SECRETARY OF LABOR,
Complainant,

v.

HARRISON FURNITURE MANUFACTURING CO.,
Respondent.

OSHRC Docket No. 80-0325

DECISION

Before:  BUCKLEY, Chairman, and WALL, Commissioner.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

Harrison Furniture Manufacturing Company ("Harrison") was cited for various violations of the Act following an inspection of its plant in Harrison, Arkansas.   The inspection was conducted under an inspection warrant.  Before Administrative Law Judge John S. Patton, Harrison argued that the warrant was invalid, and moved to suppress the evidence gathered during the inspection.  Denying Harrison's motion in part, the judge ruled that the warrant was valid to the extent that it authorized the inspection of the specific working conditions listed in the warrant application.  However, the judge also concluded that the warrant was overly broad in authorizing a full-scope (wall-to-wall) inspection of Harrison's plant.  In the judge's view, since OSHA sought the warrant based solely on the complaint of a former employee of Harrison about specific working conditions at the plant, the warrant should have limited the inspection to those specific conditions.  Based on these rulings, the judge held that Harrison was entitled to suppression of some, but not all, of the evidence obtained during the inspection.  Both the Secretary and Harrison sought, and were granted, Commission review of the judge's fourth amendment rulings.[[1]]

The two participating Commission members have different views concerning the Commission's authority to review the decision of a judge or magistrate to issue an inspection warrant.[[2]]  In Chairman Buckley's view, the Commission, as an agency within the executive branch, has no authority to review the actions of a judicial officer of a court created under Article III of the Constitution. E.g., Phoenix Forging Co., 85 OSAHRC ____, 12 BNA OSHC 1317, 1319, 1985 CCH OSHD ¶ 27,256, p. 35,211-12 (No. 82-398)(view of Chairman Buckley), and cases cited therein.  Therefore, Chairman Buckley would hold that the Commission should not review Harrison's arguments for suppression of the evidence which relate to the magistrate's decision to issue the warrant.

Commissioner Wall concludes that the Commission, in considering whether to suppress evidence in its proceedings, has the authority to determine whether the inspection warrant is supported by probable cause.  See Pennsylvania Steel Foundry & Machine Co., 86 OSAHRC ___, 12 BNA OSHC 2017, 2023-24, 1986 CCH OSHD ¶ 27,671, p. 36,067 (No. 78-638, 1986)(view of Commissioner Wall), pet. for review filed, No. 86-3546 (3d Cir. Sept. 8, 1986).  However, a finding that the inspection warrant is not supported by probable cause does not necessarily require the suppression of the evidence, for the good faith exception to the exclusionary rule applies to Commission proceedings.  Consistent with the Supreme Court's decision in United States v. Leon, 104 S.Ct. 3405, 3421 (1984), Commissioner Wall would not suppress evidence gathered by OSHA inspectors in objectively reasonable reliance, on an inspection warrant.   See Synkote Paint Co., 86 OSAHRC ____, 12 BNA OSHC 2036, 2041-42, 1986 CCH OSHD ¶ 27,675, p. 36,087-88 (No. 83-2, 1986)(view of Commissioner Wall).

This case was directed for review before the Supreme Court's decision in Leon.   Under Commission precedent in effect when the case was before the judge, the good faith exception to the exclusionary rule was held to be inapplicable to Commission proceedings. Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982).   Consequently, the parties could not have been expected to, and did not fully litigate the issue of whether the evidence was gathered by inspectors in objectively reasonable reliance on a search warrant.  For this reason,
Commissioner Wall concludes that fairness dictates that the parties be given an opportunity to present evidence on that issue.[[3]]

Although Chairman Buckley concludes that the Commission has no authority to review the decision of a magistrate to issue a warrant, he agrees with Commissioner Wall that the most expeditious course of action is to allow the parties to complete the record on the good faith issue.  Receipt of evidence and argument on good faith will facilitate the Commission's disposition of this case, and will ensure that the record is complete in the event that judicial review is sought under section 11(a) or 11(b) of the Act, 29 U.S.C. § 660(a), 660(b).  Accordingly, the case is remanded to the Chief Judge for assignment to an administrative law judge.[[4]]

On remand, the judge shall afford the parties the opportunity to present further evidence and argument on the good faith question. The parties should address both whether OSHA acted in good faith in seeking a warrant based on the information set forth in the warrant application, and whether it acted in good faith in obtaining a full-scope inspection warrant, rather than a more limited warrant.  Further, consistent with the Supreme Court's decision in Leon, the good-faith inquiry should be confined to whether a reasonably well-trained OSHA inspector would have known the inspection was illegal despite the magistrate's authorization.  In making this determination, all of the circumstances--including whether the warrant application had previously been rejected by a different magistrate--may be considered.  See Leon, 104 S.Ct. at 3421 n.23.  The judge shall enter findings of fact and conclusions of law on the good faith issue.  The Commission shall retain jurisdiction of the case pending receipt of these additions to the record.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  November 21, 1986

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail (lwhitsett@oshrc.gov), telephone (202-606-5398), fax (202-606-5050), TTY (202-606-5386).

FOOTNOTES:

[[1]] The parties, following the judge's suppression rulings, waived a hearing on the merits.  The parties stipulated which citation items should be affirmed or vacated based on the judge's rulings.

[[2]] As established by the Act, the Commission is composed of three members.   Section 12(a) of the Act, 29 U.S.C. § 661(a). Presently, the Commission has two members as a result of a vacancy.

[[3]] As the Fifth Circuit, citing language in the Supreme Court's decision in Leon, stated in Davis Metal Stamping, Inc. v. OSHRC, 800 F.2d 1351, 1354, n.2 (5th Cir. 1986), a reviewing body may exercise discretion in its decision-making process on issues of probable cause.  It may deal directly with probable cause issues, or proceed to a consideration of the officer's good faith without resolving the fourth amendment issues.   In this case, Commissioner Wall considers it to be a close question as to whether the warrant was supported by probable cause.  Therefore, he concludes that it would be better to allow the parties to complete the record on good faith, since that issue may be dispositive, rather than to review the parties' probable cause arguments at this time.

[[4]] Administrative Law Judge John S. Patton is no longer with the Commission.