nor the party against whom the
claim is made can assert that any OSHA regulation or the OSH Act itself preempts any
element of the state law. For example, where OSHA protects a worker against a form of
disablement not compensable under state law, the worker cannot obtain state relief for
that disablement. Conversely, where state law covers a wider range of disablements than
OSHA aims to prevent, an employer cannot escape liability under state law for a
disablement not covered by OSHA. In short, OSHA cannot legally preempt state compensation
law, even if it practically preempts it in some situations. (647 F. 2d, at 1235-1236)

The Court concluded that although the lead standard's Medical
Removal Programs may "have a great practical effect on workmens' compensation claims,
it leaves the state schemes wholly intact as a legal matter, and so does not violate
Section 4(b)(4)." 647 F. 2d at 1236. The Court thus took the position that only
substantive intrusions into state workers' compensation laws would be violative of Section
4(b)(4). We likewise will follow this general principal. As will be discussed below we
fail to find any substantive intrusions into the Illinois Workmens' Compensation Laws, as
argued by Respondent, which would justify our finding any involvement of Section 4(b)(4)
in the enforcement of the Citation herein. At best Respondent's claim rest upon a
procedural rule having little, if anything, to do with the basic rights and obligations
within the Workmans' Compensation Law, and has little impact upon the disposition of a
workman compensation claim which may go to hearing.

Respondent makes much of the proposition that some documents used at a workman's
compensation hearing are only available to each party at the "time of hearing"
and not before. In Respondent's view "the Illinois Workers' Compensation Laws do not
permit pretrial discovery by one party from the other," and that "the OSHA rule
on access to records cannot be used to override rights existing under state workers'
compensation law." We find that the facts of this case and the implications reached
from these facts are not consistent with Respondent's view.

Under the rules governing practice before Illinois Industrial
Commission, subpoenas for documents, depositions and interrogatories, prior to trial are
allowed (Ex. R-1, Rules 3-(4) and (5). Another example of prehearing discovery is
Commission Rule No. 11-(7)(A)(3) and (C). This rule requires that, where an employer
claims insufficient information to determine liability for the payment of temporary total
compensation, said employer shall have the responsibility of seeking out said information.
The employee is required to provide the appropriate authorizations to the employer to
facilitate this release of medical information (Resp. Ex. No. 1). Additionally, the
statute empowers employers to require employees to undergo physical examinations, at the
employer's expense, and receive the results from said examination. All of which is prior
to hearing (Ill. Rev. Stat. Ch. 48, Sections 138.12 and 19(c). True, Illinois Workmens'
Compensation Law does provide for the production of some documents only at time of hearing
but these provisions have the sole purpose of making sure that "the process and
procedure before the Commission (shall) be as simple and summary as reasonably may
be." (Ill. Rev. Stat. Ch. 48, Section 138.16). Lastly, of course, Section 8 of the
Illinois Workmans' Compensation Law specifically provides for access to medical records,
without any reference to the date of the compensation hearing.

In view of the prehearing discovery allowed under the Worker's Compensation Law, among its
other provisions, Respondent's characterization that the timing of the production of a
medical record is some sort of substantive right rings a hollow note; we believe
Respondent incorrectly eschews what is clearly a minor procedural matter so as to achieve
a particular result herein. This we find is particularly true since as a matter of custom
and practice in workman's compensation proceedings the very documents which now forms the
basis of this case are generally exchanged by parties prior to the compensation hearing
(Tr. 90-91).

We fail to find any substantive intrusions, as a matter of fact
and law, into the Illinois Workmens' Compensation Law, as alleged by Respondent, (or
otherwise under any other set of facts), in having an employer comply with the cited
Standard. Looking directly to the Standard we find an absence of any provision providing
workers with greater or lesser benefits in state workmen's compensation claims, nor can
such an effect be attributed to this Standard. Additionally, we find no provision
providing benefits for illnesses and injuries not recognized under some state's workers'
compensation laws. The only right that is provided by the cited Standard is the right of
an employee to control his own destiny by granting him the tools through which he can
ascertain what effects his work environment may have had, is having, or will have, on his
body.

True we do find some practical effects upon the timing of the
exchange of some documents that may or may not be used in a workman
compensation hearing, but as a matter of law, this has no substantive significance
whatsoever and is nothing more than incidental in nature. Indeed the Courts recognize that
the Standard may have some practical affect on compensation laws, but that this is of no
legal significance since the cited Standard, as written and as enforced, leaves theUnited
Steelwor compensation law wholly intact. United Steelworkers of America,AFL-CIO-CLC v.
Marshall, et al, supra, at 1236. Additionally the Courts have recognized that
incidental intrusions into other areas of interest, resulting from compliance with the
Standard, does not affect the validity of the Standard or render the Standard
unenforceable or flawed. This is so because the Standard "is a duly authorized
regulation, reasonably related to its underlying statute"...and its goal is to
promote healthful working conditions." Louisiana Chemical Association v. Bengham
et al, 550 F. Supp. 1136, at 1145 (W.D. La. 1982), affirmed 731 F. 2d 280 (5th Cir.
1984).

Within a practical setting it is interesting to note, as above
mentioned, that the early production of the documents, which Respondent so dearly and
assiduously claims to be a violation of Section 4(b)(4) are, prior to the hearing,
customarily exchanged between the parties (Tr. 90, 91).

The obvious conclusion to be drawn is that enforcement of 29
C.F.R. � 1910.20 does not violate Section 4(b)(4). Although there may be some practical
affects on state workers' compensation proceedings, and in this case such practical
affects appear minimal, the early production of the requested records by way of the
Standard has no substantive effects whatsoever. The Standard grants to parties under
Illinois law no greater rights than already possessed. Respondent's argument that 29
C.F.R. � 1910.20 is in violation of Section 4(b)(4) of the Act, as a matter of law, is
found in error.

Respondent makes much of the fact that the employee, who had
requested his medical or health records, had filed a workmens' compensation claim for an
injury to his back...and that he would get and use the records, prior to the compensation
hearing.

Indeed, Respondent's arduously proclaims that by reason of this, to find the Standard
enforceable and require production of the medical records to the employee/claimant, would
be tantamount to making employers "helpless" in preparing their defenses to
claims, thus "materially changing the structure and fabric of Illinois Law" and
finally creating a "one sided proceeding" violating "the dictates of due
process of law." We find it difficult to grasp the enormity of the situation, as
proclaimed by Respondent, for several reasons. First, as above mentioned, there is
significant pre-hearing discovery provided by the Illinois Compensation Law and Rules
Governing Practice used before the Industrial Commission hearing these cases (pp. 12, supra ).
Secondly even assuming, arguendo, that everything Respondent claimed the employee was
going to do with the records he in fact did do, and the employee had gained an advantage,
we would still, nonetheless, find Respondent's argument without persuasion since the
Courts have recognized that such advantage is incidental and of no legal consequence when
looking to the promotion of healthful working conditions under the Standard and Act
itself. Louisiana Chemical Association v. Bingham et al, supra at 1145[[4/]].
Lastly Respondent's argument carefully omits or glosses over some of the vital facts of
this case, and the practical and significant ramifications which would result if we were
to acquiesce to it's argument.

Looking to the record of this case, we find respondent
carefully omitting any reference to the fact that the employee from the start requested
both his "medical and exposure" records (Stipulation of Fact, Para. 7 and 8, Ex.
D, E, F).  Respondent's response to this request was that no documents of any
kind were to be provided to the employee, and indeed none were provided (Stipulation of
Fact, Para. 10, 11, Ex. H).  With respect to Respondent's failure to provide exposure
records, these records hardly seem relevant to a back injury claim.  Health records
which might show health problems by reason of exposure to toxic substances is also hardly
a type of record which might relate to an employee's back injury.  That the employees
request was made solely for the purpose of getting medical records for use in his
compesation case is not clear from this record, and was certainly not definitely
known to Respondent. [[5/]]  The request came approximately three years after the
filing of the workmans' compensation claim.  The employee informed the Compliance
Officer who investigated the case of his carobn monoxide exposure (Tr. 37).  He
complained of chemical exposure in his complaint to OSHA.  He worked near tanks
holding caustic chemicals and was exposed to welding fumes (Tr. 37,44).

It would hardly seem reasonable to any fair minded person that
under the circumstances of this case, General Motors Corporation is a "helpless"
employer, as it characterizes itself, being put through the paces by an employee who, for
whatever reason, sought to obtain his medical and exposure records, as did the employee in
this case. Respondent's logic seems a bit askew in its position that the Illinois law on
workmens' compensation would be turned on its head if enforcement of the Standard allowed
for an employee to get his medical and exposure records prior to a compensation hearing
which involved a back injury. If anything, it is the cited Standard that is being set upon
when an employee, who complains of exposure to carbon monoxide and other chemicals, is
denied his medical and exposure records solely by reason of the fact that three years
earlier he filed a workmans' compensation claim for a back injury. We find the actions of
Respondent in this regard most egregious since only a part of the records sought by the
employee might have had some relevance to the workmans' compensation claim. We can not
find any real practical disadvantage to the Respondent, of any significance, by way of the
employee having access to its own medical and exposure records prior to the compensation
hearing date.

As above discussed we do not find any legal or factual
significance in the application of Section 4(b)(4) by reason of the requested documents
being provided under the cited Standard, albeit that part of said documents might possibly
being used later in a workmens' compensation proceedings. Quite the contrary, we would
find considerable harm done to the purposes of the Act, the rights of the employee, and
the benefits due him under the Act if we were to apply Section 4(b)(4), as argued by
Respondent. In reaching our conclusions that 29 C.F.R. � 1910.20 does not violate Section
4(b)(4) of the Act, we find a rather significant synergistic practical result involving
and combining attainment of the purposes of the Act with providing an employee with a
timely method to recognize occupational dangers to his health and whether he had indeed
suffered adversely from the effects of his exposure to the hazardous occupational safety
or health condition. We find, in rejecting Respondent's argument, a practical and
equitable result, comporting with fundamental fairness and ordinary due process.

The employee access rule, 29 C.F.R. � 1910.20 et seq. ,
is essential to generate information called for by key provisions of the Act. As the House
Committee stated, "[a]dequate information is the precondition for responsive
administration of practically all sections of this bill." 45 Fed. Reg. 35245.
Adequate standards cannot be formulated by OSHA without the participation of employees,
whose firsthand experience is frequently critical to bringing a hazard to the attention of
OSHA under 29 U.S.C. 657 (f)(1). 45 Fed. Reg. 35245. To participate, employees need all
available information about hazards in their workplaces. Employee participation in
achieving safer, healthier workplaces is crucial since, as the Supreme Court has
recognized, "OSHA inspectors cannot be present around the clock in every
workplace." Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1979). This is
particularly true at the present time when government emphasis is off regulatory
enforcement. Currently there is more of an onus upon the employee to be on the alert for
occupational safety and health hazards so as to avoid their dangers. Uninterrupted access
to ones own exposure and medical records could not be more important to the employees well
being, especially in a time when exposure to exotic and unusual chemicals have an effect
upon individuals only discernable through close medical observations. [[6/]]

As pointed out by the Authorized Employee Representative in its Brief, if we were to look
at the problem in its practical day to day and on the job setting, to allow
Respondent's position would produce anomalous response. For instance, an employee denied
access to his medical and exposure records would not be able to decide intelligently
whether to seek medical treatment for suspected injuries other than those of the workmans'
compensation claim. A worker under Respondent's proposed interpretation would be denied
information concerning his exposure to toxic materials at least for the duration of his
claim, including appeals, or until the Illinois three year statues of limitations had run.
An employee with an injured back would be unable to learn whether he had been exposed to
asbestos or other toxins.  Family members who may have been exposed to toxic
material, through contact with the employee, would be deprived of all knowledge necessary
to seek treatment under Respondent's rule.

Finally, as argued by the Authorized Employee Representative, to follow Respondent's
argument on no access would in essence harm workplace health and safety by denying
necessary information to all employees who happened to have a workers' compensation claim.
Such a claim could be pending for years. During this time the Employer could deny his
employee crucial knowledge affecting medical treatment -- even for conditions wholly
unrelated to the compensation claim. For instance, an employee with a claim pending for a
finger injury could be denied information about exposure to toxic chemicals affecting his
lungs. This information might be needed by the employee's treating doctor. In effect an
exposed employee or a sick employee would have to choose between his State sanctioned
compensation claim or his health. To follow Respondent's argument and interpretation of
Section 4(b)(4) would in effect be a danger to employees who have compensation claims
pending and who needed access to medical records for other occupational safety and health
matters.

Respondent's approach would lay the Act's procedures open to
cynical gamesmanship in which a worker with a compensation claim is forced to choose
between filing the compensation claim or seeking access to his medical and exposure
records. Thus Respondent's attitude would chill workers' compensation remedies mandated by
Illinois Law ...which in itself could be said to be a substantive diminishment of
compensation laws on employment injuries. Frankly we find this situation more of a legal
and practical reality than the one forwarded by the Respondent as allegedly impacting on
substantive rights under the Workmans' Compensation Law.

While Respondent portrays the employee who requested his
medical and exposure records as an individual who seeks an advantage in a workmens'
compensation hearing, we see it otherwise when looking to the totality of the situation.
We see Respondent's actions as a definitive effort to disenfranchise the employee from the
benefits of the Act by prohibiting him, and other employees similarly situated, from
access to their own medical and exposure records if they choose to file a workmans'
compensation claim. The fact that an employee may get its medical records earlier then
Respondent believes he should pales thin in light of the practical effects on the ability
of the employee to recognize occupational safety and health hazards discernable only
through the medical and exposure records. We do not find that depriving the employee of
this substantial and important adjunct to effective occupational safety and health hazard
recognition, as obtainable under 29 C.F.R. � 1910.20, is consistent with any reasonable
interpretation of the Act or the Illinois Workmens' Compensation Law.[[7/]]

SUMMARY

Illinois Workman Compensation legislation seeks to provide employees with "prompt and
equitable compensation for their injuries" and with "efficient remedies."
Kelsay v. Motorola, 74 Ill. 2d 172, 180-81, 384 N.E. 2d 353, 356-57, 23 Ill. Dec. 559,
562-63 (1979). No part of the Illinois workers' compensation statute forbids employees
access to their own medical and exposure records, and Respondent has cited no such
statutory authority for that position (Resp. Br. pp. 12-14). We fail to dicern timely
employee access to records as having any damage, in any way, on the Workers' Compensation
Law dealing with compensating employees for all accidental injuries arising out of their
course of employment or upon the employer ability to defend such claims. Compliance with
an employee's records request cannot possibly be used to force compensation where it is
not warranted, and that is the simple truth of this case.

Liabilities of an employer to pay compensation for injuries are not increased by
employee's access to records under the Standard. There is no change of substantive rights
under the Standard. There are no new causes of action created. There are no additional
bases for recovery allowed. The number of weeks of compensation allowed by Illinois is not
increased. Because there is no substantive change in employees rights, Section 4(b)(4) is
not involved let alone contravened. No disclosure resulting from employee access under the
cited Standard can affect the employer's legal burden, which is to compensate for injuries
covered by the Illinois statute. In exchange for the Illinois Workman's Compensation Law's
denial of common law tort defenses, the amount of employer's liability is limited by
statute to a strict schedule. Access to records, therefore, cannot affect whether the
Worker's Compensation Law would regard an employer as liable for compensation or amounts
to be paid if liability is determined.

Respondent's claim that pre-hearing access by both parties to
the records, that it alone presently possesses, would somehow "upset the
balance" of workers' compensation seems disingenuous at best ( See Resp. Br. p.
17). The "balance" enacted by workers' compensation law is one in which employer
and employee each gave up tort claims and defenses in favor of the certainty of a
statutory schedule. Kelsay v. Motorola, 74 Ill. 2d 172, 384 N.E. 2d 353 (1979).
Employee access to medical records cannot affect this statutory balance, especially in
view of the fact that the Illinois Workmens' Compensation Law, as well as the Rules of
Practice before the Illinois Workmens' Compensation Commission, provide for significant
pre-hearing discovery, as above discussed.

Accordingly, we find no enlargement, or affect in any manner,
by the Standard on the common law or statutory rights, or duties of the workmens'
compensation laws and as such reject Respondent's arguments that Section 4(b)(4) has
application in this case.

III. WHETHER RESPONDENT VIOLATED

29 C.F.R. � 1910.20(e)(1)(i) and (e)(2)(i)

In the present case it is undisputed that the individual making
the request for medical and exposure records was an employee of Respondent. Moreover,
there is no dispute that Respondent failed to provide the employee, through his authorized
designated representative, access to the employee's medical records and exposure records,
although it acknowledged that such records did exist. The facts show that the guidelines
implemented by the Respondent to govern such access were compiled with by the employee or
his representative. Moreover, the employer's guideline did not contain a prohibition
against the release of such information to an employee who had a pending workmen's
compensation case against the Respondent (see generally Stipulation of Facts and
Admissibility of Documents and the Exhibits attached thereto).

In the absence of any statutory or regulatory infirmity, it is
evident that the request of the employee's designated representative fell within the
purview of the standard and was in conformance with Respondent's own guidelines therein.
Respondent's failure to provide access to the employee's designated representative of the
requested medical records and exposure records is found violative of 29 C.F.R. �
1910.20(e)(1)(i) and (e)(2)(i).

Since Respondent's failure to comply with the Standard involved
significant safety and health considerations, we find the violation to be serious in
nature, within the meaning of Section 17k of the Act. (See pp. 18-20 supra ). To
better understand the serious nature of the violation resulting from Respondent's actions,
it bears repeating what had been earlier stated about the importance of speedy and
uninterrupted compliance with the standard.

In the case of Uniroyal, Inc. 1983 CCH OSHD � 26,439, we
stated:

"Speedy and ready access to this information by employees,
or their designated representative, is paramount as a first step in avoiding serious
illness and injury caused by exposure in the workplace to the toxic substance. The action
of Respondent in delaying and hindering access of the employee to this vital information,
which is made readily accessible by reason of the records access regulation, represents a
significant hazard to the safety and health of employees." (slip opinion, p.14)

The Citation alleging a serious violation will accordingly be
affirmed.

IV. WHETHER THE SERIOUS VIOLATION OF

29 C.F.R � 1910 20 ET SEQ CONSTITUTED A

WILLFUL
VIOLATION OF THE ACT

The Complainant in this case alleged that the conduct of
Respondent in denying access to an employee of his medical and exposure records, as
provided by 29 C.F.R. � 1910.20 et seq. was willful in nature since it involved a
conscious and deliberate act to disregard the standard with full knowledge of what conduct
was required under the standard. The Respondent, on the other hand, maintains that even
though it denied access of the records such denial was neither indifferent to nor in
disregard of the regulation's requirements. Respondent points out that once it received
the employee's request, it sought and followed the advice of its attorney; its counsel's
advice was that the access regulation could not validly permit access to medical and
exposure records while a workers' compensation claim is pending.

Respondent argues that an action cannot be willful unless it is
taken "in disregard of the action's legality," citing P.A.F. Equipment
Company, Inc., supra; Intercounty Construction Co. v. OSHRC, 522 F. 2d 777, 779-80
(4th Cir. 1975), cert . denied, 423 U.S. 1072 (1976); Donovan v. Capital
City Excavating Co., 712 F. 2d 1008, 1010 (6th Cir. 1983). Respondent goes on to argue
that it did not act in disregard of the legality of its action. In fact, by seeking an
opinion from its counsel, it took the most positive-good faith-step it could have taken
with regard to determining the legality of its action and as such acted in good faith.
Respondent cites, as support for this position 52 Am. Jr. 2d at pp. 236-37, and Lacey
v. Porter, 37 � 635, 637 (Cal. 1894) in which the court stated:

"taking the advice of counsel, .... tends to show good
faith and honest motives and the absence of malice..."

Respondent further relies on the Commission's ruling in Mel
Jarvis Construction Company, Inc., 10 BNA OSHC 1052, 1053, 1981 CCH OSHD 25,713 for
the proposition that "a violation cannot be willful if the employer had a good faith
opinion that the condition in question conformed with the requirements of the
standard."

While Respondent argues that its actions were based on a legal
interpretation and guidance from its counsel, and as such if there was a violation of the
Act it most assuredly by reason of this was not willful in nature, we find the Complainant
drawing us to the specific facts of the case, maintaining that Respondent's knowing
refusal amounted to a willful violation.

Looking to applicable case law we find that the majority of
courts have found a willful violation as one involving voluntary action, done either with
an intentional disregard of, or plain indifference to, the requirements of the statute. Georgia
Electric Company v. Marshall, 595 F. 2d 309 (5th Cir. 1979); Western Waterproofing
Company v. Secretary of Labor, 576 F. 2d 139 (8th Cir. 1978); Intercounty
Construction Co. v. OSHRC, 519 F. 2d 1200 (3rd Cir. 1975). None of these cases require
the showing of a bad motive in order to prove willfulness. Thus, a violation is willful
when it is intentional, knowing or voluntary, C.N. Flagg & Company, Inc.,
1974-1975 CCH OSHD � 18,686 (R.C. 1974); or involves an element of indifference to the
law. F.X. Messina Construction Corp. v. OSHRC, 505 F. 2d 701 (1st Cir. 1974).

With all due respect to Respondent's counsel, we cannot allow
Respondent to hide behind asserted legal defenses as a shelter from conscious and
intentional defiance of the law. Respondent ran the risk that its strained interpretation
of the access regulation would prove to be wrong and must now bear the consequences of
that risk. As a casual, but clairvoyant, observer of life once said, "you pays your
money and you takes your choice." Respondent made its choice in denying its employees
significant and important health and safety benefits in choosing not to comply with the
standard. In doing so it singled out a particular segment of its employee population. . .
i.e., those who had filed a workman's compensation claim against it. We find the impact
and implication of this choice of action by Respondent all but too clear; we see these
actions of Respondent as deliberate in meaning and purpose. Those employees who were
engaged in workmen's compensation claims would be dispossessed from and denied the
benefits of 29 C.F.R. � 1910.20 et. seq. We reach the conclusion that this
was Respondent's purpose and this was Respondent's intention.

I will not re-review Respondent's flimsy rationale of the sins
of an employees'/claimant's early access to his medical or exposure records which would be
garnered through an employer's compliance with the cited standard; this being, according
to Respondent, as a just and decent reason for finding other then a willful violation of
the Act or for finding no violation at all. I merely look to the totally of situation in
which an employer refuses all medical and exposure records to an employee who files
a workman's compensation claim, regardless of the nature of the claim and the extent of
the health and exposure records.

In the instant case we have an employee who's workman's
compensation claim involved a back injury. This employee, a long-term employee of
Respondent, held many different jobs in many different areas of Respondent's facility.
While he complained of exposure to carbon monoxide, who can say what other unsafe or
unhealthful conditions he may have been exposed to during the course of his employment.
His job history reveals that he has been exposed to all areas of the facility and to such
dangerous substances as welding smoke and fumes, dust from grinders and noise from air
hammers (apparently during the period he was Fitter Locomotive), bulk oil, acids,
carboids, coolants, grease, gasoline and other inflammable materials (as a stockkeeper),
paint, dust and dirt (as Service work - Class "B"), exhaust fumes (as
Trucking-Automatic), noise from engine test and air hammers (as Crib Attendant) (Stip. �
8 and Ex. G). Without the requested records this employee is severely handicapped in his
attempt to determine what occupational dangers to his health have been or are now present.

In this case we are not dealing with an employer who held back
a portion of a medical record dealing with the subject matter of a workmen's compensation
claim, and then claiming the good faith belief in the application of Section 4(b)(4).
Perhaps under these circumstances we would find that the violation was other then willful.
But this is not the case herein. The cold hard facts are that Respondent refused all
medical and exposure records to an employee who had engaged it in a workman's
compensation proceeding. It refused access to exposure records when such were obviously
not a part of the workman's compensation proceeding; it refused access to medical records
having nothing to do with the nature of the injury involved in the compensation claim. We
find the underlying message of Respondent's to its employee's discernable and decisive ---
don't file any workman's compensation claims if you want access to your medical and
exposure records--don't seek the relief provided under the Standard if you file a
workman's compensation claim.

Notwithstanding Respondent's argument made herein, we find that
Respondent fully and deliberately chose to disregard the requirements of the Act and
thwart compliance with 29 C.F.R. � 1910.20 et. seq. [[ 8 /]] We find
that Respondent's actions were purposeful in nature designed to achieve a predictable
result. Accordingly we find in Respondent's actions an intentional and knowing conduct
designed to avoid compliance with the Standard and as such is determined to be willful in
nature. The Citation will thus be affirmed as a Willful-Serious Citation.

PENALTY

In this case we are involved with a standard that for employees
represents the most effective and expedient means for learning whether or not they are or
have been exposed to unsafe or unhealthful work conditions, and whether these work
conditions are or have been effecting their health.

The facts of this case rather plainly speak for themselves showing that Respondent
purposefully denied to certain of its employees the benefits of the Standard. Respondent,
contrary to the agreements reached with the employee's Collective Bargaining
Representative on access to medical records, began a program of singling out those
employees who filed out workmen's compensation claims to deny them benefits of this most
important standard.

We find it more than coincidental that Respondent's refusal to allow access to medical or
exposure records involved only those employees who filed workman's compensation claims. We
find it more then coincidental that the refusals for access followed the ostensible
obtaining of legal advise claiming involvement of Section 4(b)(4) of the Act, when in
fact, none obviously existed. It is more then coincidental that all medical and exposure
records were denied, whether they related to the subject matter of the workman's
compensation claim or not.

We have found Respondent's actions willful in nature since they
were, deliberate, intentional and in complete disregard of the mandated purpose of the
cited standards. But we find more than that in this case.

Respondent's action went beyond intent; they were purposeful in
nature aimed at the identifiable segment of its workforce, and solely designed to burden
or discourage employees who might seek redress for injuries under the States Workmen's
compensation law by denying them benefits obtainable under the Standard. Respondent's
conduct placed employees in the untenable position of having to chose between the benefits
of the Act, as provided under the cited Standard, or continuation of their workman's
compensation claim. These egregious actions of Respondent not only tore at the basic
fabric of the Act, but by their very nature sought to suborn the Acts remedial purposes.
After considering those factors setforth in section 17(j) of the Act, the above mentioned
discussion, and considering the record as a whole, we find it appropriate to assess a
civil penalty of $10,000.00.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of
Law, as set out in my Decision and Order , and for good cause shown, it is ORDERED:

1. That item 1A and 1B of the Willful-Serious Citation is
   AFFIRMED.

2. A penalty of $10,000 is assessed.

Edward A. Bobrick

Judge, OSHRC

Chicago, Illinois

DATED: March 19, 1985

FOOTNOTES:

[[1/]]Chairman Foulke took no part in the consideration or
decision of this case.

[[2/]]The section provides in full:

Nothing in this Act shall be construed to supersede or in any
manner affect any workmen's compensation law or to enlarge or diminish or affect in any
other manner the common law or statutory rights, duties, or liabilities of employers and
employees under any law with respect to injuries, diseases, or death of employees arising
out of, or in the course of, employment.

[[3/]]At the time of the alleged violation, the cited 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.

The records access rule was amended in 1988. Final Rule: Access to Employee Exposure
and Medical Records, 53 Fed. Reg. 38,140 (Sept. 29, 1988). However, those amendments
have no effect on these cases.

[[4/]]At the time of the alleged violation, that provision stated:

(e) Access to records--

(2) Employee and designated representative access - (i) Employee
exposure records. Each employer shall, upon request, assure the access of each
employee and designated representative to employee exposure records relevant to the
employee....

[[5/]]Also, GM stipulated that "for purposes of this case
only" it would not contest the Secretary's allegation that Havell was exposed to
toxic substances or harmful physical agents within the meaning of 29 C.F.R. � 1910.20.
(Access to records under the rule must be provided only regarding employees exposed to
those hazards.)

[[6/]] The court stated that the legislative history of the Act
contains essentially nothing about � 4(b)(4), and that the provision is "vague and
ambiguous on its face." 647 F.2d at 1234 and n. 70. The court noted that any OSHA
health standard might have some practical effect on WC claims -- by reducing the number of
accidents and claims, for example.

It held that Congress did not intend to prohibit such practical
effects. Instead, the court saw two plausible meanings for � 4(b)(4) -- it bars (1) a
private cause of action by employees against employers under OSHA standards, and (2)
claims in non-OSHA cases (including WC cases) brought by employees that the Act or
regulations thereunder preempt any element of the applicable law.

[[7/]] The IIC has the same jurisdiction, powers and duties under both Acts. Id.,
� 172.48.

[[8/]] Statutes should be construed so as to avoid a conflict between them, if possible. See,
e.g., H. P. Welch Co. v. New Hampshire, 306 U.S. 79, 85, 59 S.Ct. 438, 441 (1939);
Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994 (1978).

[[9/]] GM presented testimony from Ralph W. Miller, Jr., a
member of the IIC, to that effect. However, Miller acknowledged the validity and
enforceability of the disclosure provisions of the Illinois Acts discussed below.

[[10/]] That section provides:

. . . Every hospital, physician, surgeon or other person
rendering treatment or services in accordance with the provisions of this Section shall
upon written request furnish full and complete reports thereof to, and permit their
records to be copied by, the employer, the employee or his dependents, as the case may be,
or any other party to any proceeding for compensation before the Commission, or their
attorneys . . . .

[[11/]] The relevant portion of that section provides:

The Commission upon application of either party may issue
dedimus potestatem directed to a commissioner, notary public, justice of the peace or any
other officer authorized by law to administer oaths, to take the depositions of such
witness or witnesses as may be necessary in the judgment of such applicant . . .

[[12/]] The relevant portion of that section provides:

The Commission, or any member thereof, or any Arbitrator
designated by the Commission, shall on written request of either party to the dispute,
issue subpoenas for the attendance of such witnesses and production of such books, papers,
records and documents as shall be designated in the applications, . . . .

See also Id., � � 138.12, 172.47(a) (physicians'
reports must be made available to other party by time of trial); � 138.19(c) (IIC may
require medical examination of employee, with copy of report to both parties). The
Illinois Acts have been revised in some respects. E.g., Ill. P. A. 86-998, � 1,
eff. Dec. 18, 1989. None of those changes affect these cases, however.

[[13/]] OSHA 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., col. 3 (emphasis added). The preamble to the 1988
revision of the standard reaffirmed and reprinted the 1981 interpretation, in discussing
the term "employee medical record." Final Rule: Access to Employee Exposure
and Medical Records, 53 Fed. Reg. 38,140, 38,150-51 (Sept. 29, 1988).

[[14/]] The burden of proving the invalidity of a cited
standard is on the employer. Commission Rule 36(b)(1), 29 C.F.R. � 2200.36(b)(1). Cf.
Puget Sound Tug & Barge, 9 BNA OSHC 1764, 1774, 1981 CCH OSHD � 25,373, p.
31,594 (No. 76-4905, 1981) (burden of proof of exemption from OSHA jurisdiction under �
4(b)(1) of the Act is on employer).

[[15/]]The employer in Crowell v. Benson protected the
fact that the law permitted ex parte inquiries by the judge regarding the merits of the
case. Id. Therefore, the employer argued unsuccessfully, one party could prevail based on
"unknown sources of information," depriving the other of a fair hearing. Id. The
practice challenged in Crowell v. Benson is also authorized by � 138.19(b) of the
Illinois Acts.

[[16/]]The Illinois Acts contemplate public hearings, with a
full opportunity for each party to present evidence and meet opposing evidence, including
surprise evidence. Decisions are to be based on written "findings of fact and
conclusions of law, separately stated." Id.

Also, there is meaningful review of the arbitrator's decision by IIC. � 138.19(e), (f).
No legal duty to pay compensation arises until the relevant proceedings before the IIC are
completed. � 138.19(f), (g). Thus, a party claiming that due process was denied before
the arbitrator may obtain meaningful review of the issue before any rights are irreparably
affected. See, e.g., I n Matter of Claim for Compensation under LHWCA,
889 F.2d 626, 630-32 95th Cir. 1989) (opportunity for meaningful review of initial
decision within WC tribunal preserves due process), cert. denied sub nom,
Louisiana Insurance Guaranty Ass'n v. Abbott, U.S., 110 S. Ct. 1813 (1990). There are
sufficient protections under Illinois Acts to avoid unfairness to an employer faced with
surprise evidence. (We note that no actual surprise evidence has been alleged here.)

[[17/]] The Secretary notes a statement in a recent court
decision that a willful OSHA violation may be found "even if [the employer] has a
good faith belief that its own policy is wiser." RSR Corp. v. Brock, 764 F.2d
355, 363 (5th Cir. 1985). However, the court found willfulness in that case because RSR
knew that its policy did not conform to the law. Here, the evidence shows that GM had a
good faith basis for claiming that its conduct was consistent with the law.

[[18/]] The union party has not sought to overturn the
stipulations.

[[19/]] The records access rule was not intended to cover
trips, falls, cuts, and similar non-chronic traumatic injuries. Preamble to Final Rule
on Access to Employee Exposure and Medical Record s, 45 Fed. Reg. 35,212, 35,258,
35,267 (1980) (definition of "toxic substances and harmful physical agents" [�
1910.20(c)(11)] "excludes traumatic safety hazards such as trips, falls, cuts, etc..
but includes repetitive motion (ergonomic) stresses due to their subtle and chronic
nature").

[[20/]]We also find it difficult to ascribe willful disregard
to GM in light of the conclusion by the commission majority in Johnson & Johnson
Products, Inc., 11 BNA OSHC 2097, 1984-85 CCH OSHD � 26,988 (No. 81-1339, 1984). As
discussed in the next section, they concluded that a records access request related to WC
proceedings is essentially unenforceable because failure to comply with it is de
minimis. Although that conclusion is erroneous, it lends some credence to GM's initial
reaction to Havell's request.

[[21/]]The union argues that GM's noncompliance was shown to be
willful because GM's guidelines for providing employees access to medical and exposure
records did not make an exception for records related to WC claims. GM's guidelines had
been developed jointly with the union. We reject the union's argument because there is no
showing that the topic of WC related records was raised by the union or considered by GM
during development of the guidelines.

[[22/]] One of the employers had denied access specifically
because it considered the use of the records access standard for purposes of discovery in
WC cases to be inappropriate. The Commission majority stated:

Even if we were to find that there was a violation, we would
find that, under the circumstances of this case, it was de minimis. A de minimis
violation is one in which there is technical noncompliance with a standard but the
departure from the standard bears so little relationship to employee safety or health that
it is inappropriate to assess a penalty or require abatement of the violation. . . The
records here were sought for discovery purposes for a proceeding unrelated to the safety
and health purposes of the Act . . . .

11 BNA OSHC at 2100 n.8, 1984-85 CCH OSHD at p. 34,709 n.8
(citations omitted).

[[1/]] Jurisdiction of the parties and the subject matter
herein is confirmed upon the Occupational Safety and Health Review Commission by Section
10(c) of the Act.

[[2/]] �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.

(ii) Whenever an employee or designated representative requests

a copy of a record, the employer shall, within the period of time previously specified,
assure that either:

(A) A copy of the record is provided without cost to the
employee or representative,

(B) The necessary mechanical copying facilities (e.g.,
photocopying) are made available without cost to the employee or representative for
copying the record, or

(C) The record is loaned to the employee or representative for
a reasonable time to enable a copy to be made.

(2) EmpIoyee and designated representative access -(1)
Employee exposure records. Each employer shall, upon request, assure the access of each
employee and designated representative to employee exposure records relevant to the
employee. For the purpose of this section, exposure records relevant to the employee
consist of:

(A) Records of the employee's past or present exposure to toxic substances or harmful
physical agents,

(B) Exposure records of other employees with past or present
job duties or working conditions related to or similar to those of the employee,

(C) Records containing exposure information concerning the
employee's workplace or working conditions, and

(D) Exposure records pertaining to workplaces or working
conditions to which the employee is being assigned or transferred.

[[3/]] Both a trial transcript and Stipulation of Facts make up
the record in this case. References to the Stipulation of Facts and Admissibility of
Documents executed by the parties shall be denoted as "Stip. Par.. Transcript
references are denoted as "Tr.." Trial exhibits are denoted as "Comp. Ex.
No. or "Resp. Ex. No.."

[[4/]] A claim concerning 29 C.F.R. � 1910.20 et seq.,
analogous to Respondent's claim herein was placed before the Court. The Court dealt with
it in a very practical manner stating:

"LCA ... asserted that the agency's principal motivation for enacting the rule was to
gain a benefit for employees and unions which they have been unsuccessful in securing
through the NLRB. Specifically, the benefit of records access. The court must make little
of such an allegation for two reasons. First, the records access rule is a duly authorized
regulation, reasonably related to its underlying statute. While the rule undoubtedly
enhances the bargaining status of unions, it is plain on the record that this result was
simply incidental to fulfilling the statutory goal of promoting healthful working
conditions." 550 F. Supp. at 1145

[[5/]] We assume these records exist since Respondent never replied to the request of the
employee indicating that no exposure records or health records existed. Looking to the
manner in which Respondent proceeded if it is later found that no exposure or other health
records exist, we would be kidding ourselves to believe that Respondent would have turned
over such records in any event if they had in fact existed at the time of request (see pp.
26-29, infra ).

[[6/]] Access to records enhance the ability of employees to
decide whether or not to request a Health Hazard Evaluation by NIOSH under Sec. 20(a)(6),
29 U.S.C. � 669(a)(6). Sixty to seventy percent of all evaluation requests come from
workers or their representatives. 45 Fed. Reg. 35246. Access to records enables employees
to provide NIOSH with information that it requires to set priorities on its limited
resources to conduct Health Hazard Evaluations. Respondent has offered no reason why this
work of NIOSH should suffer because of the existence of a worker's compensation claim.
Additionally, Respondent's refusal to abide by 29 C.F.R. � 1910.20 undermines the very
purpose of the Act in preventing employee ignorance about workplace hazards; a result
Congress specifically sought to eradicate. The House Committee on Education and Labor
stated:

Basically the worker needs to have adequate advance knowledge
of hazards in order to protect himself from damaging exposures...Since inadvertent
exposure to unknown products or processes often causes severe and immediate reactions, the
exposed worker must know what type of exposure he has suffered in order to use proper
treatment. The worker especially needs this information in cases of toxic substances which
have delayed or latent ill effects. Legislative History at 150.

Additionally, Respondent's discussion of the recently enacted
Illinois access to records statute is interesting but factually incorrect, and the
inference drawn from it, regardless of the facts, erroneous. We see no indication that the
House, Senate, or Governor ever considered this legislation in terms of its interaction
with the state's workmen's compensation laws. Furthermore, the House passed version of the
bill provided for access to medical records, a provision not included in the Senate passed
version. The House ultimately accepted the Senate's version of the bill. Thus the
legislation which reached the Governor's desk did not provide for access to medical
records. However, in printing the legislation for signature, a poor proofreading job had
been performed and thus, although access to medical records had been deleted, all such
references had not been removed from the legislation itself. The Governor's amendatory
veto of those references therefore, was merely a completion of the proofreading of the
legislation. (See Illinois 1983 House debate on House Bill No. 2035, May 19, 26 and
October 19; Illinois Senate 1983 debate June 16, 23, and November 2 -- Ex. A and B to
Complainants' Reply Brief filed July 19, 1984).

[[7/]] We need not review Respondent's reading of the
legislative

history of the Illinois Compensation Laws, other then to say that we find Respondent's
argument concerning the so-called "balance" struck by Illinois law a product of
Respondent's creative thinking. As in most administrative law proceedings, discovery has
been severely limited or proscribed in the name of expeditious handling of cases. Such an
intent is evident in Occupational Safety and Health Review Commission proceedings and was
clearly stated by the Illinois legislature in the body of the statute itself. Indeed,
Illinois courts have recognized that the purpose of the Workmen's Compensation Act is to
provide prompt, sure and definite compensation, together with quick and efficient remedy,
to employees for every injury, accident and/or death suffered in the course of employment
without having to show negligence on the part of the employer but subject to the
limitations specified by the Act. Moushon v. National Garages, Inc., 9 Ill. 2d 407
(1956); O'Brien v. Ratenbush, 10 Ill. 2d 167 (1956); Pathfinder v. Industrial
Commission , 62 Ill. 2d 556 (1976); Laffoon v. Bell & Zoller Coal Co., 65
Ill. 2d 437 (1976); Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978).

[[8/]] Respondent has directed our attention to the case of
Trans World Airlines, Inc. v. Thurston, __U.S.__ 53 2W 4024 (1985) (hereinafter
"TWA") for the proposition that if a company seeks advise of counsel, and acts
upon same in violation of the law, it cannot be found guilty of a willful violation. After
a careful reading of this case, we find the holding of the court inapposite to the facts
of the instant case. In TWA the court found that "TWA officials acted reasonably and
in good faith in attempting to determine whether their plan would violate the ADEA,"
(Age Discrimination in Employment Act 29 U.S.C. � 621 et seq .) Quite clearly the
court's ruling does not provide unconditional absolution from one's legal transgressions
if the transgression could be traced back to reliance upon advise of counsel. In TWA the
employer sought conformance with the ADEA in a very technical work setting having complex
legal and factual elements to it. The employer's acts, which ultimately resulted in a
violation of the ADEA, were rationally designed from the start, aimed at gaining compliance
with ADEA, while attempting to comply with the collective-bargaining agreement. In the
instant case we find an employer seeking to avoid compliance with the Act, not one
attempting compliance as we do in TWA. We fail to find in Respondent's actions that degree
of reasonable conduct and good faith used as a touchstone for the Court in TWA to find
other than willful conduct (pp. 26-28, supra ). That element is absent in this case
when viewing the realities of the legal proposition relied upon. Accordingly, we find no
application of the holding in TWA to the legal or factual issues of this case.