Guam § 1108 - Power to Enter, Inspect Places, Prohibition of

§ 1108. Power to Enter, Inspect Places, Prohibition of

Advance Notice, Record Keeping and Other Requirements.

(a) In order to carry out the purposes of this Title, the

Director, or his authorized representative upon presenting

appropriate credentials to the owner, operator, or agent in charge

is authorized:

(1) To enter without delay and at reasonable times any

factory, plant, establishment, construction site, or other area,

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work place or environment where work is performed by an

employee of an employer; and where such entry or inspection

is refused, the Director shall have the authority through

appropriate legal process in the Superior Court of Guam, to

compel such entry and inspection; and

(2) To inspect and investigate during regular working

hours and at other reasonable times, and within reasonable

limits and in a reasonable manner, any such place of

employment and all pertinent conditions, structures,

machines, apparatus, devices, equipment, and materials

therein, and to question privately any such employer, owner,

operator, agent or employee.

(b) In making his inspections and investigations under this

Title the Director may require the attendance and testimony of

witnesses and the production of evidence under oath. In a case of

contumacy, failure or refusal of any person to obey such an order,

the Superior Court of Guam, upon the application by the Director

shall have jurisdiction to issue such person an order requiring such

person to appear to produce evidence if, as, and when so ordered,

and to give testimony relating to the matter under investigation or

in question. Any failure to obey such order of the Court may be

punished by said Court as a contempt thereof.

(c) Records.

(1) Each employer shall make, keep and preserve, and

make available to the Department, such records regarding his

activities relating to this Title as the Department may

prescribe by regulation as necessary or appropriate for the

enforcement of this Title or for developing information

regarding the causes and prevention of occupational

accidents, diseases, and illnesses. Such regulations may

include provisions requiring employers to conduct periodic

inspections. The Department shall also issue regulations

requiring that employers, through posting of notices or other

appropriate means, keep their employees informed of their

protection and obligations under this Title, including the

provisions of all applicable standards.

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(2) The Department shall prescribe regulations

requiring employers to maintain accurate records of, and to

make periodic reports on, work-related deaths, injuries, and

illnesses other than minor injuries requiring only first-aid

treatment and which do not involve medical treatment, loss

of consciousness, restriction of work or motion, or transfer to

another job.

(3) The Department shall issue regulations requiring

employers to maintain accurate records of employee

exposures to potentially toxic materials or harmful physical

agents which are required to be monitored or measured under

this Title. Such regulations shall provide employees or their

representatives with an opportunity to observe such

monitoring or measuring, and to have access to the records

thereof. Such regulations shall also make appropriate

provisions 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. Each employer

shall promptly notify any employee who has been or is being

exposed to toxic materials or harmful physical agents in

concentrations or at levels which exceed those prescribed by

an applicable occupational safety and health standard

promulgated under this Title and shall inform any employee

who is being thus exposed of the corrective action being

taken.

(d) Any information obtained by the Director shall be

obtained with a minimum burden upon employers, especially

those operating small businesses. Unnecessary duplication of

efforts in obtaining information shall be reduced to the maximum

extent feasible.

(e) Subject to regulations issued by the Director, a

representative of the employer and a representative authorized by

his employees shall be given an opportunity to accompany the

Director or his authorized representative during the physical

inspection of any work place under this section for the purpose of

aiding such inspection. Where there is no authorized employee

representative, the Director or his authorized representative shall

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consult with a reasonable number of employees concerning

matters of health and safety in the work place.

(f) [No text.]

(1) Any employee or representative of employees who

believes that a violation of a safety or health standard exists

that threatens physical harm, or that an imminent danger

exists, may request an inspection by giving notice to the

Director or his authorized representative of such violation or

danger. Any such notice shall be reduced to writing, shall set

forth with reasonable particularity the grounds for the notice,

and shall be signed by the employee or representative of

employee, and a copy shall be provided the employer or his

agent no later than at the time of inspection, except that, upon

the request of the person giving such notice, his name and the

names of individual employees referred to therein shall not

appear in such copy or in any record published, released or

made available pursuant to Subsection (h) of this section. if

upon receipt of such notification the Director determines

there are reasonable grounds to believe such violation or

danger exists, he shall make a special inspection in

accordance with the provisions of this section as soon as

practicable, to determine if such violation or danger exists. If

the Director determines there are no reasonable grounds to

believe that a violation or danger exists, he shall notify the

employee or representative of employees in writing or such

determination.

(2) Prior to or during any inspection of a work place, any

employee or representative of employees employed in such a

work place may notify the Director or any representative of

the Director responsible for conducting the inspection, in

writing, of any violation, of this Title which he has reason to

believe exists in such work place. The Director shall, by

regulation, establish procedures for informal review of any

refusal by a representative of the Director to issue a citation

with respect to any such alleged violation and shall furnish

the employee or representative of employees requesting that

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such review a written statement of the reasons for the

Director’s final disposition of the case.

(g) No person shall give advance notice of any inspection to

be conducted under this Title, without authority from the Director

or his authorized representative, except as provided by 29 C.F.R.

Part 1903.6. Any person who gives such advance notice shall be

guilty of a petty misdemeanor.

(h) The Director is authorized to compile, analyze, and

publish either in summary or detailed form, all reports or

information obtained under this section.

(i) [No text.]

(1) If upon inspection or investigation, the Director or

his authorized representative believes that an employer has

violated a requirement of § 1204 of this Title, or any

standard, rule or order promulgated pursuant to § 1206 of this

Title, or of any regulations prescribed pursuant to this Title,

he shall with reasonable promptness issue a citation to the

employer. Each citation shall be in writing and shall describe

with particularity the nature of the violation, including a

reference to the provision of the Title, standard, rule,

regulation or order alleged to have been violated. In addition,

the citation shall fix a reasonable time for the abatement of

the violation. The Director may prescribe procedures for the

issuance of a notice in lieu of a citation with respect to de

minimis violations which have no direct or immediate

relationship to safety or health.

(2) Each citation issued under this section, or a copy or

copies thereof, shall be prominently posted, as prescribed in

regulations issued by the Department, at or near such place a

violation referred to in the citation occurred.

(3) No citation may be issued under this section after the

expiration of six (6) months following the occurrence of any

violation.

(j) [No text.]

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(1) If, after an inspection or investigation, the Director

issues a citation under this section he shall, within a

reasonable time after the termination of such inspection or

investigation, notify the employer by certified mail of the

penalty, if any, proposed to be assessed under § 1116 and that

the employer has Twenty (20) calendar days within which to

notify the Director that he wishes to contest the citation or

proposed assessment of penalty by serving upon the Director

a copy of the petition filed with the Superior Court for a

review of the citation or proposed assessment of penalty. If,

within twenty (20) calendar days from the receipt of the

notice issued by the Director the employer fails to notify the

Director that he intends to contest the citation or proposed

assessment of penalty and no notice is filed by an employee

or representative of employees under Subsection (3) within

such time, the citation and the assessments, as proposed, shall

be deemed a final order of the Superior Court not subject to

review by any court or agency.

(2) If the Director has reason to believe that an employer

has failed to correct a violation for which a citation has been

issued within the period permitted for its correction (which

period shall not begin to run until the entry of a final order by

the Superior Court in the case of any review proceedings

under this section initiated by the employer in good faith and

not solely for delay or avoidance of penalties), the Director

shall notify the employer by certified mail of such failure and

of the penalty proposed to be assessed under § 1116 by

reason of such failure, and that the employer has twenty (20)

calendar days within which to notify the Director that he

wishes to contest the Director’s notification or the proposed

assessment of penalty by serving upon the Director a copy of

the petition filed with the Superior Court for a review of the

notification or the proposed assessment of penalty. If, within

twenty (20) calendar days from the receipt of notification

issued by the Director, the employer fails to notify the

Director that he intends to contest the notification or

proposed assessment of penalty, the notification and

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assessment, as proposed, shall be deemed a final order of the

Superior Court not subject to review by any court or agency.

(3) [No text.]

(A) An employee or representative of employees

shall notify the Director within twenty (20) calendar

days of the issuance of a citation under Subsection (1),

that he intends to contest the period of time fixed in the

citation for the abatement of the violation as

unreasonable, by mailing the Director a copy of the

petition filed with the Superior Court for a review of the

abatement period fixed in the citation.

(B) A copy of the filed petition shall be

prominently posted at or near each place a violation

referred to in the citation occurred.

(4) [No text.]

(A) Upon such filing, the Superior Court shall have

jurisdiction of the matter and shall afford an opportunity

for a hearing (in accordance with the Superior Court’s

procedures). the Superior Court shall after a hearing,

issue its order, based on findings of fact affirming,

modifying, or vacating the Director’s citation, or

proposed penalty, or directing other appropriate relief,

and such order shall become final thirty (30) days after

its issuance.

(B) Upon a showing by an employer of a good faith

effort to comply with the abatement requirements of

citation, and that abatement has not been completed

because of factors beyond his reasonable control, the

Superior Court after an opportunity for hearing as

provided in this subsection, shall issue an order

affirming or modifying the abatement requirements in

such citation.

(C) The rules of procedure prescribed by the

Superior Court shall provide affected employees or

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representatives of affected employees an opportunity to

participate as parties to hearings under this subsection.

(k) [No text.]

(1) Any person adversely affected or aggrieved by any

order of the Superior Court under this section may obtain a

review of such order in the District Court of Guam by filing

in such court within sixty (60) days following the issuance of

such order a written petition praying that the order be

modified or set aside.

(A) A copy of such petition shall be forthwith

transmitted by the Clerk of the District Court to the

Superior Court, to the Director, and to the other parties,

and thereupon the Superior Court shall file in the

District Court the record in the proceeding as provided

by the District Court’s rules of procedures.

(B) Upon such filing, the Court shall have

jurisdiction of the proceeding and of the question

determined therein, and shall have power to grant such

temporary relief or restraining order as it deems just and

proper, and to make and enter upon the pleading,

testimony, and proceedings set forth in such record a

decree affirming, modifying, or setting aside in whole

or in part, the order of the Superior Court and enforcing

the same to the extent that such order is affirmed or

modified.

(C) The commencement of proceedings under this

subsection shall not, unless ordered by the Court,

operate as a stay of the order of the Superior Court.

(D) No objection that has not been urged before the

Superior Court shall be considered by the Court, unless

the failure or neglect to urge such objection shall be

excused because of extraordinary circumstances.

(E) The findings of the Superior Court with respect

to questions of fact, if supported by substantial evidence

on the record considered as a whole, shall be conclusive.

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(F) If any party shall apply to the Court for leave to

adduce additional evidence and shall show to the

satisfaction of the Court that such additional evidence is

material that there were reasonable grounds for the

failure to adduce such evidence in the hearing before the

District Court, the Court may order such additional

evidence to be taken before the Superior Court and to be

made a part of the record.

(G) The Superior Court may modify its findings as

to the facts, or make new findings, by reason of

additional evidence so taken and filed, and it shall file

such modified or new findings, which findings with

respect to questions of fact, if supported by substantial

evidence on the record considered as a whole, shall be

conclusive, and its recommendations, if any, for the

modification or setting aside of its original order.

(H) Upon the filing of the record with it, the

jurisdiction of the Court shall be exclusive and its

judgment and decree shall be final, except that the same

shall be subject to review by the Supreme Court of the

United States, as provided in § 1254 of Title 28 U.S.C.

(2) The Director may also obtain review or enforcement

of any final order of the Superior Court by filing a petition

for such relief in the District Court of Guam, and the

provisions of Subparagraph (1) shall govern such

proceedings to the extent applicable.

(A) If no petition for review, as provided in

Subparagraph (1) is filed within sixty (60) days after

service of the Superior Court’s order, the Superior

Court’s findings of fact and order shall be conclusive in

connection with any petition for enforcement which is

filed by the Director after the expiration of such sixty

(60) days period.

(B) If any such case, as well as in the case of a non-

contested citation or notification by the Director which

has become a final order of the Superior Court under

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Subparagraph (1) or (2) of Subsection (j), the Clerk of

the Court, unless otherwise ordered by the Court, shall

forthwith enter a decree enforcing the order and shall

transmit a copy of such decree to the Director and the

employer named in the petition.

(C) In any contempt proceeding brought to enforce

a decree of the District Court entered pursuant to this

subparagraph or Subparagraph (1), the District Court

may assess the penalties provided in § 1116 in addition

to invoking any other available remedies.

(l) All information reported or otherwise obtained by the

Director or his authorized representative in connection with any

inspection or proceeding under this Title which contains or might

reveal a trade secret (referred to in § 1905 of Title 18 of the United

States Code) shall be considered confidential except that such

information may be disclosed to other officers or employees

concerned with carrying out this Title or when relevant in any

proceeding under this Title. In any such proceeding, the Director,

the Superior Court, or the District Court, shall issue such orders

as may be appropriate to protect the confidentiality of trade

secrets.