SECRETARY OF LABOR,
Complainant,

v.

EQUITABLE SHIPYARDS, INC.,
Respondent.

OSHRC Docket Nos, 81-1685, 81-1762,
& 81-2089

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).

Administrative Law Judge Paul L. Brady affirmed a citation alleging that Equitable Shipyards, Inc. ("Equitable") failed to protect certain employees against overexposure to welding fumes by assuring that the employees wore appropriate respirators and by providing sufficient mechanical ventilation.  In addition to arguing that it did not violate the cited standards, Equitable contends that (1) all evidence gathered by the Secretary of Labor during his inspection of Equitable's workplace should be suppressed because there was no probable cause for the inspection; (2) the judge erred in declining to enforce a subpoena Equitable had issued to Tim Dorman, Equitable's safety director at the time of the alleged violations; and (3) the judge erred in not ordering the Secretary to turn over to Equitable employees.  We conclude that Equitable's motion to suppress was properly denied.  We further conclude, however, that the judge erred in declining to enforce the Dorman subpoena and that remand for further proceedings is therefore required.

I
Equitable operates a shipyard in Madisonville, Louisiana.  Following a complaint by employees of unsafe working conditions, two OSHA compliance officers attempted to inspect the facility.  When Equitable refused to consent to the inspection, OSHA obtained a warrant from a federal magistrate authorizing it to inspect the areas in the shipyard that were mentioned in the employee complaint.  Equitable again refused to permit the compliance officers to conduct the inspection and filed suit in federal district court seeking to have the warrant quashed on the ground it was not supported by probable cause.  The district court found there was probable cause to support the warrant and ordered that the inspection be conducted according to its terms.  Ultimately, the inspection was conducted, and Equitable was cited for violating several OSHA standards on the basis of information gathered during the inspection.

Equitable argues that the evidence gathered during the inspection should be suppressed and the citations vacated because probable cause for issuance of the warrant was lacking.  We reject the argument.

In Chairman Buckley's view, the Commission has no authority to review or set aside the probable cause determination made by a federal judge or magistrate who issues a search warrant.  Brooks Woolen Co., OSHRC Docket Nos. 79-45 and 79-128, slip op. at 2-3 (April 10, 1985)(view of Chairman Buckley).  Where an inspection was conducted pursuant to a warrant, the Commission can consider challenges to the warrant based on allegations that the Secretary acted illegally in obtaining or executing the warrant.  Id.  In this case, Equitable claims no misconduct on the Secretary's part; it argues only that the probable cause determination made by the magistrate and upheld by the district court judge was in error.  As the Commission has no authority to rule on such an argument, Chairman Buckley would deny the motion to suppress.  Id.; Beauty Craft Tile of the Southwest, Inc., 84 OSAHRC____,12 BNA OSHC 1082, 1083, 1984 CCH OSHD 27,091, pp. 34,929-30 (No. 80-471, 1984).

Commissioner Cleary finds the warrant is supported by probable cause.  The Secretary sought the warrant after receiving a formal, signed complaint from five employees listing a number of purportedly unsafe conditions in the Erection and Rake areas of Equitable's shipyard.  The complaint stated that employees were exposed to toxic air contaminants from painting and welding operations, to fire hazards due to improperly maintained welding equipment, to fall hazards due to improperly tightened safety lines, to a slipping hazard due to oil leaking on barge decks, and to electrical shock due to improperly maintained welding lines and to welding in wet and rainy weather.  The warrant application set forth the substance of the employee complaint and sought to inspect only those areas of the shipyard mentioned in the complaint.  The warrant that was issued was similarly limited.  The information presented in the warrant application was sufficient to establish probable cause for the limited-scope warrant that the magistrate issued.  See Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1615-16, 1981 CCH OSHD 25,360, pp. 31,534-35 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982).

Even if the warrant was not supported by probable cause, Commissioner Cleary would not suppress the evidence.  The Supreme Court has held that evidence should not be suppressed when an officer acting with objective good faith has obtained a warrant from a judge or magistrate and acted within its scope.  United States v. Leon, 104 S.Ct. 3405, 3420 (1984).  Commissioner Cleary would apply that same rule to Commission proceedings.  Davis Metal Stamping, Inc., OSHRC Docket No. 78-5775 (April 15, 1985).  In this case, the compliance officers who inspected Equitable's workplace were clearly entitled to rely on the validity of the warrant. The warrant had been duly issued by a magistrate and, prior to its execution, the magistrate's probable cause determination had been upheld by the federal district court.  Equitable does not argue that the compliance officers acted in other than good faith in obtaining and executing the warrant and does not advance any reason why they were not entitled to rely on the warrant's validity.  Cf. United States v. Leon, 104 S.Ct. at 3421-22 (suppression of evidence is appropriate if magistrate was misled by knowingly or recklessly false information in an affidavit, or if affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.").  Because the compliance officers conducted the inspection in objectively reasonable reliance on the validity of the warrant, there is no basis to suppress the evidence.  See Donovan v. Federal Clearing Die Casting Co., 695 F.2d 1020 (7th Cir. 1982).

II

Equitable next asserts that the judge erred in refusing to enforce a subpoena issued to Equitable's safety director, Tim Dorman. Dorman was the company's principal representative during the inspection.  At the time of the hearing, Dorman was no longer employed by Equitable and had moved to San Francisco.  Equitable attempted to obtain Dorman's testimony by means of a subpoena.  See 29 C.F.R. 2200.55 (Commission rule governing subpoenas).  The facts surrounding service of the subpoena are not fully developed in the record, but Dorman apparently received notice of it for he wrote a letter to Equitable's counsel declining to appear at the hearing.  At the outset of the hearing, Equitable moved for enforcement of the subpoena.  The judge reserved ruling at that point.  When Equitable renewed its motion at the close of its evidence, the judge denied the motion, stating that Dorman's testimony "is not crucial to this proceeding."

We conclude that the judge erred in declining to enforce the subpoena on that ground.  On at least one material issue of fact, there is a sharp conflict in the evidence, and Dorman's testimony could be crucial in resolving that point.  Moreover, as Equitable's safety director and representative during the inspection, Dorman would ordinarily be expected to be an important witness for Equitable. Under the circumstances, fundamental fairness requires that Equitable be given the opportunity to obtain Dorman's testimony.

The issue on which there is conflicting evidence concerns the type of respirator certain Equitable employees were using during the inspection.  One of the citation items on review alleges that five welders were exposed to excessive levels of welding fumes while not wearing respirators approved for use against welding fumes.  Although four of the employees were observed by the Secretary's compliance officers to be wearing respirators, the Secretary alleged that those respirators were not approved for welding fumes.  The Secretary also alleged that the fifth employee was not wearing any respirator at all.  Equitable contends that it provided respirators approved for use against welding fumes and that its employees were required to wear such respirators whenever welding. The company further contends that the evidence does not support the Secretary's allegation that the five employees in question were not wearing proper respirators.

During the inspection, OSHA compliance officers monitored the five employees to determine the concentrations of welding fumes to which they were exposed.  Compliance officer Crawford monitored three of the employees:  Glass, Revere, and Sharp.  Crawford was accompanied by Dorman during this phase of the inspection.  Crawford testified that Glass, Revere, and Sharp wore 3M model 8710 respirators, which provide protection against dust but are not approved for welding fumes.   Crawford stated that he wrote down the NIOSH approval number from the respirator that Glass was wearing.  That number, TC-21C-132, corresponds to the approval number of the 8710 respirator that was introduced into evidence.  Crawford further testified that the 8710 respirator appeared significantly different from the 3M model 9920 respirator that Equitable claims the employees were wearing and which is approved for welding fumes.  Samples of both respirators were introduced into evidence and support Crawford's testimony that the two respirators are distinct in appearance and could not be confused.

Of the three employees observed by Crawford, only Glass testified.  When shown a 9920 respirator, Glass stated that it was the type of respirator he had been wearing at the time of the inspection.  Glass answered affirmatively when asked if he was absolutely positive that the 9920 was the type of respirator he had been wearing, stating:  "You wear one every day of your life while you're working, you ought to recognize it."  Glass was no longer working for Equitable at the time of the hearing and had no apparent interest in the outcome of the case.

Two employees, Cooper and Mayfield, were monitored by compliance officer Cannon, who was accompanied by Equitable's safety inspector Stein.  Cannon testified that Cooper was wearing a model 8710 respirator.  He did not observe the model number on the respirator but identified it as an 8710 because it possessed two straps instead of only one.  Stein identified the respirator that Cooper was wearing as a 9920.  The respirator samples introduced into evidence show that both the 8710 and 9920 have two straps.

Cannon testified that Mayfield was not wearing any type of respirator and had no respirator with him when he went into the wing wall, where he performed welding that day.  However, Cannon stated that he placed the sampling cassettes on the employees before they went into the wing wall and would not have seen if Mayfield put on a respirator inside the wing wall.  Nevertheless, Cannon was certain that Mayfield did not use a respirator inside the wing wall.  He stated, "Every time he came out, he didn't take one off, and as far as I know, he had none available.  He may have had one available, but he was not utilizing one."  Stein testified that both Cooper and Mayfield had respirators with them when they went into the wing wall, and he did not observe either of them welding without wearing a respirator.

The judge did not resolve the conflicts in the evidence.  Instead, he believed the parties had stipulated that the employees in question were wearing 8710 respirators at the time of the inspection and, on this basis, he affirmed the citation item.  Equitable argues on review that no such stipulation was entered.

We agree.  At the beginning of the portion of the hearing devoted to the welding fumes citation, Equitable's counsel did express a willingness to stipulate to the type of respirators being worn, but no such stipulation was ever completed.  After the Secretary's counsel stated her intention to call several Equitable employees as witnesses, the following exchange ensued:

JUDGE BRADY:  You don't have any problem with that, do you, Mr. Rader?

MR. RADER [Counsel for Equitable]:  No, Your Honor.  Of course, again, I don't know, but if the purpose of calling employees is to testify that they wore this particular respirator, then we would stipulate that.

JUDGE BRADY:  Let's get off the record to discuss this.

(Off-the-record discussion).

JUDGE BRADY:  Let's go back on the record.  During the off-the-record discussion meeting of the parties, there has been a stipulation reached.  Do you want to cite the terms of the agreement, Mr. Rader?

MR. RADER:  Your Honor, it's my understanding that the Secretary intends to call some employee witnesses for the purpose of establishing that on a day personal monitoring was conducted, that their work load was normal, that the ventilation was normal.  And we're certainly willing to stipulate to that point.

MS. GANNAWAY [Counsel for the Secretary]:  Right Your Honor.  For clarification, the purpose being that the Secretary is establishing that this was a routine work day, that it's representative of the nature and the extent and the quantity of work performed by these workers on a typical work day, that there was nothing out of the ordinary on the day of personal monitoring.

This exchange cannot be construed to include a stipulation that Equitable's welders wore 8710 respirators.  The offer by Equitable's counsel to stipulate to the type of respirator did not mention a model number, and there had been no previous mention at the hearing of the 8710 respirator that would indicate that the reference to "this particular respirator" meant the model 8710.[[1]] Moreover, the stipulation that was ultimately entered involved only the representativeness of the work load and ventilation on the day monitoring was performed, not the type of respirator being worn.  The subsequent course of the hearing is also inconsistent with any suggestion that the parties understood there was a stipulation concerning the type of respirator the welders were using.  The parties introduced conflicting evidence on the point, and each side cross-examined the other party's witnesses who testified on the subject.  At no time during the hearing did either party suggest that this lengthy testimony was unnecessary because a stipulation had resolved the issue.

In declining to enforce the subpoena on the basis that Dorman's testimony was not crucial, the judge apparently acted on his belief that the parties had stipulated that the welders wore unapproved respirators.  However, that issue not only remains in dispute, the evidence on it is sharply contradictory.  In particular, Crawford's testimony positively identifying the respirators worn by Glass, Revere, and Sharp as 8710's conflicts with Glass' equally unequivocal testimony that he was wearing a 9920.  Dorman accompanied Crawford during the portion of the inspection when Crawford observed Glass, Revere, and Sharp.  Equitable made an offer of proof that Dorman would testify that the employees were wearing 9920 respirators.[[2]]  Under these circumstances, Equitable is entitled to the opportunity to present Dorman's testimony.[[3]]  We reject the Secretary's argument that Dorman's testimony is not needed because other persons, Revere and Sharp, could shed additional light on the issue.  We are unwilling to second-guess counsel's choice of one witness over another; that several persons may have knowledge of a particular fact should not preclude a party from presenting the witness of its choice.

The Secretary argues in his brief to the Commission that the subpoena should not be enforced because it was not properly served on Dorman.  We see no reason to resolve this point now.  First, it is not clear that the Secretary may raise this objection; in general, a party lacks standing to raise objections to a subpoena issued to another person.  See Lee Way Motor Freight, 75 OSAHRC 20/E12, 3 BNA OSHC 1843, 1846, 1975-76 CCH OSHD 20,250, p. 24,144-45 (No. 7674, 1975).  Second, the judge did not base his ruling on the Secretary's objection and has not yet had occasion to consider it.  Where there is a question as to whether a subpoena was properly served, a definitive ruling can be made in a proceeding to enforce the subpoena.   National Labor Relations Board v. Strickland, 321 F.2d 811, 814 (6th Cir. 1963).

III
During the inspection, the compliance officers obtained written statements from a number of Equitable employees.  Equitable sought to obtain those statements through discovery and submitted to the Secretary written forms signed by nineteen employees authorizing the release of their statements to Dorman, who was then still Equitable's safety director.  The Secretary refused to produce the statements and the judge did not order them produced.  Equitable contends that the judge erred in failing to order the Secretary to turn over the statements.

We find it unnecessary to resolve this issue.  Equitable had claimed before the judge that the employees' statements pertained to "several" citation items and that the employees had made effective waivers of their informer's privilege.  The judge did not order disclosure.  In his decision, the judge affirmed several citation items and modified one to a de minimis notice.  Equitable sought and obtained discretionary review of the judge's disposition of only two of these items--subitems 1a and 1b of serious citation 2 in docket no. 81-2089.   These items allege that five named employees were overexposed to welding and iron oxide fumes on June 3, 1981, that mechanical ventilation was inadequate, and that the employees were not wearing the appropriate respirators.  The Secretary argues in his answering brief on review, and Equitable does not in its reply brief dispute, that the issue of the production of the statements does not pertain to the citation items still in controversy.  Aside from a technical dispute over where personal sampling devices should have been placed on the five employees, the only disputed question of fact on review is whether the five employees were wearing respirators approved for welding fumes.   The nineteen statements that Equitable sought were not made by any of those five employees and were made about two months before the alleged violations before us occurred.  Equitable does not seek the disclosure of any statements made by the five employees and it has not produced any written waivers signed by them. Although the statements sought were apparently relevant to two other items that the judge had respectively affirmed without penalty and had modified to a de minimis notice, Equitable did not seek discretionary review as to them.  We therefore have no occasion at this time to address the disclosure issue.

Accordingly, the judge's decision is set aside to the extent it is inconsistent with this decision, and the case is remanded for further proceedings in accordance with Part II of this opinion.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 18 1985


FOOTNOTES:

[[1]] Immediately prior to the quoted exchange, the Secretary had presented his case on a different respirator item, which alleged that spray painters were not protected by approved respirators.  The Secretary's evidence showed, and the parties stipulated, that Equitable's spray painters had been using 3M model 8711 respirators.  It is possible that counsel's reference to "this particular respirator" arose out of a misunderstanding as to which citation item was being discussed and was meant to refer to the previously discussed 8711 respirators.

[[2]] The judge stated that even if Glass was wearing a 9920 respirator during the inspection, Equitable would still be in violation because three other employees were wearing unapproved respirators and one was not wearing any respirator at all.  We do not agree that the record supports these conclusions.  First, if Glass' testimony that he wore a 9920 respirator is believed, Crawford's testimony that Revere and Sharp were wearing unapproved respirators must be rejected, for Crawford testified that Revere and Sharp were wearing the same type of respirator as Glass.  Second, Cannon's testimony that Cooper wore an unapproved respirator was based primarily on his observation that Cooper's respirator had two straps.  However, the 9920 respirator, like the 8710, has two straps, and Stein testified that the respirator Cooper wore was a 9920.  Thus, the record does not support a finding that Cooper wore an unapproved respirator.  Finally, neither Cannon nor Stein could positively state whether Mayfield wore a respirator while he was welding, as neither could see him during that time.  Their testimony conflicted on whether Mayfield had a respirator with him when he went into the wing tank.  Without a credibility determination, we cannot find that Mayfield was not protected by a respirator when welding.  See Evansville Materials, 77 OSAHRC 143/M9, 3 BNA OSHC 1741, 1742, 1975-76 CCH OSHD 20, 187, p. 24,046 (No. 3444, 1975).

[[3]] At one point, Equitable suggested that Dorman's deposition could be taken as an alternative to his appearance at the hearing. On remand, the parties should consider this possibility.  See section 12(h) of the Act, 29 U.S.C. 661(g) (Commission may order testimony taken by deposition); 29 C.F.R. 2200.70 (deposition in lieu of testimony).