testimony, and to cross examine witnesses of the Secretary. Metal Bank thus had a meaningful opportunity to be heard.
The Act provides for private employee interviews in general administrative plan inspections. There is no reason why inspections based on allegations of specific violations should be more limited in this respect, so long as the interviews meet the North American Car requirement of bearing a reasonable relationship to the violations alleged. This warrant so limits all actions by the OSHA inspectors, including the private interviews.
The legislative history of the Act supports the Secretary's position. Congress emphasized the importance of involving employees in employer health and safety efforts. The Senate Committee Report to the bill specifies that "an employer should be entitled to accompany an inspector on his physical inspection, although the inspector should have an opportunity to question employees in private so that they will not be hesitant to point out hazardous conditions which they might otherwise be reluctant to discuss." S.Rep.No.91-1282, 91st Cong., 2d Sess. (1970), reprinted in (1970) U.S.Code Cong. & Ad.News 5177, 5187. The House of Representatives receded in favor of the Senate's amendment providing for private interviews. Conference Rep.No.91-1765, 91st Cong., 2d Sess. (1970), reprinted in (1970) U.S.Code Cong. & Ad.News 5177, 5232-33.
Private employee interviews do not conflict with the employer's right under section 657(e) to accompany the OSHA inspectors on all parts of the physical inspection. They simply cannot participate in the private employee interviews accompanying that physical inspection. The warrant limits the OSHA representatives to conducting interviews only at a reasonable time, in a reasonable manner, and to a reasonable extent. Its literal terms do not permit day long interviews with each and every employee working in the areas covered by the warrant.
Metal Bank argues that it did not impede the inspection of records because it never refused to produce the records requested by OSHA. It also argues that inspection of records is not authorized as part of a physical inspection under the Act; and that it was not required by the lead standard to keep the records sought by Secretary.
Section 657(b) of the Act provides that "(in) making his inspection ... the Secretary may require ... the production of evidence under oath." Section 657(c)(1) requires the employer to keep and make available to the Secretary such records as the Secretary may prescribe by regulation. Section 657(c)(3) specifically requires records regarding the monitoring of potentially toxic substances such as lead. Special inspections based on allegations of specific existing violations are to take place in accordance with the provisions of section 657 as a whole including parts (b) and (c). North American Car, supra, 626 F.2d at 323.
The lead standard, 29 C.F.R. § 1910.1025(n), requires an employer to maintain and make available to the secretary records of monitoring, id. at (d); medical surveillance, id. at (j); and medical removals, id. at (k). On the second day of the inspection Johnson gave Levin a written list of specific records sought under the warrant. On the third day when Johnson asked for the records, Levin advised him to speak with Metal Bank's attorney. The records were never supplied. I am unimpressed with Metal Bank's defense that it never refused to produce the records.
D. Shower, Lunch and Changing Facilities
Metal Bank argues the Secretary has not shown that Metal Bank was required to have shower, lunch, and changing facilities. The lead standard requires such facilities to be provided for employees whose exposure to lead exceeds the permissible exposure limit. Id. at (i). Since there was no lead processing going on for the three days of the inspection, there were no employees exposed beyond the permissible exposure limit during those three days. Metal Bank also contends that these facilities were not covered by the warrant which specifically refers to areas of exposure to lead. By definition these facilities are intended to be areas of nonexposure. Finally, Metal Bank notes that the enforcement of this portion of the lead standard has been stayed by the United States Supreme Court "to the extent that it requires the construction of new facilities or substantial renovation of existing facilities." Lead Industries Association, Inc. v. Marshall, 449 U.S. 1029, 101 S. Ct. 603, 66 L. Ed. 2d 492 (1980), cert. denied, 453 U.S.913, 101 S. Ct. 3148, 69 L. Ed. 2d 997 (1981).
It is irrelevant that no lead processing took place during the three days of the inspection. The OSHA inspectors had authority to inspect the areas of lead production to determine their compliance with the Act. Employers cannot evade OSHA's legitimate inspections of areas of exposure to toxic substances by temporary shutdowns during the inspections. If Metal Bank maintained facilities for employees exposed to lead, OSHA was entitled to inspect those facilities, whether or not they were in use during the precise time of the inspection.
The Supreme Court stay of enforcement of the lead standard applies only where it requires new construction or substantial renovation of existing facilities. It does not proscribe inspection of existing facilities. The present question is not whether Metal Bank's facilities comply with the currently enforceable lead standard. It is simply whether the warrant covers such facilities if they exist. The warrant does cover such facilities. Metal Bank was notified by the warrant that the inspection would cover areas relevant to lead exposure. These facilities clearly relate to lead exposure of Metal Bank employees. See North American Car, supra, 626 F.2d 323.
Contrary to the recent statements of OSHA's new Administrator, Thorne Auchter, OSHA is not intended to be neutral on occupational safety and health issues.
Rather, the purpose of the Act is "to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b) (Congressional Declaration of Purpose). It was intended to lessen the ever-increasing human misery and staggering economic loss caused by work-related injuries and illness. S.Rep.No.91-1282, reprinted in (1970) U.S.Code Cong. & Ad.News 5177.
Metal Bank's actions in impeding OSHA's inspection have obstructed enforcement of the Act thereby thwarting its purpose. I will hold Metal Bank in civil contempt of Magistrate Naythons's Order.