SECRETARY OF LABOR,
Complainant,

v.

HARRISON FURNITURE MANUFACTURING COMPANY,
Respondent.

OSHRC DOCKET NO. 80-0325

ORDER

The Commission approves the parties' settlement agreement.

FOR THE COMMISSION
RAY H. DARLING, JR
EXECUTIVE SECRETARY

Dated: March 20,1987






WILLIAM F.BROCK, Secretary of Labor,
United States Department of Labor,
Complainant

v.

HARRISON FURNITURE MANUFACTURING
COMPANY, AND ITS SUCCESSORS,
Respondent

OSHRC DOCKET NO. 80-0325

SETTLEMENT AGREEMENT

Come now complainant and respondent and submit the following settlement agreement pursuant to Rule 2200.100 of the Commission's Rules of Procedure:

1. Complainant agrees to and hereby withdraws all the citations issued to respondent and the complaint in this cause.

2. Respondent certifies that a copy of this settlement agreement has been served upon the unrepresented affected employees in the manner set forth in Rule 2200.100 of the Rules of Procedure, by posting same on the 3rd day of March, 1987.

3. Each party hereby agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.



GEORGE R. SALEM
Solicitor of Labor

JAMES E. WHITE
Regional Solicitor

HARRISON FURNITURE
MANUFACTURING COMPANY

JACK F. OSTRANDER
Counsel for Safety and Health

DONALD W. JONES
Attorney

Hulston, Jones & Sullivan
Attorneys & Counselors at law

ALLEN REID TILSON
Attorney

U.S. Department of Labor Office of the Solicitor
Attorney for Respondent
Attorney for Complainant

OSHA Inspection No. L4963-289

Case No. 111663 (SOL)


NOTICE TO AFFECTED EMPLOYEES
NOT REPRESENTED BY A LABOR ORGANIZATION


EACH AFFECTED EMPLOYEE WHO IS NOT REPRESENTED BY A LABOR ORGANIZATION HEREBY IS GIVEN NOTICE THAT ANY OBJECTIONS TO THE ENTRY OF AN ORDER APPROVING THIS SETTLEMENT AGREEMENT MUST BE FILED WITHIN TEN (10) DAYS FROM THE DATE THAT THIS SETTLEMENT AGREEMENT IS POSTED. SUCH OBJECTIONS MUST BE SET FORTH IN WRITING AND MAILED TO HONORABLE STANLEY A. SCHWARTZ, ADMINISTRATIVE LAW JUDGE OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION,
WITH COPIES TO COMPLAINANT AND RESPONDENT.



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 2.0 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, Com mission 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 Harris'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 279675, 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, 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


SECRETARY OF LABOR,
Complaint,

v.

HARRISON FURNITURE
MANUFACTURING COMPANY,
Respondent.

OSHRC. Docket No. 80-325

AMENDMENT TO DECISION AND ORDER

It appears that errors were inadvertently made in the order served in this cause which is to be filed on September 3, 1981. It is correctly stated on page 52 of the decision and order that allegations of violation relating to the finish mill area should be dismissed. It appears, however, that said items were listed in both the Conclusions of Law and in the Order part of the decision as items which were sustained. It further appears that Item 18 alleging a violation of Standard 29 C.F.R. 19160.176(g) is reflected on page 58 of the decision as a serious violation whereas it should be listed as a nonserious violation. Item 9 is also reflected on page 33 of the decision as a serious violation although the parties stipulated that it be designated as an "other" violation.

It is therefore ordered that:

There he and hereby is inserted at the end of the first paragraph on page 28 of the decision the following:

"In the stipulation, the parties agreed that Item Nos. 7A, 7B, 8, 90 10, 28A(e) and 31 of Serious Citation No.1 should be reclassified as 'other' or 'nonserious' violations. In the listing of items below, said items are listed as designated in the stipulation rather than as originally designated in the citation."

On page 54 of the decision, there be and hereby is deleted the following items: 15 e), 16A, 16B, 16C, 17A b), 17B a), 17C a), 18A, 18B, 19 a), b), c), d), 20 a), b), c), d), e), 23 b), 24A d), and 24C g), h), i).

On page 55, there be and hereby is deleted the following items: 17A, 17B, 21 and 26 a).

On page 56, item 28A e) be and hereby is deleted.

On page 59, there be and hereby is added above "Other Citation No. 2" and as a part of the alleged serious violations which have not been sustained the following:

Item No. Standard ( 29 CFR)
15 c) 1910.213(b)(6)
16A 1910.213(c)(2)
16B 1910.213(c)(1)
16C 1910.213(c)(3)
17A b) 1910.213(h)(1)
17B a) 1910.213(h)(3)
17C a) 1910.213(h)(4)
18A 1910.213(k)(1)
18B 1910.213(k)(2)
19 a), b), c), d) 1910.213(n)(1)
20 a), b), c), d) 1910.213(n)(3)
23 1910.213(r)(4)
24A d) 1910.219(d)(1)
24C g), h), i) 1910.219(e)(3)(i)

At the bottom of page 60 of the decision there be and hereby is added:

Item No. Standard (29 CFR)
17A 1910.169(b)(3)(i)
17B 1910.169(b)(3)(ii)

 

Item No. Standard (29 CFR)
1910.21300)
21(a) 1910.242(b))
28A e) 1910.309(a) incorporating
250-4-2, NEC, NFPA 70-1971

On page 61 of the decision, the following items are deleted:

Item No. Standard (29 CFR)
15 c) 1910.213(b)(6)
16 A 1910.213(e)(2)
16B 1910.213(e)(l)
16c 1910.213(c)(3)
17 A W 1910.213(h)(l)
1-4 B a) 1910.213(h)(3)
17c, a) 1910.213(h)(4)
18 A 1910.213(k)(t)
18D 1910.213(k)(2)
19 a), w, c), d) 1910.213(n)(I)
20 a) ,b) ,c), d) 1910.213(n)(3)

On page 62 of the decision, the following items are deleted:

Item No, Standard (29 CFR)
23 b) 1910.213(r)(4)
24A d) 1910.219(d)(l)
24C g), h), i) 1910.219(c)(3)(i)



On page 63, there be and hereby is deleted the following items: 17A, 17B, 21 and26 c).

On page 64 of the decision, there be and hereby is deleted Item 28A e).

On page 67 of the decision immediately above "Other Citation No. 2", and as a part of the alleged serious violations which are dismissed, there be inserted:

Item No. Standard (29 CFR)
15 c) 1910.213(b)(6)
16A 1910.213(c)(2)
16B 1910.213(c)(1)
16C 1910.213(c)(3)
17A b) 1910.213(h)(l)
17B a) 1910.213(h)(3)
17C a) 1910.213(h)(4)
18A 1910.213(k)(1)
18B 1910.213(k)(2)
19 a), b), c), d) 1910.213(n)(1)
20 a), b), c), d) l910.213(n)(3)
23 b) 1910.213(r)(4)
24A d) 1910.219(d)(I)
24C g), h), i) 1910.219(e)(3)(i)


On page 68 of the decision tit the conclusion of the listing of standards on that p4ge and. immediately above the date, there be and hereby is inserted the following:

Item No. Standard (29 CFR)
17 A 010.169(b)(3)(i)
17 B 1910.169(b)(3)(ii)
21 1910.213(1)(6)

 

Item No. Standard (29 CFR)
26 a) 1910.242(b)
28A c) 1910.309(a) incorporating
250-42, NEC, NFPA 70-1971


Item 18 alleging a violation of Standard 29 C.F.R. 1910.176(g) be and hereby is deleted from page 58 of the decision and is inserted at the bottom of page 60 of the decision.

Item 9 alleging a violation of Standard 29 C.F.R. 1910.107(e)(9) be and hereby is deleted from the top of page 33 of the decision and there is inserted immediately following the second new paragraph on said page the following:

"Further included in this classification is Item 9, Standard 29 C.F.R. 1910.107(e)(9), the designation of which is changed by the stipulation of the parties from 'serious' to 'other'".

Dated this 25th day of August, 1981.

JOHN S. PATTON
Judge




SECRETARY OF LABOR,
Complainant,

v.

HARRISON FURNITURE MANUFACTURING COMPANY,
Respondent.

OSHRC Docket No. 80-0325

APPEARANCES:

Richard L. Collier, Esquire, Office of the Solicitor, Dallas, Texas, representing the complainant.

Donald W. Jones, Esquire, P. O. Box 1185, Springfield, Missouri, representing the respondent.

DECISION AND ORDER

This case is before the Occupational Safety and Health Review Commission on the complaint of complainant alleging that respondent, Harrison Furniture Manufacturing Company, has violated numerous standards under the Occupational Safety and Health Act (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act).

The parties executed an agreement stipulating the record in this case and waiving a hearing. The principal issue remaining for decision relates to the validity of the inspection warrant.

ISSUES IN THE CASE

It is alleged in the complaint and citations that the respondent committed the following violations:

29 CFR 1910.23(c)(1): Open sided floor(s) or platform(s) 4 feet or more above the adjacent floor or ground level were not guarded by standard railings (or the equivalent as specified in 29 CFR 191O.23(e)(3)), on all open sides:

The opening in the floor of platform on the Carter-Day dust collector between the upper ladder and lower ladder accesses was not guarded, covered or provided with other means to prevent employee from falling.

29 CFR 1910.37(f)(1): Exit access(es) were not arranged so that exits were readily accessible at all times:

The sliding door by the wipe stain booth in the finish room was partially blocked by 55 gallon barrels.

29 CFR 1910.37(f)(2): Door(s) from room(s) to exit(s) or to way(s) of exit access were not of the side hinged, swinging type:

Two doors used for exits on the west side of the finish room were the side rolling type.

29 CFR 1910.36(d)(2): Fire doors were not maintained in proper operating condition:

The fire door at the wash off room was blocked back and not operational.

29 CFR 1910.106(e)(2)(iv)(a): Flammable liquids were not kept in covered container(s) when not actually in use:

The dip tank where finish is removed in the wash off room did riot have a cover.

29 CFR 1910.106(e)(5)(i): Adequate fire extinguishment or controls were not provided where flammable liquids are used:

The dip tank located in the wash off room did not have a self closing lid with fusible link or equivalent fire extinguishing methods.

29 CFR 1910.107(b)(7): Spray booths were not made with the openings as small as practical where material is carried into or out of the spray booths by conveyor:

a) The sap and toner spray booth in the finish room did not have the ends enclosed as much as practical.

b) The west lacquer spray booth located at the south end of the finish room.

c) The final lacquer spray booth located and the north end of the finish room.

d) The east lacquer spray booth located at the south end of the finish room.

e) The sealer spray booth located in the finish room.

g) Toner booth #2 in the finish room did not have the ends enclosed as much as practical.

h) The wipe stain booth in the finish room did not have the ends enclosed as much as practical.

29 CFR 1910.107(b)(6): Spray booths having metal deflectors or curtains not less than 2 1/2 inches deep installed at the upper outer edge of the booth over the opening:

a) The east lacquer spray booth located at the south end of the finish room.

b) The west lacquer spray booth located at the south end of the end of the finish room.

c) At the #2 toner booth located in the finish mill.

29 CFR 1910.107(c)(5): Electrical equipment not approved for locations containing both deposits of readily ignitable residues and explosive vapors was present in spraying area(s):

a) The 4 flourescent light fixtures located inside the front edge of the lacquer booth (east) at the south end of the finish room.

b) The flourescent light fixture located just inside the front of the #2 toner spray booth in the finish room.

c) The flourescent light fixture located on the south end of the sealer spray booth in the finish room had residue buildup.

29 CFR 1910.107(c)(6): Electrical wiring and equipment outside of but within 20 feet of spraying area(s), and not separated therefrom by partitions, did not conform to the provisions for Class I, Division 2, hazardous locations:

a) The switch box and the drive motor for the conveyor located at the south end of finish room.

b) On the final lacquer spray booth in the finish room, a conduit outlet fitting opening did not have a seal where a cable entered and a conduit outlet fitting on the flourescent light where the cable enters it was partially open.

c) Conduit was disconnected at the junction box of the north light fixture on the west lacquer spray booth at the south end of the finish room.

d) A conventional type switch was located on a post near the area where bed rails are sprayed with edge filler in the southwest corner of the finish room.

29 CFR 1910.107(c)(6): Electrical wiring and equipment not subject to deposits of combustible residues but located within spraying area(s) was not of the explosion-proof type approved for Class I, Group D, locations conforming to the provisions of Class I, Division I, hazardous locations.

The three flourescent lights located inside the front edge of the final lacquer spray booth in the finish room.

29 CFR 1910.107(c)(7): Electric lamps outside of but within 20 feet of spraying area(s), and not separated therefrom by partition(s), were not totally enclosed to prevent the falling of hot particles:

a) Two open bulbs above the rough wiping area by the wipe stain booth in the finish room

b) The three lights located at the front of #3 was coat spray booth in the finish room.

c) There was one open electric bulb near the area where bed rails are sprayed with edge filler ni the southwest corner of the finish room.

29 CFR 1910.107(d)(2): Spraying area(s) were not provided with mechanical ventilation adequate to remove flammable vapors, mists or powders to a safe location and to confine and control combustible residues:

a) The southwest corner of the finish room was used to spray bed rails with edge filler and no booth or ventilation was provided.

b) Tops of furniture being sprayed from a stand located in the curve of the conveyor between the two lacquer spray booths in the finish room.

29 CFR 1910.107(g)(1): Spraying was conducted outside of predetermined areas:

a) The operator at the sap and toner spray booth started spraying approximately 5 feet before the item entered the spray booth.

b) The operator at toner booth #2 started spraying before the item entered the spray booth.

29 CFR 1910.107(e)(2): The quantity of flammable or combustible liquids kept in the vicinity of spraying operation(s) exceeded the minimum required for operation:

a) At the southwest corner of the finish room where bed rails are sprayed with edge filler.

b) The seven 55 gallon drums of flammable liquid stored by the sap and toner booth in the finish room.

c) The five 55 gallon drums of toners located by toner booth #2 in finish room.

d) The eight 55 gallon drums of various colors of wiping stains all with flammable label, located in the vicinity of the wipe stain spray booth in the finish room.

29 CFR 1910.107(e)(9): Flammable or combustible liquids for use in spraying operations were transferred from one container to another without both containers being effectively bonded and grounded to prevent discharge sparks of static electricity:

a) Flammable liquids were transferred from 55 gallon drums to smaller containers in the southwest corner of the finish room where bed rails are sprayed with edge filler.

b) Flammable liquids were transferred from 55 gallon drums into smaller cans or paint pots by the #2 toner booth in the finish room.

(c) Various colors of wiping stain near the wipe stain booth in the finish room.

29 CFR 1910.107(g)(2): Spraying area(s) were not kept free from the accumulation of deposits of combustible residues:

a) The wipe stain booth located in the finish room had excess amounts of paint on floor, baffle plater and conveyor.

b) The floor area is sticky and has a buildup of residue where the items exit the wipe stain booth and are wiped off.

c) The conveyor located in the east lacquer spraying booth at the south end of finish room had an excessive amount of overspray.

d) The west lacquer spray booth located at south end of finish room had an excess amount of lacquer residue built up around the exhaust duct and blades of fan.

29 CFR 1910.212(a)(1): Machine guarding was not provided to protect operator(s) and other employees from hazard(s) created by ingoing nip points, pinch points and rotating parts:

a) The rubber belt on the Karl Hessemann single belt self-feed sander, S/N 106897, located in the sanding deportment, was not provided with guards at each nip point where the belt runs onto a pulley.

b) The Onsrud Berthelsen veneer press, Independent Stove Co. #293, located in the veneer department, had a pinch point at each end as the carrying mechanism for the cowl sheets reached the end of its travel and either impacted or stopped at the metal posts at the ends of the frame.

c) A rotating brush heated under the off bearer end of the Salen sander #370 in the sanding department.

29 CFR 1910.212(a)(i): Fan blade guard(s) were not provided where the periphery of the blades was 'less than seven feet from the floor or working level:

a) The fan on the air compressor water cooling tower located at the east side of the air compressor room.

b) The air make up unit located on the west wall of the finish room near the wipe stain booth did not have a guard across the end and the guard on front was loose at the bottom.

c) Guards were not provided at either side of the squirrel cage type fan located in the pre-assemble area of the sanding department.

d) The refrigeration unit fan for the cooling unit on the panel flow at the west side of the rough mill did not have a guard.

29 CFR 1910.213(a)(12): The portion of circular saws beneath or behind the table, where there was a possibility of contact with the saw, was not covered with a guard or exhaust hood:

a) On the Wallace 10 inch table saw located in the sample area.

b) The Allispede self feed gang rip saw located on the east side of the rough mitt, did not have a guard to prevent accidental contact with the saws under the table.

29 CFR 1910.213(b)(5): Positive means was not provided on each machine operated by electric motors to render such controls or devices inoperative while repairs or adjustments are being made:

a) The Nash sander, No. 45, located in the sanding department.

b) The Salem sander #370, located in the sanding department.

29 CFR 1910.213(b)(6): Operating treadles on woodworking machines were not protected against unexpected or accidental tripping:

a) The two Bell Machine Co. sliding cut-off saws, located at north end of the rough mitt, did not have a guard over the foot treadle.

b) The foot treadle on the Capital 12 ft. veneer clipper, S/N 1594, located in the veneer department, was not covered.

e) The two feet pedals on the Rye horizontal router, located at the east side of the finish mill, did riot have a guard over them.

29 CFR 1910.213(c)(2): Hand-fed circular ripsaw(s) were not furnished with a spreader to prevent material from squeezing the saw or being thrown back on the operator:

The Tannewitz table saw, Independent Stave Co. #241, located in the finish mill, was not provided with a spreader.

29 CFR 1910.213(c)(1): Circular hand-fed ripsaw(s) were not guarded by an automatically adjusting hood which completely enclosed that portion of the saw above the table and above the material being cut:

The Tannewitz table saw, Independent Stave Co. #241, located in the finish mill, was not provided with a guard on 10/17/79.

29 CFR 1910.213(c)(3): Hand-fed ripsaw(s) did riot have nonkickback fingers or dogs so located as to oppose the thrust or tendency of the saw to pick up the material or to throw it back toward the operator.

The Tannewitz table saw. Independent Stave Co. #241, located in the finish mill, was not provided with non-kickback fingers or dogs on 10/17/79.

29 CFR 1910.213(h)(1): Radial saw(s) did not have an upper hood that completely enclosed the upper portion of the blade down to a point including the end of the saw arbor, and the sides of the lower exposed portion of the blade were not guarded to the full diameter of the blade by a device that automatically adjusted itself to the thickness of the stock and remained in contact with the material being cut:

a) The DeWalt radial arm saw located at the south end of the rough mill.

b) The DeWalt 16 in. radial saw located next to the ramp in the finish mill.

c) The Multiplex 40-A radial arm saw, Independent Stave Co. #227, located in the sample area.

29 CFR 1910.213(h)(3): Radial saw(s) were not provided with an adjustable stop to prevent the forward travel of the blade beyond the position necessary to complete the cut in repetitive operations:

a) The DeWalt 15 in. radial saw located next to the ramp in the finish mill.

b) The Multiplex 40-A radial arm saw, Independent Stave Co. #227, located in the sample area.

29 CFR 1910.213(h)(4): Radial saw(s) were not installed in a manner so as to cause the cutting head to return gently to the starting position when released by the operator:

a) The DeWalt 16 in. radial saw located next to the ramp in the finish mill.

b) The Multiplex 40-A radial arm saw, Independent Stave Co. #227, located in the sample area.

29 CFR 1910.213(g)(1): Sliding cutoff saw(s) were not provided with an automatically adjusting hood that completely enclosed the upper half of the saw, the arbor end, and the point of operation at all positions of the saw:

The two Bell Machine Co. sliding cut-off saws located at north end of the rough mill did not have a guard that automatically covered the lower portion of the blade.

29 CFR 1910.213(K)(1): Feed chains were not guarded and the upper feed chains had an inadequate guard which could allow fingers to get caught, on the Challoner double end tenoning machine at the northwest corner of the finish mill.

29 CFR 1910.213(K)(2): At the rear ends of frames on tenoning machines, over which feed conveyors ran, sprockets and chains were not guarded at the sides by plates projecting beyond the periphery of sprockets and the ends of lugs:

At the upper and lower feed conveyors on the Challoner double end tenoning machine located in the northwest corner of the finish mill.

29 CFR 1910.213(n)(1): Metal guards covering the cutting heads, and saws if used, were not provided on:

a) The left side cutting head had an inadequate guard over its top and the unused portion of the bottom cutting head was not guarded on the Woods Machine Co. molding machine in the finish mill.

b) The two side cutting heads were not adequately guarded over the top of them and the last cutting head was not guarded at either end, on the Robinson molding machine in the finish mill.

c) The two side cutting heads were not adequately guarded over the top of them and the unused portion of the bottom cutting head was not guarded, on the Mattison Machine Works molding machine in the finish mill.

d) The 4 cutting heads of the Hart Molding machine located in the finish mill, were not adequately guarded.

29 CFR 1910.213(n)(3): Hoods or suitable guards were not provided to prevent the hands of the operator from coming in contact with the in running rolls of feed rolls on molding machines:

a) The three feed rolls on the Woods Machine Co. molding machine did not have a guard over them.

b) The guard over the feed rolls of the Robinson Molding Machine was not as wide as the feed rollers, did not cover the sides and was not fastened to the frame so as to remain in adjustment for any thickness of stock.

c) The guard over the feed roll of the Mattison Machine Works molding machine was not adjusted low enough.

d) The Hart molding it machine located in the finish mill.

29 CFR 1910.213(p)(4): Belt ending machinery was not provided with a guard at each nip point where the sanding belt ran onto a pulley, to prevent the operator's hands or fingers from coming into contact with nip points:

a) The Wysong belt sander located in the sanding department, no identification number found, one end has no guard where the belt runs onto pulley and other end has an exhaust hood that needs extended to be adequate.

b) The home made belt sander, Independent Stave Co. #262, located in the sanding department.

c) The Wysong belt sander, Independent Stave Co. #213, located in the sanding department.

d) An additional section of guard needs installed over the top of the pulley and belt where the off bearer stands next to the belt guard on the Critz edge sander, located in the sanding department.

e) The home made belt sander, Independent Stave Co. #266, located in the sanding department.

f) The horizontal belt sander manufactured by Beach Manufacturing Co., Independent Stave Co. #303, located in the sanding department.

g) The home made vertical drawer sanding machine located in the cabinet room.

29 CFR 1910.213(q)(2): Veneer clippers had neither automatic feed nor a guard which would make it impossible to place a finger or fingers under the knife while feeding or removing the stock:

a) The Capitol Machine Co. 6 ft. veneer clipper located in the veneer department.

b) The Capital 12 ft. veneer clipper, S/N 1594, located in the veneer department.

29 CFR 1910.213(r)(4): Suitable guards were not provided to reduce to ft minimum the hazard due to the point of operation of veneer edger and female dove tail machine:

a) The cutting head on the veneer edger, Independent Stave Co. #276, located in the veneer department was not guarded sufficiently by the combination guard/exhaust hood.

b) The 14 cutting knives or bits located on the female dove tail machine, in the finish mill, are not guarded where they are exposed at the rear of the machine.

29 CFR 4910.219(d)(1): Pulley(s) with part(s) seven feet or less from the floor or work platform were not guarded in accordance with the requirements specified at 29 CFR 1910.219(m) & (o):

a) The pulleys on the two large air compressors, located in the main compressor room, one with a GP symbol and the other a Sullivan.

b) The pulleys on the hog blower motor located by the entrance to the boiler room.

c) The pulleys on the hog that grinds scrap for the furnace and located outside the main compressor room door.

d) The pulleys located at the rear of the Mareen-Johnson double end tenoning machine in the northwest corner of the finish mill.

e) The pulleys on the motor and fan #3 for the Carter-Day dust collector.

f) The pulleys on the motor and blower that blows dust from the finish mill cyclone to the dust collector by the furnace.

g) The pulleys on the Samuel Rogers knife sharpener, Co. #337, located in the knife grinding area.

h) On the squirrel cage type fan located in the pre-assembly area of the sanding department.

e) The two pulleys on the blower and motor for kiln #1 located in the upstairs room for kiln #1.

29 CFR 1910.219(e)(1)(i): Horizontal belts which had both runs 42 inches or less from the floor level were not fully enclosed by guards conforming to requirements specified in 29 CFR 1910.219(m) and (o):

The glue mixer, no identification, located by the panel flow glue machine at the west side of the rough mill, did not have a guard over the V belt.

29 CFR 1910.219(e)(3)(i): Vertical or inclined belt(s) were not enclosed by guard(s) conforming to the requirements specified at 29 CFR 1910.219(m) and (o):

a) The two large air compressors located in the main compressor room, one with a GP symbol on it and the other a Sullivan, did not have guards over the belts.

b) The 4 V belts on the blower motor for the hog located by entrance to the boiler room.

c) The V belts on the hog that grinds scrap for the furnace and located outside the main compressor room door.

d) The V belts at the motor for the lumber lift in the rough mill were fully enclosed.

e) On the small glue spreader by Bell glue machine in the rough mill.

f) The three V belts located on the out feed end of the Buss No. 55 planer in the rough mill, were only partially guarded as part of the guard had been cut out.

g) The adjustable type belt located at the rear of the Mereen- Johnson double end tenoning machine in the northwest corner of the finish mill, was not completely enclosed.

h) The crossed flat belt and the flat belt that drives the feed rollers on back side of the Hart molding machine, located in the finish mill.

i) The single spindle drill press with Independent Stave Co. #237 on metal tag, located in the finish mill.

j) The four V belts on the motor and fan #3 to the Carter-Day last collector, were not guarded.

k) The three V belts on the motor and blower that blows dust from the finish mill cyclone to the dust collector by the furnace.

l) The guard over the belts on the unidentified table saw, Independent Stave Co. #204, located in the sample area, had openings too large and did not fully enclose the belts.

m) The V belts under the Capital 12 ft. veneer clipper, located in the veneer department, were not guarded.

n) The flat belt located on the off bearer end of the Salem sander #370, located in the sanding department.

o) The existing guard on the Vonnigut head brush sander has opening too large and does not fully enclose the belt, located in the sanding department.

p) The V belt on top of the Delta Rockwell drill press, S/N 103 440, located in the maintenance shop.

q) The three V belts located on the Samuel Rogers knife sharpener, Co. #337, located in the knife grinding area.

r) On the squirrel cage type fan located in the pre-assembly area of the sanding department.

s) The fear V belts on the blower for kiln #1 located in the upstairs room for kiln #1.

t) The V belt on the small air compressor against the south wall of the upstairs room of kiln #1.

29 CFR 1410.219(00): Sprocket wheels and chains which were seven feet or less above floors or platforms were not fully enclosed:

a) The sprockets and chains between the conveyors and another one just below these that turns the glue roller on the Bell glue machine and conveyors located at the south end of the rough mill.

b) The guard over the chain and sprocket behind the panel flow glue machine located at the west side of the rough mill was partially removed and loose.

c) The upper conveyor drive chain of the Bell glue machine, located at the south end of the rough mill, did not have a guard.

d) A short chain and two sprockets located on the right side of infeed end of the Allispede self feed gang rip saw located on the east side of the rough mill.

e) The chain and sprockets located on the south end of the two "Rail boys" located next to the two Bell machine Co. sliding cut off saws in the rough and,

f) The chain and sprocket under the out feed end of the No. 2 Yates American rip saw located at the east side of the rough mill.

g) The chop saw conveyor has an unguarded chain and sprocket next to the #4 Marion rip saw in the rough mill.

h) The chain and sprocket under the out feed end of the #4 Marion rip saw located at the east side of the rough mill.

i) The chain and sprockets on the drive motor for the chop saw scrap conveyor at the south end of the rough mill was not fully enclosed.

j) The sprocket and chain on the aisle side of the finish strata planer in the rough mill was not guarded.

k) The two sprockets and chain located on the west end of an auger under the finish mill cyclone.

29 CFR 1910.219(f)(1): Gear(s) were not guarded by a complete enclosure or by one of the methods specified in 29 CFR 1910.219(f)(1)(ii) and (f)(1)(iii):

On the small glue spreader by the Bell glue machine in the rough mill.

29 CFR 1910.243(e)(3): Abrasive wheels used on vertical portable grinder(s) (right angle head grinders) were not provided with safety guard(s) having a maximum exposure angle of 180 degrees and located between the operator and wheel:

The Sioux 7 in. right angle grinder located in the maintenance shop.

29 CFR 1910.309(a) Section 110-17(a), National Electrical Code, NFPA 70- 1971, as adopted by 29 CFR 1910.309(a): Live part(s) of electrical equipment operating at 50 volts or more were not guarded against accidental contact by approved cabinet(s) or other form(s) of approved enclosure(s) or any other approved means:

a) The three energized wire terminals located on the post where the lumber grading conveyor control switch is located.

b) The electric control box for the water coolant pump located in the back of the main compressor room, had an open cover.

c) The plastic parts of the 110 volt receptacle located on the column west of the panel flow was broken and live metal parts were exposed.

d) The toggle switch for the Modine overhead heater located near the time clock in rough mill did not have a cover.

e) The electric toggle switch located on the wall next to the Greenlee #110 planer in the rough mill did not have a cover.

f) The two General Electric control boxes on the feed water tank in the boiler room had pieces of the cover missing which exposed interior live parts.

g) An electric switch box had been left open above the work table on the west wall of the maintenance shop.

h) An electric timer box was open exposing live parts on the wall of the boiler room at the kiln.

i) The flexible cord on the unidentified band saw in the weighing room of the kiln had been poorly spliced and the bare metal parts of the wire had been left exposed.

29 CFR 1910.309(a) Section 250-42, National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): Exposed noncurrent-carrying metal part(s) of fixed equipment that were likely to become energized under abnormal conditions were not grounded:

a) The Vonnigut head brush sander located in the sanding department.

b) The home made belt sander, Independent Stave Co. #266, located in the sanding department.

c) The unidentified band saw, located in the weighing room at the kiln, had only a 2 wire cord, 2 pin plug and the outlets in the room were all the 2 pin ungrounded type.

d) The gas pump located on the south side of the plant.

e) The home made cord wrapping machine located in the finish mill, did not have a ground pin in the plug that provided power to the electric motor.

f)The Wallace 10 inch table saw located in the sample area.

g)The Onsrad router, S N 6245, located in the sample area.

h)The Delta Milwaukee band saw, Independent Stave Co. #201, located in sample area.

29 CFR 1910.309(a) Section 250-43(c), National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): Exposed, noncurrent-carrying metal parts of the electric equipment of crane(s) or elevator(s) were not grounded:

a)The electric motor for the lumber lift in the rough mill area operated with 220 volt, 3 phase electric power did not have a ground wire.

b)The motor for fan #3 to the Carter-Day dust collector which operated at more than 150 volts to ground and was in a wet location.

c)The electric motor for the blower located under the finish mill cyclone did not have a ground wire connected.

29 CFR 1910.309(a) Section 250-45(d), National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): Exposed, noncurrent-carrying metal parts of cord and plug-connected equipment, which were liable to become energized, were not grounded:

a) The unidentified 1/4 in. electric drill located in the bed clamp area of cabinet room did not have a ground.

b) The Black and Decker electric screw driver located in the bed clamp area of the cabinet room did not have a ground.

c) The Sioux bench grinder located in the truck maintenance shop did not have ground pin in the plug.

d) The old cold drink machine used to keep water cold to circulate through the glue spreader at the south end of the rough mill, did have a grounding wire and plug.

e) The Sioux 7 inch right angle grinder located in the maintenance shop.

f) The Stanley pedestal grinder, S/N 5048MI00043, located in the maintenance shop.

g) The micro wave oven in the break area, ground pin missing from the plug.

h) Dollar bill changed in the break area, ground pin missing from the plug.

i) The Willonborg sandwich vending machine located in the break area, ground pin missing from the plug and the machine.

j) The soup and chili hot food vending machine located in the break area did not have continuity between the plug and the machine.

k) The unidentified pedestal fan located in the sealer sanding area in the finish room, did not have a ground pin on the plug.

l) The 42 inch overhead fan located at the north end of the pack line conveyor, did not have continuity between the plug and the motor.

m) The heating element used for glueing sanding belts and the Nicholas & Parks skiving grinder located in the sanding belt assembly area did not have a ground pin
on the plugs.

n) Pepsi Cola machine in the dry lumber shed next to the kiln office had ground pin missing from the plug.

o) The EXL 20 inch box fan located in the sanding belt assembly area was not provided with a 3 wire cord and plug.

29 CFR 1910.309(a) Section 250-51, National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): The path(s) to ground from circuit(s), equipment, and conductor enclosure(s) were not permanent and continuous:

a) The short shop made extension cord the heating element and the Nicholas & Parks skiving grinder was plugged into the sanding belt assembly area did not have a
grounding connection.

b) The receptacle on the wall behind Stanley pedestal grinder, test indicated no ground.

c) The receptacle that the Wittonborg sandwich vending machine was plugged into was of the 2 pin type with no grounding provision, located in the break area.

d) The extension cord used with the Better Pack 555 tape dispenser on the pack line did not have a ground pin.

e) The wrap cutter machine, located next to the exit from the pack out line, was plugged into an extension cord that did not have a ground pin in the plug.

f) The receptacle that the Pepsi Cola machine is plugged into in the dry lumber shed by the kiln office, was not grounded.

29 CFR 1910.213(a)(11): The frames or exposed, noncurrent-carrying metal parts of portable electric woodworking machinery operated at more than 90 volts to ground, were not electrically grounded:

The 7 1/4 inch Skil saw, Model 553, located at the weighing room at the kiln, did not have a ground pin on the plug.

29 CFR 1910.309(a) Section 250-45(b), National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): Exposed, noncurrent-carrying metal parts of cord and plug connected equipment, which were liable to become energized and operated at more than 150 volts to ground, were not grounded.

The Lincoln are welder, Code 7533-703, that was being prepared for use at the west side of the rough mill.

29 CFR 1910.309(b) Section 210-21(b), National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(b): Receptacles connected to circuits having different voltages frequencies or types of current (AC or DC) on the same premises were not designed so that attachment plugs used on such circuits were not interchangeable:

The 220 volt receptacle that the branding iron, manufactured by Staco, Inc., type 3PN1020, is plugged into in the middle of the cabinet room is the type 110 volt plug will fit.

29 CFR 1910.309(b) Section 300-4, National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(b): Conductor(s) subject to physical damage were not adequately protected:

a) The 3 wire conductor providing electric power to the small glue spreader from the junction box on the motor of the old Bell glue machine was subject to damage from lumber carts pushed against it.

b) A wireway has a section of cover missing and 4 control boxes have large electric cables coming out of them not in conduit or protected from damage by any other method, located at the main breaker area in the rough mill.

c) The three conductors supplying power to the Buss No. 55 planer, S/N 82-69, located at the north end of the rough mill.

29 CFR 1910.309(b) Section 300-15(b), National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(b): A box was not installed at  each conduct or splice connection point, outlet, switch point, junction point, or pull point for the connection of metal-clad cable, mineral-insulated metal- sheathed cable, aluminum-sheathed cable, non-metallic-sheathed cable, or other cables and at each outlet and switch point for concealed knob-and- tube wiring:

a)The open wires with twist lock connectors behind the open bulb on the Oakly horizontal belt sander, Independent Stave Co. #211, located in the sanding department.

b)The electric cable connections below the motor starter next to the outside doorway in the main compressor room were not installed in a junction box.

29 CFR 1910.309(b) Section 370-18(c), National Electrical Code, NFPA 70- 1971, as adopted by 29 CFR 1910.309(b): Pull box(es), junction box(es) and fitting(s) were not provided with cover(s) approved for that purpose:

The latch for the cover of the main switch box on the Greenlee #110 single surface planer in the rough mill has been broken, which prevents the cover from being securely closed.

29 CFR 1903.2(a)(1): The OSHA notice was not posted to inform employees of the protections and obligations provided for in the Act:

At the establishment located at N. Walnut St., Harrison, Arkansas.

29 CFR 1904.2(a): The log and summary of occupational injuries and illnesses (OSHA Form No. 200 or its equivalent) was not completed in the detail provided in the form and the instructions contained therein:

An injury resulting in amputation of fingers occurred on 8/16/79 and was not recorded on the OSHA Form No. 200.

29 CFR 1910.22(a)(1): Place(s) of employment were not kept clean and orderly, or in a sanitary condition:
The floor in the weighing room at the kiln had small wood blocks all over it which created a tripping hazard.

29 CFR 1910.25(d)(1)(x): Portable wood ladder(s) with defects were not withdrawn from service and tagged or marked as "Dangerous, Do Not Use":
The 11 foot wood ladder located by the door to the weighing room at the kiln.

29 CFR 1910.26(a)(1)(iii): The spacing of rungs on the metal ladders exceeded 12 inch centers:
The metal ladder located at the south side of kiln #2 had rungs 20 inches apart.

29 CFR 1910.27(c)(1): The perpendicular distance from the center line of rungs to the nearest permanent object on the climbing side of ladders did not meet minimum clearance requirements:

At the top of the ladder that goes from ground level to the platform on the Carter-Day dust collector the corner angle brace narrows the opening to less than 30 in. clearance.

29 CFR 1910.37(q)(2): Door(s) which were not an exit or way of exit access, and which were so located as to be likely to be mistaken for an exit, were neither identified by a sign reading "NOT AN EXIT" or similar designation not identified by a sign indicating their actual character:

The door at the south end of the finish room that leads to the copying room.

29 CFR 1910.106(b)(3)(iv)(a): Underground tanks storing Class 1 liquids were not provided with vents:

The tank storing gas located on the south side of the plant.

29 CFR 1910.106(c)(2)(ii)(b)(2): More than 120 gallons of Class 1B, 1C, 11 or 111 flammable or combustible liquids in containers were located outside of inside storage room(s) or storage cabinet(s):

Five each 55 gallon drums of maple wiping stain was stored at the raw material unloading dock.

29 CFR 1910.106(g)(3)(iii): A clearly identified and easily accessibly switch or circuit breaker was not provided at a location remote from the dispensing device to shut off the power in the event of an emergency:

At the gas pump located at the south side of the plant.

29 CFR 1910.107(e)(5): Containers under pressure, supplying spray nozzles, were not provided with a visible pressure gauge:

The 30 gallon paint pot near #2 toner booth in the finish room had paint over the pressure gauge and could not see gauge.

29 CFR 1910.110(b)(6)(1)(b): Readily ignitable material including weeds and long dry grass were not removed within 10 feet of the containers:

At the 500 gallon butane tank located at the south end of the dry lumber shed at the kiln.

29 CFR 1910.110(h)(6)(ii)(b): Above ground containers were not protected by crash rails or guards to prevent physical damage:

The 500 gallon butane tank located at the south end of the dry lumber shed at the kiln.

29 CFR 1910.1109h)(12): Conspicuous signs prohibiting smoking were not posted within sight of customers served at LP gas dispensing areas:

At the 500 gallon butane tank located at the south end of the dry lumber shed at the kiln.

29 CFR 1910.134(b)(60: Respirators were not stored in a convenient, clean and sanitary location:

The Pulmoson respirators located on the 55 gallon drums near the wipe stain spray booth in the finish room.

29 CFR 1910.169(b)(3)(i): Compressed air receivers were not equipped with one or more spring-loaded safety valves:

The air storage tank located behind the French dove tailer in the finish mill.

29 CFR 1910.169(b)(3)(i): Compressed air receivers were not equipped with indicating pressure gauges:

The air storage tank located behind the French dove tailer in the finish mill.

29 CFR 1910.176(g): Covers and/or guardrails were not provided to protect personnel from the hazards of open hoist shafts:

The hoist opening at the second floor cabinet room where finishing furniture is placed on it to lift up to the finish room did not have a door or guardrail across it when the hoist is lifted.

29 CFR 1910.178(c)(1): High craft rider trucks were not fitted with overhead guards:

The Clark fork lift used for moving lumber at the fitted with overhead guard.

29 CFR 1910.178(p)(1): Powered industrial truck(s) with defect(s) or in any way unsafe had not been withdrawn from service until restored to safe operating condition(s):

a) The 12,000 lb. towmotor fork lift used in the kiln yard did not have an audible warning device.

b) The Yale fork lift, S/N AC043209, used in the raw materials storage area did not have an audible warning device.

c) The Clark fork lift used in the rough mill area did not have an audible warning device.

d) The exhaust pipe was broken or disconnected under the hood of the Yale fork lift, S/N AC043209, located in the raw materials storage area which caused fumes to be exhausted from all around engine compartment.

29 CFR 1910.213(1)(6): Operating treadles on mortising machines were not covered by guards to prevent accidental tripping:

a) On the multi head Bell mortising machine located in the finish mill.

b) On the single head Wysong mortising machine, #284, located in the finish mill.

29 CFR 1910.215(a)(4): Grinding machinery was not used with work rest(s) to support off- hand grinding work:

The Sioux bench grinder located in the truck maintenance shop.

29 CFR 1910.215(b)(9): The distance between the abrasive wheel periphery(s) and the adjustable tongue or the end of the safety guard peripheral member at the top exceeded one-fourth inch:

The Sioux bench grinder located in the truck maintenance shop.

29 CFR 1910.219(b)(1): Flywheel(s) with parts seven feet or less above floor(s) or platform(s) were not guarded in accordance with the requirements specified in
29 CFR 1910.219(b)(1)(i) through (b)(1)(vi):

The flywheel on the hog that grinds scrap for the furnace and located outside the main compressor room was not guarded.

29 CFR 1910.213(h)(1): Projecting key(s), setscrew(s), or other projections in revolving part(s) were not removed, made flush or guarded by metal cover(s):

The flywheel on the veneer edger, Independent Stave Co. #276, located in the veneer department, had a protruding set screw.

29 CFR 1910.242(b): Compressed air used for cleaning purposes was not reduced to less than 30 p.s.i.:

a) Eight air nozzles had more than 30 p.s.i. used at the east side of the finish mill.

b) The air nozzle located by the Salem sander at the sanding department.

c) The air nozzle located in the wall unit assembly area of the cabinet room.

29 CFR 1910.2529a)(2)(ii)(b): Assigned storage space(s) for compressed gas cylinders were so located as to subject such cylinder(s) to the possibility of being knocked over or damaged by passing or falling objects:

a) One oxygen cylinder and one acetylene cylinder located in the raw materials unloading dock were not secured.

b) One oxygen cylinder and one acetylene cylinder located at the maintenance area at the bottom of the ramp were not secured.

29 CFR 1910.252(a)(2)(ii)(d): Valve protection caps were not in place, hand-tight, on compressed gas cylinder(s) not in use or connected for use:

The acetylene cylinder located at the maintenance area at the bottom of the ramp.

29 CFR 1910.252(a)(2)(iv)(c): Oxygen cylinder(s) in storage were not separated from fuel-gas cylinder(s) by a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour:

a) One oxygen cylinder and one acetylene cylinder was stored next to each other at the raw materials unloading dock.

b) One oxygen cylinder and one acetylene cylinder was stored and next to each other at the maintenance area at the bottom of the ramp.

29 CFR 1910.309(n) Section 110-17(b), National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): Electrical equipment exposed to physical damage did not have enclosure(s) or guard(s) so arranged and of such strength as to prevent such damage:

a) Electric wiring and splices to the electric motor for the lumber lift in the rough mill was not protected by conduit or junction boxes.

b) Two motors, one for the glue roller and one for the lay-up table on the Bell glue machine, south end of the rough mill had wiring connections not in covered junction boxes.

c) Electric wiring and splices under the table of the Wallace 10 in. table saw in the sample area was not protected by conduit or junction boxes.

d) The open electric bulb on the Oakly horizontal belt grinder, Independent Stave Co.#211, located in the sanding department.

29 CFR 1910.309(a) Section 110-22, National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): Disconnecting means required by the National Electrical Code for motor and appliances, and each service, feeder or branch circuit at the point where it originated, not located and arranged so the purpose was evident, were not legibly marked to indicate their purpose:

There 12 various size switches located at the main electric breaker area of the rough mill not marked for what they controlled.

29 CFR 1910.309(a) Section 250-5(b)(1), National Electrical Code, NFPA 70- 1971, as adopted by 29 CFR 1910.309(a): The interior alternating current system(s) were not grounded where the system could be grounded so that the maximum voltage to ground on the ungrounded conductors would not exceed 150 volts:

The receptacle that the plug from the cold drink machine used to keep water cold for the glue spreader at the south end of the rough mill was plugged into, had reverse polarity.

29 CFR 1910.309(a) Section 250-45(d), national Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): Exposed, noncurrent-carrying metal parts of cord and plug-connected equipment which were liable to become energized, were not grounded:

a)The glue mixer, no identification, located by the panel flow glue machine at the west side of the rough mill did not have ground pin in the plug.

b)Poly Vend vending machine, S/N 6142, located at the raw material unloading dock, did not have ground pin in the plug.

c)The Halsey Taylor water cooler located by the time clock in rough mill did not have a ground pin in the plug.

d)The Balder Electric Co. lighted eye shield on the Sioux bench grinder located in the knife sharpening shop had the neutral pin and wire connected to case of light no apparent connection from the ground pin to the case.

e)The water cooler by the rest room in the truck maintenance shop did not have a ground pin in the plug.

29 CFR 1910.309(a) Section 400-4, National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(a): Flexible cord(s) were used in a prohibited manner, in that the cord(s) were used in a prohibited manner, in that the cord(s) were used a substitute for the fixed wiring of a structure:

a)Flexible cord and extension cord with total length approximately 30 feet that provides electric power to the flourescent light fixture above the Diehl self feed rip saw located at the west side of the rough mill.

b)The flexible cord for the time clock in the sanding department was plugged into receptacle through a hole in the wall.

c)The flexible cord to the 42 inch overhead mounted fan in the cabinet room.

d)The flexible cord used with the Better Pack 555 tape dispenser on the pack line.

29 CFR 1910.309(b) Section 110-12, National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(b): Electrical equipment was not installed in a neat and workmanlike manner:

a)The Greenlee #10 single surface planer located in the rough mill has electric conductors that enter the main switch that are not secured to it and conductors have had the outer sheath of cable removed for distance of 7 inches before they enter the switch.

b)The flexible conduit containing electric conductors is separated from the drive motor for the Greenlee #10 single surface planer located is the rough mill.

29 CFR 1910.309(b) Section 300-4, National Electrical Code, NFPA 70-1971, as adopted by 29 CFR 1910.309(b): Conductor(s) subject to physical damage were not adequately protected:

The 3 wires providing electric power to the motor for fan #3 to the Carter- Day dust collector were located only 77 inches over a pathway where person walk.

29 CFR 1910.309(b) Section 370-18(c), National Electrical Code, NFPA 70-1971 as adopted by 29 CFR 1910.309(b): Pull box(es), junction box(es) and fitting(s) were not provided with cover(s) approved for that purpose:

a)The junction box below the motor on the Oakly horizontal belt sander, Independent Stave Co. #211, located in the sanding department did not have a cover.

b)The junction box on the side of the winch motor located at the north side of the rough mill did not have a cover.

c)A cover was not provided where conductors were connected to wiring in a junction box on a motor of the unused old Bell glue machine to provide power to a
small glue spreader, near south end of the rough mill.

d)The 6 inch square junction box with taped connections in it and located on wall on south side of the gang rip saw in the rough mill did not have a cover.

e)The cover was missing from the junction box on the motor for the No. 4 Marion rip saw located at the east side of the rough mill.

f)The junction box on the side of the motor for the blower that blows dust from the finish mill cyclone to the dust collector by the furnace did not have a cover.

g)A cover was not provided on the junction box for the Salem sander #370 located in the sanding department.

h)The junction box on the motor for the Vonnigut head brush sander located in the sanding department did not have a cover.

i)The junction box on the electric motor of the home made dean sander located in the sanding department does not have a cover.

A preliminary hearing was held on a Motion to Quash Evidence because of alleged invalidity of the warrant. The respondent took the position that the warrant was illegal because it was assured ex parte. The respondent also took the position that the evidence introduced at the hearing in this cause on the Motion to Quash indicated the probably source of the complainant's information was untrustworthy and could be impeached. The respondent therefore requested permission to attempt to impeach the information submitted by the informer. It was the position of the respondent that, if the warrant was held valid, a wall-to-wall inspection was not proper and the warrant should have been restricted to those items enumerated in the affidavit filed in support of the warrant. It was further necessary, in the event a wall-to-wall inspection was held to be illegal, to determine whether the alleged violations not alleged in the application for the warrant, but apparent to the compliance officer while inspecting the items alleged in the warrant, could be incorpatored in a citation and complaint.

On November 25, 1980, an order issued holding as follows:

The Motion to Quash Evidence was denied as to allegations of violations which were alleged in the affidavit filed before the Magistrate. The Motion to Quash Evidence was denied as to alleged violations which were observed by complainant as a result of inspection of alleged violations alleged in the affidavit before the Magistrate. The Motion to Quash Evidence obtained as a result of the warrant was, in all other respects, granted.

On June 18, 1981, the parties filed a stipulation stipulating the record and the hearing. The stipulation provided as follows:

It was agreed that the Judge should enter his decision and order in accordance with the stipulation. The parties, however, specifically agreed that entering into the stipulation should not operate or be construed to waive the right of each to appeal any and all constitutional or legal issues material thereto and that each party reserved its right to appeal such issues. The respondent also reserved its right to request the administrative law judge to reconsider the rulings on respondent's Motion to Quash or suppress evidence in the light of the cases of Marshall v. Horn Seed Company, Inc., F.2d, (10th Cir. 1981), 9 BNA OSHC 1510, and Sarasota Concrete Company, OSHRC (No. 78-5264, April 27, 1981), 9 BNA OSHC 1979 CCH OSHD (P) 23,839.

It was stipulated that the following items or sub-items were those which had been quashed by said order of November 25, 1980, ruling on the Motion to Quash Evidence. It was agreed that the Judge should, subject to complainant's right to appeal that legal determination, vacate those items sub-items. It was agreed that the record should reflect that complainant had made a full and complete offer of proof and that the complainant, therefore, should be allowed to have a hearing on the merits of these items in the event that an appeal should reverse the Judge's ruling on the Motion to Quash the Evidence as to said items. Said items were stipulated to be as follows:


SERIOUS Citation No.1

Item No.                       Standard (29 CFR)

1                                  1910.23(c)(1)
11 a), b), and c             1910.212(a)(1)
12 a) and c)                  1910.212(a)(5)


Item No. Standard (29 CFR)
13 a) 1910.213(a)(12)
14 1910.213(b)(5)
15 b) 1910.213(b)(5)
17A c) 1910.213(h)(1)
21
22 1910.213(h)(1)
23 a) 1910.213(p)(4)
24A a), b), c), e), f), g), h), i) 1910.219(d)(1)
24C a), b), c), j), k), l), m), n), o), p), q), r), s), t), 1910.219(e)(3)(i)
25A k) 1910.219(f)(3)
26 1910.243(c)(3)
27 a), b), f), g), h), i) 1910.309(a) incorporating 119-17(a), NEC, NFPA70-1971
28A a), b), c), d), f), g), h) 1910.309(a) incorporating 250-42, N EC, N F P 70-1971
28B b), c) 1910.309(a) incorporating 250-43(c) NEC, NFPA
70-1971

 

Item No Standard (29 CFR)
29A a), b), c), e) f), g),
h), i), j), l),m), n), o)

1910.309(a), incorporating
250-45(d) NEC, NFPA
70-1971
29B 1910.309(a), incorporating
250-51 NEC, NFPA 70-
197t
29C 1910.215(a)(11)
30 1910.309(b) incorporating
210-21(b) NEC, NFPA
70-1971
32A 1910.309(b) incorporating
300-15(b)NEC, NFPA
70-1971


OTHER Citation No

Item No. Standard (29 CFR)
3 1910.22(a)(1)
4 1910.25(d)(1)(x)
5 1910.26(a)(iii)
6 1910.27(c)(1)
8 1910.106(b)(iv)(a)
10 1910.105(g)(3)(iii)
12 1910.110(h)(6)(i)(b)
13 1910.110(h)(6)(ii)(b)

 

Item No Standard (29 CFR)
14 1910.110(h)(12)
18 1910.176(g)
20a) 1910.178(p)(1)
22 1910.215(a)(4)
23 1910.25(b)(4)
24 1910.219(b)(1)
25 1910.219(h)(1)
26 b), e) 1910.242(b)
27 191.11.2 5 2(a)(2)(ii)(u)
28 1910.252(a)(2)(ii)(d)
29 1910.252(a)(2)(iv)(c)
30 c),d) 1910.309(a) incorporating
110-17(b) NEC, NFPA
70-1971 
33 b), d),e) 1910.309(a) incorporating
250-45(d) NEC, NFPA
70-1971
34 b), c), d) 1910.309(a) incorporating
400-4 NEC, NFPA
70-1971
36 1910.309(b) incorporating
300-1 NEC, NFPA
70-1971

 


Item No.
Standard (29 CFR)
37 a), f), g), h), i) 1910.309(b) incorporating
370 NEC, NFPA
70-1971 


It was agreed that the following items were not identified in the warrant application but were located in areas which were covered by the complaint and thus, within the compliance officer's plain view. As above stated, ruling has previously been made that these items may be cited and the evidence observed as to these items competent. The respondent does not waive its exception to this ruling. It is stipulated, however, that subject to the right of appeal as to this ruling the Judge should find said items in the citation have been established as violations. The items so affected are as follows:

Item No. Standard (29 CFR)
2A 1910.37(f)(1)
2B 1910.37(f)(2)
2C 1910.36(d)(2)
3A 1910.106(e)(2)(iv)(a)
3B 1910.106(e)(5)(i)
4A 1910.107(b)(7)
4B 1910.107(b)(6)
4C 1910.107(d)(3)
5 1910.107(c)(5)
5B 1910.107(c)(6)
6C 1910.107(c)(7)

 

Item No. Standard (29 CFR)
9 1910.107(e)(9)
12b)
1910.212(a)(5)


The parties agree that a penalty of $1000 is reasonable and appropriate on the above- listed Serious violations of the Act.

Also included in the above classification is Item Seven from Citation Two, 29 C.F.R. 1910.37(g)(2).

It was agreed that the following citation items relate to conditions in the finish mill area of the company's plant but not within the finish department. The respondent contends that these items should be excluded for the same reasons as set forth above. It is further agreed that these items were not within the plain view of the inspector while he was in the rough mill area and were not within his plain view while he was in the spring area which is also known as the finish department. The complainant contends that these items were a proper part of the inspection and violations as to said items should be found.

SERIOUS Citation No. 1

Item No. Standard (29 CFR)
15c) 1910.213(b)(6)
16A l910.2l3(c)(2)
16B 1910.213(c)(1)
16C 1910.213(c)(3)
17A b) 1910.2130(h)(1)

 

Item No Standard (29 CFR)
17B a) 1910.213(h)(3)
17C a) 1910.213(h)(4)
18A 1910.213(k)(1)
18B 1910.213(k)(2)
19, b), c), d) 1910.213(n)(1)
20 a), b), c), d) 1910.213(n)(3)
23b) 1910.213(r)(4)
24A d) 1910.219(d)(1)
24C g), h), i) 1910.219(c)(3)(i)


The parties agree that a penalty of $900 is reasonable and appropriate for the above-listed Serious violations of the Act.

OTHER Citation No. 2

Item No. Standard (29 CFR)
17A 1910.169(b)(3)(i)
17B 1910.169(b)(3)(ii)
21 1910.213(1)(6)
26 a) 1910.242(b)
28A c) 1910.309(a) incorporating 250-42NEC, NFPA 70-1971


It was agreed that the Judge had clearly overruled the employer's Motion to Quash as to the following items. The employer preserved its objection to the validity of the warrant as to those items, but it was agreed that subject to that objection, the Judge should make a finding of violation on the record as to said items:

SERIOUS Citation No. 1

Item No. Standard (29 (FR)
6A 1910.107(c)(6)
12d) 1910.212(a)(5)
13b) 1910.213(a)(12)
15a) 213(b)(6)
17A a) 1910.213(3)(b)(1)
17D 1910.213(g)(1)
24B 1910.219(c)(1)(i)
24C d), e), f) 1910.219(e)(3)(i)
25A a), b), c), d), e),
f), g), h), i), j)
1910.219(f)(3)
25B 1910.219(f)(1)
27 c), d), e), 1910.309(a) incorporating 110-
17(a) NEC, NFPA, 70-1971
28B a) 1910.309(a) incorporating
250-43(e) NEC,NFPA
70-1971
29A d), k) 1910.301)(A) incorporating
250-45(d) NEC, NFPA
70-1971 

 

No. Standard (29 CFR)
29D 1910.309(a) incorporating
1910-45(b) NEC, NFPA
70-1971
32B 1910.309(b) incorporating
370-18(c) NEC, NFPA
70-1971


The parties agree that a penalty of $1000 is reasonable and appropriate on the above-listed Serious violations of the Act.

OTHER Citation No. 2

Item No. Standard (29 CFR)
1 1903.2(a)(1) (no penalty to be imposed)
2 1904.2(a)
7A 1910.107(d)(2)
7B 1910.107 (g)(1)
8 1910.107(e)(2)
9 1910.106(e)(2)(ii)(b)(2)
9 1910.107(e)(9)
10 1910.107(g)(2)
11 1910.107(e)(5)
13 1910.134(b)(4)
16 1910.134(b)(6)
19 1910.178(e)(1)

 

Item No. Standard (29 CFR)
20 b), e), d) 1910.1168(P)(1)
30 a), b) 1910.309(a) incorporating
110-17(b), NEC, NFPA
31 1910.309(a) incorporating
110-22, NEC NFPA 70-1971
31 1910.309(b) incorporating
300-4, NEC, NFPA 70-1971
32 1910.309(a) incorporating
250-45(b)(1)
33 a), c) 1910.309(a) incorporating
250-45(d)
34 a) 1910.309(a) incorporating
400-4
35 1910.31190) incorporating
110-12
37 b), c), d), e) 1910.309(b) incorporating
370-18(c)


Also subject to the entry of a decision and order consistent with the agreement, the parties agreed and stipulated that the abatement date should be extended to September 1, 1981, with respect to the following items or sub-items and as to all other items the abatement date will be 15 days after service of the decision.

SERIOUS Citation No. 1

Item No. Standard (29 CFR)
28A 1910.309(a) incorporating
250-42 NEC, NFPA 70-1971
28B 1910.309(a) incorporating
250-43 NEC, NFPA 70-1971
29A 1910.309(a) incorporating
250-45(d) NEC, NFPA
70-1971
29B 1910.309(a) incorporating
250-51 NEC, NFPA 70-1971
29C 1910.213(a)(11)
29D 1910.309(a) incorporating
250-45(b) NEC9 NFPA
70-1971
30 1910.309(a) incorporating
210-21(b) NEC, NFPA
70-1971

OTHER Citation No. 2

Item No. Standard (29 CFR)
30 1919.309(a) incorporating
110-17(b) NEC, NFPA
70-1971



Item No. Standard (29 CFR)
31 1910.309(b) incorporating
300-4 NEC, NFPA 70-1971
33 1910.309(a) incorporating
250-45(d) NEC, NFPA
70-1971
35 1910.309M incorporating
110-12 NEC, NFPA 70-4971


It was further stipulated that the various pleadings filed with the Review Commission, the record of the proceeding on the preliminary hearing on the warrant which was held on October 6, 1980, the transcript and exhibits offered and received at that time, and said stipulation should be included in the record of this cause and no evidence shall be required to establish or vacate the citations as set forth therein.

It was stated that there was no authorized representative of employees affected by items cited and that the agreement has been, on June 9, 1961, posted for the benefit of unrepresented employees as required by the rules of the Occupational Safety and Health Review Commission.

In view of said stipulation of the parties, the determinative issues in this case hinge upon the ruling of the Judge with reference to the validity of the inspection warrant. As above set forth, an order has previously been entered with reference to this question. The respondent, however, requested reconsideration of this order in the light of the decision in the case of Marshall v. Horn Seed Company, Inc., supra, and Sarasota Concrete Company, supra.

It is admitted that the respondent maintains a furniture manufacturing plant at Harrison, Arkansas and that it is engaged in a business affecting interstate commerce.

A complaint alleging numerous.violations was filed with complainant by a former employee of respondent. Complainant, therefore, through compliance Officer Jerry D. Loux, attempted to inspect the respondent's premises on October 30, 1979. He conferred with the chief executive officer of the company at Harrison, Arkansas, Mr. Lee, and asked his permission to make the inspection. Mr. Lee, after contacting company officials in Missouri and the company attorney, advised Mr. Loux that the company desired not to waive its rights under the Fourth Amendment and not to permit a search without a warrant. Mr. Loux conferred with respondent's attorney, Mr. Jones, and Mr. Jones stated that if complainant was going to seek a warrant, the respondent would like to be notified of the time and place the application would be presented, so that the respondent could appear and resist the request for the warrant. The complainant proceeded to request a warrant from United States Magistrate Ned Stewart at Ft. Smith, Arkansas. No notice was given to the respondent, and the warrant was granted ex parte. In support of the request for the warrant, an affidavit executed by Mr. Loux was filed with the magistrate (Exh. R-3 in this hearing).

The affidavit stated in part "the facts tending to establish grounds for issuance of the inspection warrant are as follows: a written complaint from a former employee was received on October 29, 1979, alleging the following:". After the above statement, 22 alleged unsafe conditions are set forth. Following the enumeration of the alleged unsafe conditions, there is a statement of the standards under the Occupational Safety and Health Act which are allegedly violated.

Pursuant to the warrant being issued, an inspection of the respondent's entire premises was made and a citation issued alleging violations, not only of the matters; set forth in the affidavit filed in support of the warrant, but also as to numerous other alleged violations of the respondent's plant.

The respondent maintains that the search was invalid for several reasons. It is contended that the respondent was entitled to be present at the time the application for the warrant was made and that an ex parte warrant is not legal. It is insisted by the respondent that the affidavit is not adequate, in that the affiant did not personally confer with the complaining party, the source of the complaining person's information is not set forth, and there are inadequate supporting facts recited in the affidavit to justify a warrant being based thereon. It is further the contention of the respondent that the evidence adduced at the hearing in this cause of the motion to quash evidence, indicates that the probable source of the affiant's information  was untrustworthy and can be impeached.

It is further the position of the respondent that, if it is held that the warrant is valid, a wall to wall inspection is not proper and the warrant should have restricted inspection to those items enumerated in the affidavit supporting the application for the warrant. In the event it is held that a wall to wall inspection should not have been made the issue must further be decided as to whether the citation should contain alleged violations the compliance officer could not help but see while inspecting the alleged violations set forth in the affidavit.

While these issues were decided in the order of November 25, 1980, reconsideration of this order has been requested and the parties, by their stipulation have agreed that the ultimate decision in this case hinges upon the ruling as to the inspection warrant. So that this decision may reflect a complete ruling on the issues posed, parts of the decision of November 25, 1980, will be restated in this order.

The law is in serious conflict as to whether an ex parte warrant may issue. The Occupational Safety and Health Review Commission has not decided this issue, and the Circuit Courts of Appeals are in conflict.

In the case of Marshall v. Barlow's Inc.,436 U.S. 307, 56 L. Ed. 2d 305, 6 OSHC 1671 (1978), the Supreme Court of the United States held that an employer could require that warrant be obtained.

Following the Barlow's case the Secretary issued an interpretive rule providing for ex parte warrants. It is the contention of the respondent that the action of the Secretary in this regard was the issuance of a regulation rather than an interpretive rule and, in view of the fact that the procedures required for issuance.of a regulation were not conformed to, the regulation was not valid. Tree Circuit Courts of Appeals would appear to have held that the action of the Secretary was the issuance of an interpretive rule, although the Third Circuit Court of Appeals elected not to follow the interpretative rule.

A regulation, if properly promulgated, and constitutional, must be enforced by the courts. Interpretative rules however, do not have the force of law. Although courts often defer to an agency's interpretative rule, they are always free to choose otherwise. In the case of Cerro Metal Products Division of Marmon Group, Inc., v. Marshall 621 F.2d 961, 8 OSHC 1193 (3rd Cir. 1980), the court held that the position of the Secretary had not always been consistent. The Court of Appeals was further of the opinion that dictum of the Supreme Court in the Barlow case the interpretative rule was an erroneous interpretation and that the court would not follow it.

However, the United States Court at Appeals for the Tenth Circuit in the case of Marshall v. W & W Steel Company, Inc., 604 F.2d 1332 (1979), said "we agree with the Secretary that 29 CFR 1903.4(d) was an interpretative rule whereby the term 'compulsory process' was defined to include ex parte warrants. Such being the case, the 1978 amendment, section 1903.4(d), was effective and in force on the date when the warrant issued in the present case."

In the case of Marshall v. Shellcast Corp., 592 F.2d 1369 (5th Cir., 1979), the court held that the district court had no jurisdiction to consider complaints filed by the Secretary of Labor seeking injunctions to compel obedience of inspection warrant, issued pursuant to the Occupational Safety and Health Act. In so deceting, the court stated:

Moreover, it seems likely that Congress, desiring an enforcement scheme based on surprise and undelayed searches, would very much prefer immediate execution of duly issued ex parte warrants to the litigation intent delays urged on us by the search-shy Secretary in this case. By denying jurisdiction for injunctive suits initiated by the Secretary, Congress postpones and reduces the adversary litigation that otherwise might undermine the efficient and speedy implementation of the Act.

It will be seen from the above that there is a substantial conflict between the courts.

While the courts differ as to whether an ex parte warrant is legal, it would appear that the greater weight of authority is to the effect that an ex parte warrant may issue. The United States Court of Appeals for the Fifth Circuit that authority and the United States Court of Appeals for the Tenth Circuit expressly upholds.

It is the further position of the respondent that the affidavit of the compliance officer in support of the request for issuance of a warrant does not adequately state grounds for a warrant to issue. In the hearing in this case on the issue of the warrant, the respondent also introduced evidence for the purpose of establishing that the person the respondent suspected of being the informant was not a credible witness.

As above stated, the affidavit in support of the request for issuance or a warrant, contained the following language: "The facts tending to establish grounds for issuance of the inspection warrant are as follows: a written complaint from a former employee was received on October 29, 1979, alleging the following:". Said affidavit listed 22 alleged unsafe conditions, following which the affidavit set forth the standards alleged to be violated.

The respondent takes the position that since the affiant did not personally talk to the informant; and, since the basis of the informant's knowledge is not set forth in the affidavit, the affidavit is inadequate. The respondent further takes the position that the person the respondent suspects of being the informant is untrustworthy and made the charges because said employee had a supposed grievance against the respondent. It is primarily on this question of the adequacy of the affidavit and the right to impeach the affiant that the request for reconsideration was submitted. The respondent issued said request primarily based upon the case. of Marshall v. Horn Seed Company, supra Said decision does appear to sustain the position of the respondent. In said case, the Court said:

These safegaurds are not built in when a search is based on a specific complaint. In such instances, the government is not inspecting on the basis of neutral criteria derived from reasonable legislative or administrative standards. Unless it is possible to infer that the complaint was actually made and that it has some modicum of plausibility to it, the danger of arbitrary invasions by government officials exist. There are no administrative or legislative guidelines assuring us that the target was not chosen for purposes of harassment. An administrative warrant application based upon specific evidence is more analogous to an application for a criminal search warrant than to an application for a search warrant under the regulatory scheme. Without some sort of scrutiny of the reliability of the 'specific evidence' serving as probable cause for an OSHA warrant, no real assessment of the need to search can be made. Absent a true balancing of that need against 'the invasion which the search entails', Camara, 387 U. S. 537, we would have no assurance that the search is reasonable and consequently, that the Fourth Amendment's basic purpose had been met...

Tested by these standards, the warrant application in this case did not supply probable cause for search. At the contempt proceedings, compliance officer Gann explained the circumstances behind the statements made in her affidavit. She indicated that she had not received initial telephone complaints, nor was she sure who had. While she testified that OSHA complaint forms were completed, signed and returned by the complainant, these were not given to the Judge who issued the warrant. Nor was the Judge informed that the complainants were employees, or that their status as employees had been verified. The affidavit simply stated the complaints were received and described the conditions alleged to be unsafe and unhealthful. In ruling on the validity of a search warrant, the reviewing court may only consider the information provided the issuing Magistrate or Judge. Spinelli, 393 U.S. 413 N.3 (Criminal search warrant). "We therefore affirmed the decision of the District Court quashing the warrant and dismissing the contempt proceedings."

The United States Court of Appeals; for the Seventh Circuit, however, in the case of Matter of Establishment inspection, Etc., 589 F.2d 1335 (7th Cir. 1979), held to the contrary. The Court said:

The Barlow's court quite clearly held that 'probable cause in the criminal --pose is not required'. . .

***

Camara and Barlow's do not require that the warrant application set forth the underlying circumstances demonstrating the basis for the conclusion reached by the complainant, or that the underlying circumstances demonstrate a reason to believe that the complainant is a creditable person. Nor is there a requirement that the application request be supplemented with a detailed, signed, employee complaint. Complainant's names may be deleted from complaints in order to protect them from employer harassment. . .

Here the Secretary's sworn application detailing the employees complaint and indicating the basis for concluding that potentially significant hazards to workers were alleged by it, afforded the Magistrate sufficient factual data to conclude that a search was reasonable and that a warrant should issue...

***

Discovery decisions are committed to the sound discretion of the District Judge, and they may not be easily reversed on appeal. In the instant case the warrant application, which referred to an 'employee complaint' incorporated the sworn affidavit of an OSHA compliance officer. The District Judge could correctly assume, therefore, that the information contained therein was true and correct. Because this information was adequate on its face to establish probable cause, there was no need to pursue further discovery, and the Judge acted properly in not granting such relief. Indeed, the employee's identity was not even discoverable in this proceeding.

Neither party has cited a decision of the Review Commission determining this question. The case arose within the jurisdiction of the United States Court of Appeals for the Eighth Circuit and therefore, neither the decision of the Court of Appeals for the Tenth Circuit nor the decision of the Court of Appeals for the Seventh Circuit is binding in this case. It is incumbent upon this Judge, therefore, to determine whether the reasoning of the Tenth Circuit or the reasoning of the Seventh Circuit is more logical on this point. It would appear that the reasoning of the United States Court of Appeals for the Seventh Circuit is the sounder exposition of the law.

The purpose of requiring a warrant is to prevent the government from making harassing inspections without reasonable cause to believe the Inspection necessary. It cannot be said that the information supplied by the charging party did not give reasonable cause for an inspection. It does not follow that because an inspection is made, a citation will issue. If the allegations of violation are found by the inspection to be unsustainable, the complainant can refuse to issue a citation. An allegation of unsafe conditions by one in a position to have observed the conditions not only justifies but requires an inspection to determine if such allegations justify a trial. 'The respondent is protected against a harassing trial by a disgruntled employee by the fact that only the government, not the employee, may bring the question to trial.
The respondent contends that the person believed to have made the complaint feels a grievance against the respondent and the charges were made because of this supposed grievance. Even if it was proven that such a supposed grievance existed, and but for the grievance, the charge would not have been filed, such fact does not prove that the charges are without foundation and that an unsafe condition does not exist. The issue is not the motive of the charging party but whether the law has been violated. A person can know a violation existed but not bestir himself to complain until he decides to do so out of spite. That would not make the charge groundless. The only way for the government to determine whether the charge is groundless is to look and see. It is not necessary that the charge be true to justify an inspection, but there must be reason for the complainant to believe that the charge could be true. The fact that the complainant, after inspection, concluded that a substantial number of violations existed, is evidence that the charges were not entirely frivolous. Of course, in the absence of a stipulation such as filed in this case, whether such a conclusion of OSHA is correct is determined after a hearing at which evidence on all sides is heard. The allegations of violation.furnished by the informer, regardless of his motive, are sufficient to justify complainant in finding out whether a violation has occurred.

To require in every case a full blown trial on the motives or the informer before an inspection can be made would be to defeat the purpose of the Act, and would not answer the question of the validity of the charges.

The respondent is accorded a full day in court. A citation issued respondent is completely heard and, in the event of an adverse decision, respondent has the right of appeal, not only to the Review Commission but also to the appellate courts.

The request to reconsider said ruling is, therefore, denied.

The question remains as to whether the complainant was entitled to a broader inspection of the premises of the respondent than those covered by the allegations set forth in the affidavit of the compliance officer filed with the Magistrate. There is also a conflict of authority among the Circuit Courts of Appeals as to this question and apparently, the Occupational Safety and Health Review Commission has not rendered a decision determining this question.

The United States Court of Appeals for the Seventh Circuit in the case of Burkart Randall Division of Textron, lnc. v. Marshall 8 OSHC 1467 ___ F.2d ___ (May 27, 1980) held that notwithstanding the fact the inspection warrant was issued as a result of an employee complaint, a warrant may issue authorizing a wall-to-wall inspection. The court stated "our examination of these competing positions and of the policies underlying the Act and the warrant requirement, convinces us that the better view is that which permits, absent extraordinary circumstances, general inspections and response to employee complaints".

On the other hand, the United States Court of Appeals for the Third Circuit in the case of Marshall v. North American Car Company, 8 OSHC 1722 ___ F.2d (July 24, 1980), stated "we hold that where an OSHA inspection is conducted under section 8(f) pursuant to an employee complaint, the scope of the inspection must bear an appropriate relationship to the violations alleged in the complaint".

This case arises within the jurisdiction of the United States Court of Appeals for the Eighth Circuit. In the case of Central Mine Equipment Company, 7 OSHC 1907, 608 F.2d 710 (8th Cir. November 5, 1979), an attack on the validity of the warrant was made in the United States District Court. The respondent took the position that an inspection warrant could not authorize inspection of areas of the plant that were not alleged by the affidavit before the Magistrate to be in violation of the Act. The Court of Appeals held that the issue was one that should have been presented to the Occupational Safety and Health Review Commission and not to the District Court. The court, however, in a footnote, page 720, stated as follows:

The Secretary's position would appear to be a tenuous one. Although Marshall v. Barlow's Inc., 436 U.S. 307 (6 OSHC 1571)(1978), which requires warrants for OSHA inspections made pursuant to a general administrative plan derived from neutral criteria, indicated that full-scale searches may be made without specific knowledge of existing violations, this does not necessarily authorize wall-to-wall inspections that are non-routine responses to individual complaints. The reasonableness of a search is dependent on the balance between 'the need for the intrusion on the one hand, and the threat of disruption to the occupant on the other.' Michigan v. Tyler, 436 U.S. 499, 507 (1978). In striking that balance, the magistrate who issues a search warrant must 'perform the important function of preventing harassment by keeping that invasion (of the subject's privacy) to a minimum.' Id. at 508. The performance of that function may require a more particularized inquiry' in the context of non-routine investigatory searches than in the case of routine inspections, which are made under 'guidelines specifying the purpose, frequency, scope and manner of conducting the inspections.' Id., at 507. Many factors, including the scope of the search, are relevant in determining the
reasonableness of the non-routine inspection. Id. Michigan v. Tyler, therefore, appears to require that an OSHA search made pursuant to a specific report of a violation be no more than intrusive than necessary to investigate that violation. In cases such as this, in which the work place is large and compartmentalized, the geographic scope of the inspection may be limited without rejection or diminution of the government's legitimate interest in correcting the alleged violation; in other cases, a meaningful limitation on the scope of the search will be more difficult to devise." See, e.g., Matter of Establishment Inspection, Etc., 589 F.2d 1335, (6 OSHA 2151) (7th Cir. 1979), cert. denied, 48 U.S.L.W. 3222 (U.S. Oct. 1, 1979) (No. 78-1852.)

It is true that the above language is legal dictum as the court held that the case turned on other points. The court, however, went out of its way to express its views as to whether a warrant authorizing a wall to wall inspection would issue under circumstances similar to that existing in the case at bar. This language of the court, being legal dictum, is not binding on this Judge but is very persuasive. The law being in an uncertain state as a result of conflicts between the Circuit Courts of Appeals, a definite statement of the view of the Court of Appeals having jurisdiction over the area in which this case arose, is extremely relevant in reaching a decision on this issue.

This issue appears to have been laid to rest by the Occupational Safety and Health Review Commission in the case of Sarasota Concrete Company, supra. In said case, the Review Commission said:

A plantwide inspection is usually permissible when probable cause is established upon a general administrative plan. In complaint situations, however, an inspection beyond the scope of the alleged violation is not permissible where the Secretary can determine the precise location of the alleged violation. This position is consistent with 'the notion inherent in the Fourth Amendment that the scope of a warrant shall be tailored to the showing of probable cause'.

In this case, the hazard alleged in Storey's complaint - - defective concrete trucks - - was located in a discrete area of respondent's facilities. Based on the record, we conclude that the Secretary did not possess additional facts to justify the conclusion that an inspection of respondent's entire facility was reasonable to insure that the safety and health of respondent's employees would not be jeopardized. The inspection should have been limited to the alleged violations noted in Storey's complaint. In light of the supporting facts, this limited inspection would have been reasonable. Instead the compliance officer inspected respondent's entire facility and the Secretary issued the citation for i2 other than serious violations, all unrelated to respondent's trucks. The Secretary presented no evidence to the Magistrate other than the employee complaint. Accordingly, we find that the Secretary violated the Fourth Amendment by exceeding the permissible scope of inspection because only a search related to the trucks was supportable by probable cause.

The prior holding of this Judge that a wall-to-wall inspection was not properly authorized is, therefore, herein reiterated.

The issue remains as to whether the inspection was proper as to items not included in the affidavit attached to the warrant application but which were apparent to the compliance officer while inspecting those items alleged in said affidavit. In the case of Sarasota Concrete Company, supra, the Review Commission in a footnote expressly stated that this point was not reached. The case of Central Mining Equipment Company, supra, however, would indicate that a citation could include such items. It will be observed that in the quoted footnote, the Court states:

"In cases such as this case, in which the workplace is large and compartmentalized, the geographic scope of the inspection may be limited without rejection or diminution of the government's legitimate interest in correcting the alleged violations; in other cases a meaningful limitation on the scope of the search will be more difficult to devise."

It therefore appears that evidence of violations not alleged in the application for the warrant, but which are discovered as a result of inspection of said application's alleged violations were properly included in the citation and complaint. The ruling in the order of November 25, 1980 so holding is, therefore, here reiterated.

Section IV of the Stipulation List a number of standards which it is agreed are in the Finnish Mill area. It is stated that the complainant contends the Judge overruled respondent's Motion as to those items. The complainant apparently has misinterpreted the Judge's ruling in this regard. The stipulation states that the items were not within the plain view of the inspector. If the compliance officer had to search beyond the items mentioned when the warrant was secured in order to find a violation, such search was illegal regardless of whether such violation was in the same building or in another. The allegations as to all such items must therefore be dismissed.

FINDINGS OF FACT

1. Respondent maintains a furniture manufacturing plant at Harrison, Arkansas, where it purchases raw material, equipment and supplies and sells finished products which cross state lines.

2. The facts set forth in said stipulation of the parties stipulating the record are affirmed and are made findings of fact in this decision.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. All ex-parte inspection warrant is legally issued, it not being necessary to accord the respondent an opportunity to appear and oppose same.

3. An inspection warrant based upon a complaint must be restricted to those items set forth in the complaint, and items observable without search at the places

alleged the complaining party, and a wall-to-wall inspection is not properly authorized.

4. The citation can properly issue, based upon alleged violations which are not alleged in the charges filed before a Magistrate issuing a warrant, but which are apparent to the person making the inspection from his inspection of those items which are alleged to be a violation in the hearing of the application for the warrant.

7). The respondent was, on or about November 7,1979, to December 31, 1979, in violation of the following standards:

SERIOUS Citation No. I

Item No. Standard (29 CFR)
2A 1910.37(f)(1)
2B 1910.37(f)(2)
2C 1910.36(d)(2)
3A 1910.106(e)(2)(iv)(a)
3B 1910.106(e)(5)(1)
4A 1910.I07(b)(7)
4B 1910.107(b)(6)
4C 1910.107(d)(3)
5 1910.107(c)(5)
6 A 1910.107(c)(6)
6B 1910.107(c)(6)
6C 1910.107(c)(7)

 

Item No. Standard (29 CFR)
15(c) 1910.213(b)(6)
16A 1910.213(c)(2)
16B 1910.213(c)(1)
16C 1910.213(c)(3)
17A b) 1910.213(h)(1)
17B a) 1910.213(h)(3)
17C a) 1910.213(h)(4)
18 A 1910.213(k)(1)
18B 1910.213(k)(2)
19 a), b), c), d) 1910.213(n)(1)
20 a), b), c), d) 1910.213(n)(3)
23 A 1910.213(r)(4)
24A, d) 1910.219(d)(l)
24C a), b), c) 1910.219(o)(3)(i)

OTHER Citation No. 2

Item No. Standard (29 CFR)
1 1903.2(a)(1) (no penalty to
be imposed)
2 1904.2(a)
7 1910.37(g)(2)
7A 1910.107(d)(2)
7B 1910.107(g)(1)
8 1910.107(e)(2)

 

Item No. Standard (29 C Pit)
9 1910.106(e)(2)(ii)(b)(2))
9 1910.107(e)(9)
10 1910.107(g)(2)
11 1910.107(e)(5)
12d) 19l0.212(a)(5)
13b) 1910.213(a)(I2)
15 1910.134(b)(4)
15 a) 213(b)(6)
16 1910.134(b)(6)
17A 1910.169(b)(3)(i)
17A a) 1910.213(h)(1)
17B 1910.l69(b)(3)(ii)
17D 1910.213(g)(1)
19 1910.l78(e)(1)
20 b), c), d) 1910.178(g)(t)
21 1910.213(l)(6)
24B 1910.219(e)(l)(i)
24C d), e), f) 1910.219(e)(3)(i)
25A a), b), c), d), e)
f), g), h), i), j)
1910.219(f)(3)
25B 1910.219(f)(1)
26a) 1910.24(b)

 

Item No.. Standard (29 CFR)
27 c), d), e) 1910.309(a) incorporating
110-17(a), NEC, NFPA
70-1971
28A e) 1910-309(a) incorporating
250-42, NEC, NFPA
70-1971
28A d), k) 191O.309(a) incorporating
250-45(d), NEC, NFPA
70-1971
28B a) 1910.309(a) incorporating
250-43(c), NEC, NFPA
70-1971
29A d), k) 1910.309(a) incorporating
250-45(d)t NEC, NFPA
70-1971
29D 1910.309(a) incorporating
250-45(b)v NEC, NFPA
70-1971
30 a), b) 1910.309(a) incorporating
110-17(b), NEC, NFPA
70-1971 (Sept. 1, 1981)
31 1910.309(a) incorporating
110-22, NEC, NFPA
70-1971


Item No. Standard (29 CPR)
31 1910.309(b) incorporating
300-4, NEC, NFPA
70-1971
32 1910.309(a) incorporating
250-5(b)(1)
32B 1910.309(b) incorporating
370-18(c), NEC, NFPA
70-1971
33 a), c) 1910.309(a) incorporating
250-45(d) (Sept. 1, 1981)
34 a) 1910.309(a) incorporating
400-4
35 1910.309(b) incorporating
110-12 (Sept. 1, 1981)
37 b), c), d), e) 1910.309(b) incorporating
370-18(c)


The allegations of violation have. not been sustained as to the following standards:

Item No. Standard (29 CFR)
1 1910.23(c)(1)
11 a), b), c) 1910.212(a)(1)
12 a) and c) 1910.212(a)(5)
13 a) 1910.213(a)(12)
14 1910.213(b)(5)

 

Item No. Standard (29 CFR)
15 b) 1910.213(b0(6)
17A e) 1910.213(h)(1)
17B b) 1910.213(h)(3)
17C b) 1910.213(h)(4)
18 1910.176(g)
21 1910.213(p)(4)
22 1910.213(q)(2)
23 a) 1910.213(r)(4)
24A a), b), c), e),
f), g), h) i)
1910.219(d)(l)
24C a), b), c), j), k),
l), m), n), o), p)
q), r), s), t)
1910.219(e)(3)(i)
25A k) 1910.219(f)(3)
26 1910.243(c)(3)
27 a), b), f,) g), h), i) 1910.309(a) incorporating
110-17(a), NEC. NFPA
70-1971
28A a), b), c), d),
f), g), h)
1910.309(a) incorporating
250-42, NEC, NFPA
70-1971
28B b), c) 1910.309(a) incorporating
250-43(c), NEC, NFPA
70-1971






Item No. Standard (29 CFR)
29A a), b), c), e), f),
g), h), i), j), l),
m), n), o)
1910.309(a) incorporating
250-45(d), NEC, NFPA
70-1971
29B 1910.309(a) incorporating
250-91, NEC, NFPA
70-1971
29C 1910.213(a)(ii)
30 1910.309(b) incorporating
210-21(b), NEC, NFPA
70-1971
32A 1910.300(b) incorporating
300-15(b), NEC, NFPA
70-1971

OTHER Citation No. 2

Item No. Standard (29 CFR)
3 1910.22(a)(1)
4 19lO.25(d)(1)(x)
5 1910.26(a)(1)(iii)
6 1910.27(c)(1)
8 1910.lO6(bX3XivXa)
10 1910.106(g)(3)(iii)
12 1910.110(h)(6)(i)(b)
13 1910.110(h)(6)(ii)(b)



Item No. Standard (29 CFR)
14 1910.110(h)(I2)
20 a) 1910.178(p)(1)
22 1910.215(a)(4)
23 1910.215(b)(9)
24 1910.219(b)(1)
25 1910.219(h)(1)
26 b), c) 1910.242(b)
27 1910.252(a)(2)(ii)(b)
28 1910.252(a)(2)(ii)(d)
29 1910.252(a)(2)(iv)(c)
30 c), d) 1910.309(a) incorporating
110-17(b), NEC, NFPA
70-1971
33 b), d), e) 1910.309(a) incorporating
{250-45(d), NEC, NFPA
70-1971
34 b), c), d) 1910.309(a) incorporating
400-4, NEC, NFPA 70-1971
36 1910.309(b) incorporating
300-4, NEC, NFPA
70-1971
37 a), f), g), h), i) 1910.309(b) incorporating
370-18(c), NEC, NFPA
70-1971


ORDER

It is therefore ordered that:

The abatement date shall be September 1, 1981, as to those items opposite which said date is set forth below. All other items shall be abated within 15 days of the date of receipt of the decision.

1. Respondent was, on or about November 7, 1979, to December 31, 1979, in violation of the following standards: (SERIOUS Citation No. 1)

Item No. Standard (29 CFR)
2A 1910.37(f)(1)
2B 1910.37(f)(2)
2C 1910.36(d)(2)
3A 1910.106(e)(2)(iv)(a)
3B 1910.106(e)(5)(i)
15c) 1910.213(b)(6)
16A 1910.213(c)(2)
16B 1910.213(c)(1)
16C 1910.213(c)(3)
17A b) 1910.213(h)(1)
17 B a) 1910.213(h)(3)
17C a) 1910.213(h)(4)
18 A 1910.213(k)(1)
18B 1910.213(k)(2)
19 a), b), c), d) 1910.213(n)(1)
20 a), b), c), d) 1910.213(n)(3)

 

Item No. Standard (29 CFR)
23 b) 1910.213(r)(4)
24A d) 1910.219(d)(1)
24C g), h), i) 1910.219(e)(3)(i)


A penalty in the amount of $900 is assessed for all of said violations.

2. Respondent was, on or about November 7, 1979, to December 31, 1979, in violation of the following standards: (SERIOUS Citation No. 1)

Item No. Standard (29 CFR)
6A 1910.107(c)(6)
12 d) 1910.212(a)(5)
13 b) 1910.213(a)(I2)
15 a) 213(b)(6)
17 A a) 1910.213(h)(1)
17D 1910.213(g)(1)
24B 1910.219(e)(1)(i)
24C d), e), f) 1910.219(e)(3)(i)
25A a), b), c), d), e),
f) g), h), i) j)
1910.219(f)(3)
25B 1910.219(f)(1)
27 c), d), e) 1910.309(a) incorporating 110-
17(a) NEC, NFPA, 70-1971
28B a) 1910.309(a) incorporating
250-43(c) NEC, NFPA
70-1971 


Item No. Standard (29 CPR)
29A d), k) 1910.309(a) incorporating
250-45(d) NEC, NFPA
70-1971
29D 1910.309(a) incorporating
250-45(b) NEC, NFPA
70-1971
32B 1910.309(b) incorporating
370-18(c) NEC, NFPA
73-1971


A penalty in the amount of $1,000 is assessed for all of said violations.

3. The respondent was, on or about November 7, 1979, to December 31, 19791, in violation of the following standards:

OTHER Citation No. 2

Item No. Standard (29 CFR)
17A 1910.169(b)(3)(i)
17B 1910.169(b)(3)(ii)
21 1910.213(1)(6)
26 a) 1910.242(b)
1 1903.2(a)(1) (no penalty
to be imposed)
2 1904.2(a)
7A 1910.107(d)(2)
7B 1910.107(g)(1)


Item No. Standard (29 CFR)
8 1910.107(e)(2)
9 1910-106(e)(2)(11)(b)(2)
10 1910.107(g)(2)
11 1910.107(e)(5)
15 1910.134(b)(4)
16 1910.l34(b)(6)
19 1910.178(e)(1)
20 b), c), d) 1910.178(p)(1)
22A e) 1910.309(a) incorporating
250-429 NEC, NFPA
70-1971 (Sept. 1, 1981)
30 a), b) 1910.309(a) incorporating
110-17(b) NEC, NFPA
70-1971
31 1910-309(a) incorporating
110-22 NEC, NFPA 70-1971
(Sept. 1, 1981)
31 1910.309(b) incorporating
300-4 NEC, NFPA 70-1971
32 1910.309(a) incorporating
250-5(b)(1)
33 a), c) 1910.399(a) incorporating
250-45(d)

 

Item No. Standard (29 CFR)
34 a) 1910.309(a) incorporating
400-4
35 1910.309(b) incorporating
110-12
37 b), c), d), e) 1910.309(b) incorporating
370-18(c)


No penalty is assessed for said violations.

4. The allegations of violation of the following standards are dismissed: SERIOUS Citation No. 1

Item  No. Standard (29 CFR)
1 1910.23(c)(1)
11 a), b), and c) 1910.212(a)(1)
12 a) and c) 1910.212(a)(5)
13 a) 1910-213(a)(12)
14 1910.213(b)(5)
15 b) 1910.213(b)(6)
17A c 1910.213(h)(t)
17B b) 1910.213(h)(3)
17C b) 1910.213(h)(4)
21 1910.213(p)(4)
22 1910.213(q)(2)
23 a) 1910.219(r)(4)
24A a), b), c), e, f),
g) h), i) 
1910-219(d)(1)





Item No. Standard (29 CFR)
24C a), b), c), j), k),
l), m), n), o), p),
q), r), s), t)
1910.219(e)(3)(i)
25A k) 1910.219(f)(3)
26 1910.243(c)(3)
27 a), b), f), g), h) i) 1910.309(a)incorporating
110-17(a), NEC, NFPA
70-1971
28A a), b), c, d), f)
g), h)
1910.309(a) incorporating
250-42, NEC, NFPA
70-1971
28B b), c) 1910.309(a) incorporating
250-43(c) NEC, NFPA
70-1971
29A a), b), c), e)
f), g), h), i) j),
l), m), n), o)
1910.309(a), incorporating
250-45(d) NEC, NFPA
70-1971
29R 1910.309(a), incorporating
250-51 NEC, NFPA 70-
1971 (Sept. 1, 1981
29C 1910.215(a)(ll)
30 1910.309(b) incorporating
210-21(b) NEC, NFPA
7G-1971


Item No. Standard (29 CFR)
32A 1910.309(b) incorporation
300-15(b) NEC, NFPA
70-1971

 

OTHER Citation No. 2

Item No. Standard (29 CFR)
3 1910.22(a)(1)
4 1910.25(d(1)(x)
5 1910.26(a)(l)(iii)
6 1910.27(c)(1)
8 1910.106(b)(3)(iv)(a)
10 1910.106(g)(iii)
12 1910.110(h)(6)(i)(b)
13 1910.110(h)(6)(ii)(b)
14 1910.110(h)(12)
18 1910.176(g)
20 a) 1910.178(p)(1)
22 1919.215(1)(4)
23 1910.215(b)(9)
24 1910.219(b)(1)
25 1910.219(h)(1)
26 b), c) 1910.242(b)
27 1910.252(a)(2)(ii)(b)
28 1910.252(a)(2)(ii)(d)


Item No. Standard (29 CFR)
29 1910.252(a)(2)(iv)(c)
30 c), d) 1910.309(a) incorporating
110-17(b) NEC, NFPA
70-1971
33 b), d), e) 1910.309(a) incorporating
250-45(d) NEC, NFPA
70-1971
34 b), c), d) 1910.309(a) incorporating
400-4 NEC, NFPA 70-1971
36 1910.309(b) incorporating
300-4 NEC, NFPA 70-1971
37 a), f), g), h), i) 1910.309(b) incorporating
370-18(e) NEC, NFPA
70-1971


Dated this 3rd day of September, 1981.


JOHN S. PATTON
Judge

 

 

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.