ROBBERSON STEEL COMPANY
OSHRC Docket Nos. 76-4636; 76-4637
Occupational Safety and Health Review Commission
March 9, 1978
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald Gaswirth, Regional Solicitor, USDOL
John C. Harrington, Jr., for the employer
OPINION:
DECISION
BY THE COMMISSION:
This matter is before the Commission on interlocutory appeal from Judge James M. Cronin's order, dated April 7, 1977, denying respondent's motion to dismiss. We affirm and remand for a hearing on the merits.
The citations here resulted from separate but related inspections of respondent's Oklahoma City facility by Occupational Safety and Health Administration personnel. The citations in No. 76-4637 resulted from an inspection commencing on July 16, 1976, that was prompted by written complaints as to asserted unsafe conditions. The complaining parties were no longer employed by respondent at the time of the filing of their complaints or at the time of the inspections. The inspectors, observing alleged health hazards, recommended that a separate industrial hygiene inspection be initiated. On July 23, 1976, an industrial hygiene inspection began which resulted in issuance of the citations involved in No. 76-4636.
On application of respondent, the Judge held [*2] a preliminary hearing in this matter to take evidence concerning the validity of the Secretary's inspections. Following that hearing, respondent moved to vacate the citation and complaint on the grounds that the inspection was in violation of section 8(f)(1) of the Act and had violated respondent's Fourth Amendment rights. Judge Cronin rejected respondent's arguments and respondent thereafter filed this interlocutory appeal.
Respondent first argues that the July 16, 1976, inspection is invalid inasmuch as section 8(f)(1) of the Act n1 contemplates that only complaints from current employees can form an adequate basis for inspection under that section. Inasmuch as all the citations had their genesis in an allegedly invalid section 8(f)(1) inspection, respondent contends that all of the citations are likewise invalid.
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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.
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Second, respondent argues that the Secretary's alleged failure to comply with the requirement of section 8(f)(1) that [*3] ". . . a copy [of the employee complaint] shall be provided the employer or his agent no later than at the time of inspection. . ." wrongfully induced it to waive its constitutional right to demand a search warrant based upon probable cause prior to permitting an inspection pursuant to section 8(a) of the Act.
Third, and finally, respondent argues that section 8(a)'s provision for warrantless inspections is unconstitutional.
We reject respondent's contentions. The Judge correctly relied upon our holding in Aluminum Coil Anodizing Corp., 77 OSAHRC 70/A2, 1 BNA OSHC 1508, 1973-74 CCH OSHD para. 17,185 (No. 829, 1974) decision following remand 77 OSAHRC 70/A2, 5 BNA OSHC 1381, 1975-76 CCH OSHD para. 20,315 (No. 829, 1977). There, we held that an inspection ostensibly conducted pursuant to section 8(f)(1), but contrary to its terms, is nonetheless valid if otherwise in accord with section 8(a), the basic source of inspection authority under the Act. There is no showing on this record that the inspections in question were inconsistent with the provisions of section 8(a).
We do not reach the latter two arguments. Before we could conclude that respondent was wrongfully [*4] induced to waive its right to a search warrant we would have to find that respondent has such a right. As we have noted previously, however, section 8(a) plainly contemplates warrantless inspections. n2 Thus, the right to have a warrant, not having been provided for by the Act, could only be found if the warrant requirement was considered to be necessary to preserve the constitutionality of section 8(a) as it is now written. The Commission is without authority to question the constitutionality of its enabling legislation. Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), pet. for review docketed, No. 76-1467 (5th Cir., Feb. 19, 1976).
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n2 Western Waterproofing Co., Inc., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1303, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976), rev'd on other grounds, 560 F.2d 947 (8th Cir. 1977). Accord, barlow's, Inc. v. Usery, 424 F. Supp. 437, 441 (D.C. Idaho, 1976) prob. juris. noted 97 S.Ct. 1642 (1977).
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Similar reasoning precludes consideration of respondent's third argument which is a direct attack on the constitutionality of section 8(a).
We conclude that the inspections and resulting citations are not invalid and that the Judge did not err in denying respondent's motion to dismiss.
Accordingly, it is ORDERED that the Judge's order is affirmed and the case is remanded for an expedited hearing on the merits in accordance with 29 CFR § 2200.101.