SECRETARY OF LABOR,

Complainant,

v.

SMITH STEEL CASTING CO.,
Respondent.

OSHRC Docket Nos. 80-2069 and 80-2322

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), 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).

This case is on remand from the United States Court of Appeals for the Fifth Circuit.  The Commission is to decide "what evidence will be considered on application of . . . [the Commission's] rules respecting exclusion and admission of evidence seized under an invalid warrant."  Smith Steel Casting Co. v. Donovan, 725 F.2d 1032, 1036 (5th Cir. 1984).  The court ruled that an ex parte warrant obtained by the Secretary and used to inspect Smith Steel's plant in Marshall, Texas, was invalid because "the OSHA regulations in effect during this period did not authorize ex parte procedures to obtain an administrative search warrant."  Id. at 1034.  Evidence gathered during the inspection was used by the Secretary in a hearing before an administrative law judge on the merits of citations issued to Smith Steel; the judge affirmed the citations.  We find that the evidence should not be excluded.

I

On January 22, 1980, with the consent of Smith Steel, OSHA industrial hygienist Jack Matthews and trainee Dan Thornhill conducted an inspection of the company's foundry.  They determined that employees were exposed to silica dust, copper fumes, and excessive noise and decided to make a return visit to the plant to measure for overexposure.  Thornhill attempted to do so on the following day, but was told by company officials that "continuation of the inspection would not be permitted."  On February 25, 1980, in an ex parte proceeding, OSHA obtained a warrant permitting it to inspect Smith Steel's "workplace . . . [at] 510 Hazlewood, Harrison County, Marshall, Texas 75670."[[1]]  The warrant was obtained from a United States magistrate in the eastern district of Texas and "authorized and directed" OSHA to enter the above-described workplace

at reasonable times during regular working hours for the limited purposes of determining whether or not the employees of Smith Steel Casting Corporation are exposed to health hazards caused by exposure to silica, copper, toxic chemicals, and noise, inspecting any other violation observed during such inspection, and investigating any other violations brought to your attention by any employee or representative of the employees . . . during such limited inspection.

The inspection was conducted on February 26-27, 1980, by industrial hygienist Matthews.  He tested for employee exposure to silica dust, copper fumes, and excessive noise.  He also observed, or learned about from a Smith Steel official with safety responsibilities, certain alleged violations of the respiratory protection standard at 29 C.F.R. 1910.134.

As a result of the inspection, OSHA issued citations to Smith Steel alleging that feasible engineering controls to limit exposures to silica and copper fumes had not been installed, contrary to section 1910.1000(e); that Smith Steel lacked an effective hearing conservation program, contrary to the standard at former section 1910.95(b)(3); and violations of a number of provisions in section 1910.134 governing the selection and use of respirators.[[2]]  Smith Steel contested the citations, arguing that no violations had occurred and that the evidence gathered during the inspection should be suppressed because it had been obtained pursuant to an invalid warrant.  Administrative Law Judge Edwin G. Salyers declared the ex parte warrant invalid under Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir. 1981), which had invalidated a warrant obtained ex parte by the Secretary under section 1903.4 as amended in 1978.[[3]]  The judge found that Huffines Steel was "controlling in this matter since the case . . . is venued in the Fifth Circuit."  Judge Salyers granted Smith Steel's motion to suppress the evidence and vacated the citations.

The Commission set aside the judge's decision and remanded the case.  It held that the Secretary was authorized to obtain the warrant ex parte under the 1978 version of section 1903.4 and that the inspection conducted under the warrant was valid.  Smith Steel Casting Co., 82 OSAHRC 37/D10, 10 BNA OSHC 1764, 1982 CCH OSHD 26,136 (No. 80-2069, 1982).  After an evidentiary hearing on remand, Judge Salyers affirmed the citations.  He concluded that Smith Steel violated section 1910.1000 by failing to install feasible engineering controls to reduce employee exposure to silica dust and copper fumes; section 1910.95(b)(3) by exposing employees to excessive noise and failing to implement an effective hearing conservation program; and several subsections of 1910.134 by failing to maintain a proper respiratory protection program and failing to comply with other requirements governing the selection and use of respirators.  The Commission declined review of the judge's second decision and Smith Steel appealed to the Fifth Circuit.

The Fifth Circuit concluded that the ex parte warrant was invalid based on its holding in Huffines Steel that the 1978 version of section 1903.4 did not validly authorize ex parte warrants.  The court stated that the Commission's ruling was "directly contrary to Huffines" and could not stand.  725 F.2d at 1035.  The Fifth Circuit did not, however, hold that the invalidity of the warrant required that the evidence gathered pursuant to it had to be suppressed.  The court pointed to two possible reasons for not suppressing the evidence.  First, the Commission might not apply Huffines Steel retroactively to suppress evidence obtained under an ex parte warrant issued before Huffines Steel was decided.  Second, a good faith exception to the exclusionary rule might be invoked because the OSHA inspector believed reasonably and in good faith that the warrant was valid.  Noting that the Commission had previously employed a non-retroactivity rule but had refused to recognize a good faith exception to the exclusionary rule, the court declined to address the merits of the appeal and remanded to the Commission for the Commission to apply its own rules regarding exclusion or admission of the evidence.[[4]] 725 F.2d at 1036.

II
In Chairman Buckley's view, the Commission can impose sanctions on the Secretary for violations of constitutional, statutory, or regulatory requirements.  The Commission can do so in the exercise of its supervisory authority over the Act's enforcement.  Brooks Woolen Co., Nos. 79-45 and 79-128, slip op. at 3 (April 10, 1985) (view of Chairman Buckley).  See Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979); Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC ___, 12 BNA OSHC 1082, 1984 CCH OSHD 27,091 (No. 80-471, 1984) (Buckley, Chairman, lead opinion); section 10(c) of the Act, 29 U.S.C. 659(c).  In this case there is no constitutional or statutory limit to the Secretary's authority to obtain a warrant ex parte.  The Fifth Circuit decision involves the interpretation of a rule that arguably imposed greater restrictions on the procedures the Secretary follows in obtaining a warrant than are mandated by the Fourth Amendment or the Occupational Safety and Health Act.  Davis Metal Stamping, Inc., No. 78-5775, slip op. at 7 (April 15, 1985) (view of Chairman Buckley) ("Davis Metal II").[[5]]  Indeed, the Secretary has amended the regulation to expressly permit ex parte warrants.  See note 1, supra.  We are faced here with the narrow question whether suppression of evidence is an appropriate sanction for the Secretary's breach of the prior version of his procedural rule.

Suppression of evidence is not an automatic remedy for a violation of a constitutional, statutory or regulatory requirement.  See United States v. Leon, 104 S.Ct. 3405, 3412-13 (1984); Brooks Woolen, slip op. at 9 (view of Chairman Buckley).  Suppression is an appropriate sanction where the Secretary acted improperly in obtaining or executing a warrant and where suppression of evidence can be expected to deter the Secretary from engaging in similar misconduct in the future.  Davis Metal II, slip op. at 6 (view of Chairman Buckley); see United States v. Leon, 104 S.Ct. at 3412-13; Brooks Woolen, slip op. at 3, 9-12 (view of Chairman Buckley).

Chairman Buckley concludes that the Secretary's action in obtaining this warrant ex parte is not the type of conduct that warrants suppression of evidence.  In Davis Metal II, the commission held that evidence obtained pursuant to a warrant obtained in breach of an earlier version of Rule 1903.4 should not be suppressed.  This case differs only slightly from Davis Metal II.   Here, the warrant was obtained under the 1978 version of section 1903.4.  When it was issued and executed, there were six federal court cases addressing the issue of warrant validity under that regulation.  Of the circuit courts of appeal, only the Tenth Circuit had then ruled on this issue, holding that the 1978 version of section 1903.4 at issue here properly authorized the Secretary to obtain warrants ex parte.  Marshall v. W. & W. Steel Co., 604 F.2d 1322 (10th Cir. 1979).  See also In the Matter of Worksite Inspection of S.D. Warren, Division of Scott Paper, 481 F. Supp. 491, 492-94 (D. Me. 1979); Marshall v. Trinity Industries, Inc., 7 BNA OSHC 1851, 1853-54, 1979 CCH OSHD 23,943, pp. 29,039-40 (W.D. Okla. 1979); Marshall v. Horn Seed Co., 509 F. Supp. 1, 4-5 (W. D. Okla. 1979).  Two district courts had rejected the Secretary's position and invalidated warrants obtained ex parte under the 1978 regulation.  Cerro Metal Products v. Marshall, 467 F. Supp. 869 (E.D. Pa. 1979), and Marshall v. Huffhines Steel Co., 488 F. Supp. 995 (N.D. Tex. 1979).

Under these circumstances, Chairman Buckley does not consider the Secretary's action in continuing to seek warrants ex parte under his own interpretation of his regulation to have been unreasonable or improper.  There is no reason, therefore, to suppress the evidence in this case because there is no reason to deter the Secretary's conduct in obtaining the warrant ex parte.  Moreover, suppression in this case would not serve to deter the Secretary from seeking ex parte warrants in the future because section 1903.4 has since been amended to specifically authorize the Secretary to obtain ex parte warrants.  See note 1, supra.   Suppression of the evidence here would amount to an empty gesture.

Chairman Buckley rejects Smith Steel's contention that the Secretary acted improperly in applying for the warrant because he did not notify the magistrate of court opinions that did not support the Secretary's interpretation of section 1903.4.  Neither of the two district court decisions holding ex parte warrants invalid was directly binding on the magistrate.  See Model Code of Professional Responsibility DR 7-106(B)(1) and EC 7-23 (1982) (lawyers must disclose authority in "controlling jurisdiction").  Although the case law was not unanimously in the Secretary's favor, there were cases that did support the Secretary's interpretation of his regulation and thus provided him with a sound legal basis on which to proceed.

Smith Steel also argues that the warrant was overbroad and authorized a more extensive inspection than requested in the warrant application.  The Commission may not suppress evidence, however, where an alleged error or illegality in the issuance of a warrant stems from a determination by a federal judge or magistrate that probable cause had been shown or that a warrant of a particular scope was justified.  The Commission, as an executive branch agency, has no authority to oversee or review the determination of an Article III court.  See generally Brooks Woolen, slip op. at 2-4 (view of Chairman Buckley); see also Babcock & Wilcox, 610 F.2d at 1136-37 (Commission cannot "sit in direct review of the decision of the magistrate"); Beauty Craft, 12 BNA OSHC at 1083, 1984 CCH OSHD at pp. 34,929-30 (Buckley, Chairman, lead opinion).  Because the Commission does not have authority to supervise or review the decision of a federal judge or magistrate to issue a warrant it cannot act on Smith's argument that the magistrate erred in deciding to issue a warrant of a particular scope.  Smith Steel has not demonstrated any improper conduct by the Secretary in obtaining the warrant or conducting the inspection pursuant to the warrant and Chairman Buckley therefore would deny its motion to suppress.

III

Commissioner Cleary concludes that the evidence should not be suppressed because the Secretary acted in the good faith belief that he was complying with a lawful regulation when he sought the warrant ex parte.  Evidence obtained under an inspection warrant that is subsequently declared illegal may not be suppressed if the Secretary proceeded in good faith and obtained the evidence in objectively reasonable reliance on the warrant.   Davis Metal II, slip op. at 11-13 (view of Commissioner Cleary).  He agrees that this case differs only slightly from Davis Metal II.  There, the Secretary sought a warrant ex parte under the original version of section 1903.4.  See note 1, supra.  Here, the Secretary proceeded under the regulation as amended in 1978 to more clearly specify that he was permitted to obtain warrants ex parte.  Although at the time of the warrant application here, the district courts in Cerro Metal and Huffhines Steel had declared warrants issued ex parte under the amended regulation invalid, the Tenth Circuit in W & W Steel and a number of other district courts had determined that the amended regulation properly authorized ex parte warrants.  The Secretary was, therefore, entitled to proceed under his own interpretation of section 1903.4 -- an interpretation that was subsequently accepted by the Commission and a majority of the courts of appeals that considered the issue.  Commissioner Cleary agrees that the good faith of the Secretary was not impaired by the fact that he did not inform the magistrate of the cases that had invalidated ex parte warrants issued under 1903.4.  Although there was conflicting case law on the issue, none of it was binding on the magistrate and the Secretary had more substantial legal authority supporting his own interpretation of his regulation.

Commissioner Cleary rejects Smith Steel's contention that evidence should be suppressed because the warrant was overbroad. Smith Steel argues that although the "warrant application was confined to allegations of dust and noise in two particular departments of the foundry," the resulting warrant "authorized a wall-to-wall search of all 12 to 15 buildings and [Smith Steel's] entire 40-acre spread unlimited as to the violations for which OSHA could search."   Smith Steel's arguments do not accurately describe either the Secretary's warrant application or the warrant.  The pertinent part of the warrant application provides:

[W]e request that you issue a[n] Inspection Warrant or Order authorizing any duly appointed Compliance Officer to enter the premises of Smith Steel Casting Corporation located at:  510 Hazlewood, Marshall, Harrison County, Texas for the limited purpose of inspecting and investigating, at reasonable times during regular working hours, to determine whether or not the employees of Smith Steel Casting Company are exposed to health hazards caused by exposure to silica dust, copper fumes, other toxic chemicals, and noise, inspecting any other violations observed during such limited inspection, and investigating any other violations brought to their attention by any employee or representative of the employees of Smith Steel Casting Company during such inspection.

The warrant application was supported by the detailed affidavit of industrial hygienist Matthews.  The following facts were presented to the magistrate by the affidavit and a document it incorporated by reference.   A "high hazard, general safety inspection" of Smith Steel's work place had been conducted between November 28 and December 4, 1979, by OSHA compliance officer Walter C. Hogan.  As a result of that inspection, Hogan directed a referral notice to the industrial hygiene section of OSHA's Tyler, Texas area office "for the purpose of inspecting the establishment for determination of compliance with OSHA regulations on employee exposure to air contaminants and to noise."  The referral notice stated that silica was observed in the foundry, that there was a buildup of sand dust on the faces and clothing of employees, and that no respirators were worn.  The referral notice also stated that noise level monitoring revealed decibel levels that continued for a time period considerably in excess of that permitted and that "no hearing protectors" were worn.

Matthews and Thornhill, acting on the basis of the referral, conducted their "initial walk-around inspection of the plant" on January 22, 1980.  During the inspection, the affidavit stated, the inspectors observed a sand dust buildup on the faces and clothing of foundry employees, potentially overexposing the employees to silica dust; a welder in the finishing department using a copper-clad rod, which could produce harmful copper fumes; and 21 employees, performing a wide variety of tasks, potentially overexposed to noise.  Overexposure to silica dust and copper fumes are violations of section 1910.1000, overexposure to noise a violation of section 1910.95.

The affidavit also stated that the "plant was exited . . . with the stipulation that full, eight-hour shift sampling for noise and silica dust would be accomplished the next day."  Thornhill returned at about 7:50 a.m. on the following day.  At about 8:50 a.m., he was "finally refused permission to enter" by Smith Steel's president Gerald Smith.  The reason given by Mr. Smith for the refusal, the affidavit stated, was that "the company did not have time to accompany Mr. Thornhill as they were busy with abating all the violations found by Mr. Hogan."

The warrant subsequently issued for the inspection of Smith Steel has been quoted above.  It uses terms almost identical to those in the application to describe the workplace, to list the hazards for which the Secretary could inspect, and to state specific bases on which the Secretary could inspect and investigate other violations.  Although the warrant did not expressly limit the particular areas of the designated work place that could be inspected, the warrant specifically limited the hazards for which the Secretary could inspect.  Authority to inspect for other violations was provided in the warrant only to the extent that the inspecting officers observed other violations "during such limited inspection" or that the other violations were "brought to their attention by any employee" or employee representative.

As the facts presented demonstrate, the warrant was supported by a considerable showing of probable cause.  The lengthy high hazard general schedule inspection of November-December 1979 had produced evidence of occupational health violations.  The January 1980 inspection by Matthews and Thornhill had confirmed the existence of similar, if not identical, violations.  Mr. Smith had kept Thornhill waiting for about an hour and then given him a rather dubious excuse for refusing to permit Thornhill to continue the inspection and do the sampling that had been previously agreed upon.  The facts provided the magistrate with ample justification for issuance of a warrant permitting an inspection of the entire facility.   The Secretary would not be further required to show, for purposes of obtaining a warrant and in advance of an inspection, that these conditions were to be found in each building. Probable cause in the criminal law sense is not required for an OSHA inspection.   Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978).  Also, the record does not support a finding that the Secretary executed the warrant in an unreasonable manner or with bad faith.  The evidence obtained under the warrant should not therefore be excluded.[[6]]

IV

The Commission's determination that the evidence should not be excluded complies with the Fifth Circuit's remand order to decide "what evidence will be considered. . . ." The court's mandate does not appear to bar the Commission from exercising its authority to address the merits of the citations.  See B.F. Goodrich Co., 81 OSAHRC 23/F1, 9 BNA OSHC 1444, 1981 CCH OSHD 25,261 (No. 2038, 1981).  We note, however, that before Chairman Buckley's term on the Commission but while Commissioner Cleary was a Commission member, Smith Steel had petitioned for discretionary review of Judge Salyers' remand decision on the merits and the Commission had declined review; Smith Steel subsequently appealed to the Fifth Circuit.  The Fifth Circuit's decision makes it apparent that it will address the merits after receiving the Commission's decision on remand.[[7]]  The Commission therefore declines to address the merits at this juncture as a matter of discretion and restraint.[[8]]  The case will be expedited by permitting it to return to the court of appeals.

Accordingly, the Commission finds that the evidence obtained under the inspection warrant should not be excluded.  The judge's decision regarding those items not vacated by the Fifth Circuit remains the final order of the Commission.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

Dated:  APR 23 1985




FOOTNOTES:

[[1]] The Secretary sought to obtain the warrant under the terms of 29 C.F.R. 1903.4.  Before December 22, 1978, section 1903.4 provided in part:

1903.4 Objection to inspection.
(a) Upon a refusal to permit a Compliance Safety and Health Officer, in exercise of his official duties, to enter without delay and at reasonable times any place of employment or any place therein, to inspect . . . . [he] shall endeavor to ascertain the reason for such refusal, and he shall immediately report the refusal and the reason therefor to the Area Director.  The Area Director shall immediately consult with the Assistant Regional Director and the Regional Solicitor, who shall promptly take appropriate action, including compulsory process, if necessary.

On December 22, 1978, the Secretary amended section 1903.4 by adding a subsection (d).  43 Fed. Reg. 59838-39.  The new subsection stated:

For purposes of this section, the term compulsory process shall mean the institution of any appropriate action, including ex parte application for an inspection warrant or its equivalent.

In adding subsection (d), the Secretary stated that he had not followed notice-and-comment rulemaking because the new subsection was an interpretative rule.  Under section 4 of the Administrative Procedure Act, 5 U.S.C. 553, notice-and-comment rulemaking is not required for interpretative rules.   After the inspection of Smith Steel's plant, the United States Courts of Appeals for the Third and Fifth Circuits in Cerro Metal Products, Division of Marmon Group, Inc. v. Marshall, 620 F.2d 964 (3d Cir. 1980), and Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir. 1981), held that the amendment was not properly characterized as an interpretative rule and was therefore invalid for not having been promulgated pursuant to notice-and-comment rulemaking. Thereafter, in October 1980, the Secretary promulgated a new version of subsection (d) pursuant to notice-and-comment rulemaking.  45 Fed. Reg. 65923.  The new subsection, which remains in effect, provides:

For purposes of this section, the term compulsory process shall mean the institution of any appropriate action, including ex parte application for an inspection warrant or its equivalent.  Ex parte inspection warrants shall be the preferred form of compulsory process in all circumstances where compulsory process is relied upon to seek entry to a workplace under this section.

[[2]] The standards cited were 29 C.F.R. 1910.134(a)(2), (b)(1), (b)(3), (b)(3), (b)(5), and (b)(9).

[[3]] See note 1, supra.

[[4]] The court vacated the Secretary's citations alleging a lack of a hearing conservation program and a lack of engineering controls for copper fumes after the Secretary had withdrawn those items during the pendency of the appeal.  The items that remain concern the selection and use of respirators and the installation of engineering controls to limit silica dust exposure.

[[5]] The Fifth Circuit based its decision in part on the discussion of Rule 1903.4 contained in the Supreme Court decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978).  The Supreme Court stated that "the kind of process. . .apparently anticipated by the regulation provides notice to the business operator."  436 U.S. at 318.  The Court further stated:

Insofar as the Secretary's statutory authority is concerned, a regulation expressly providing that the Secretary could proceed ex parte to seek a warrant or its equivalent would appear to be as much within the Secretary's power as the regulation currently in force and calling for "compulsory process."

436 U.S. at 320 n.15.

[[6]] Commissioner Cleary notes that it is as yet undetermined whether any evidence pertinent to the citations still in dispute was obtained as a result of any alleged overbreadth in the warrant or inspection.  If none was, there would be no basis for concluding that exclusion of the evidence would require the judge's findings be disturbed.  See note 4, supra.

[[7]] The court stated, "We decline to address further the merits of this appeal until the Commission has first decided what evidence will be considered. . . ." Smith Steel, 725 F.2d at 1036.

[[8]] Chairman Buckley's decision to limit review should not be read to reflect the view that other issues raised by the judge's decision are unworthy of review.