SECRETARY OF LABOR,

Complainant,

v.

HERN IRON WORKS, INC.,

Respondent.

OSHRC Docket No. 88-1962

ORDER OF REMAND

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

This case is before the Commission pursuant to the Commission's order of March 6, 1989, granting the Secretary's petition for interlocutory review. At issue before the Commission is whether the administrative law judge properly granted a motion from Hern Iron Works, Inc. ("Hern"), made at the start of the hearing on February 14, 1989, to postpone the hearing for 150 days. The Commission Rule at 29 C.F.R. § 2200.62(a) provides that "[a] hearing may be postponed by the Judge on his own initiative or for good cause shown upon the motion of a party." We conclude that the judge did not have good cause for granting Hern's motion. Therefore, we reverse his order granting the motion and remand the case to him.

We first note that the motion was not filed in accordance with the Commission Rule at 29 C.F.R. § 2200.62(c), which states:

A motion to postpone a hearing must be received at least seven days prior to the hearing. A motion for postponement received less than seven days prior to the hearing will generally be denied unless good cause is shown for late filing.

Hern did not offer any explanation for not filing the motion before the hearing.[[1/]] Absent a showing of good cause for the late filing, the judge should not have considered the motion. The parties and all the witnesses were in the hearing room and were ready to proceed. Postponing the hearing at that point would only have been justified by the most exigent circumstances.

Hern did not assert any exigent circumstances, or indeed any good reason for delaying the hearing. Hern contended that the hearing would be rendered unnecessary if the United States Court of Appeals for the Ninth Circuit, in a case in which oral argument had been held the week before, finds invalid the search warrant that the Secretary's agents possessed when they attempted to inspect Hern's worksite. However, in the ordinary case, a hearing should not be postponed simply because a court decision in a collateral proceeding might resolve a legal issue that is present in the case. Postponement of a case under these circumstances amounts to an indefinite stay of the proceedings since neither the Commission judge nor the parties have any control over the timing of the court's decision.[[2/]]

If the Ninth Circuit upholds the validity of the warrant, the hearing will have been delayed for no reason. A Ninth Circuit decision favorable to Hern can be taken into account after the hearing, either through briefs the parties file with the judge, or through the process by which they can seek review of the judge's decision.[[3/]] In an appropriate case, a postponement might be justified if it would prevent the potential waste of substantial resources by the parties. Here, however, the parties estimated that it would take no longer than four hours to try the entire case, and the witnesses were already present in the hearing room.

Finally, we note that our rules do not favor long postponements. Rule 62(d), 29 C.F.R. § 2200.62(d), requires that "[n]o postponement in excess of 60 days shall be granted without the concurrence of the Chief Administrative Law Judge." There is no indication in the record that the judge conferred with the Chief Administrative Law Judge before granting the postponement.

For the reasons stated above, we reverse the judge's order granting Hern's motion to postpone the hearing for 150 days. We remand the case to the judge for prompt action consistent with our order of expedited proceedings in this case, which was issued pursuant to the Commission Rule at 29 C.F.R. § 2200.103(a) as part of our order of March 6, 1989, granting the petition for interlocutory review.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: April 20, 1989


ELIZABETH L. DOLE (successor to

ANN McLAUGHLIN), Secretary of Labor,

United States Department of Labor,

Complainant,

v.

HERN IRON WORKS, INC.,

Respondent.

OSHRC Docket No. 88-1962

PETITION FOR INTERLOCUTORY REVIEW

Comes Now the Secretary of Labor, by and through her undersigned representatives who petitions the Occupational Safety and Health Review Commission for Interlocutory review pursuant to 29 C.F.R. Part 2200.73.

Interlocutory review is proper pursuant to 29 C.F.R. Part 2200.73(a)(1). The review involves an important question of law or policy about which there is substantial grounds for difference of opinion and immediate review of the ruling may materially expedite the final disposition of the proceedings.

Dated February 22nd, 1989.

Respectfully Submitted,

Robert A. Friel
Associate Regional Solicitor

Cathy L. Barnes
Attorney

U.S. DEPARTMENT OF LABOR


ELIZABETH L. DOLE (successor to

ANN McLAUGHLIN), Secretary of Labor,

United States Department of Labor,

Complainant,

v.

HERN IRON WORKS INC.,

Respondent.

OSHRC Docket No. 88-1962

MEMORANDUM OF LAW SUPPORTING MOTION FOR INTERLOCUTORY REVIEW

I

A. 29 C.F.R. PART 2200.63 WAS VIOLATED BY THE ADMINISTRATIVE LAW JUDGE'S ACTION

29 C.F.R. Part 2200.63 states that "stays are disfavored." The movant is required to serve a copy of his motion for a stay on the Chief Administrative Law Judge. 29 C.F.R. Part 2200.63 presupposes that the movant shall provide as much advance notice as possible before the motion is made. 29 C.F.R. Part 2200.63 was violated in that the movant placed counsel for Complainant and the administrative law judge in the position of responding to an untimely motion for a stay without any advance notice of the Motion.

Adequate notice was particularly warranted in light of the fact that pursuant to the prehearing order of the administrative law judge, all representatives were to be present in Coeur D'Alene, Idaho with their witnesses and they were to be prepared for hearing.

Counsel for Respondent misrepresented facts (see affidavit supporting this motion) which were pertinent to Judge Loye's ruling on the stay. Counsel for Complainant, on the other hand, had no opportunity to consult with Appellate counsel in Washington, D.C. to attempt to verify Mr. Herbert's representations. Counsel for complainant was forced to accept these representations because the court agreed to hear this untimely motion for a stay. This scenario is precisely why stays are disfavored and why adequate notice is required to allow all concerned to address the reasonableness of the stay.

B. THE STAY GRANTED HEREIN WAS UNREASONABLE

The grant of a stay was unreasonable. The period of 150 days was ascertained from Respondent's counsel who represented that Circuit Court Docket Numbers 88-4065 and 88-4193 would be dispositive of the issues in this enforcement action and would render the hearing before the administrative law judge moot. Counsel further argued that a 150 day stay was appropriate because the two cases were briefed already by appellate counsel and argued already before the Ninth Circuit. This is false.

The Respondent is the appellant before the Ninth Circuit Court of Appeals in not one but three pending appeals of U.S. District Court rulings in favor of the Complainant. (See attached Exhibit 1).

In the first proceeding, docketted as #88-3668, the Respondent has appealed the District Court's Order of November 19, 1987 in which the Court determined after adversary proceedings that the June 11, 1987 Warrant was valid and that the Respondent was in contempt of court for its failure to honor the warrant on June 23 and 24, 1987 (See Exhibits 2 and 3). The validity of the warrant is now an issue before the Ninth Circuit in #88-3668. This is the appellate proceeding to which Respondent appears to be referring in its motion and which was argued on February 7, 1989. (See Exhibit 4). That appellate proceeding however relates to various matters all of which occurred well prior to the May 24, 1988 date of the alleged violation at issue in the instant Review Commission proceeding.

In the other two proceedings, docketted as #88-4065 and #88-4193 and presently consolidated on appeal, the Respondent has appealed the District Court's orders of June 13, 1988 denying the Respondent a preliminary injunction and of August 30, 1988 dismissing with prejudice the Respondent's complaint seeking inter alia a declaratory judgement that the aforesaid warrant was invalid on May 24, 1988. (See Exhibits 5 and 6). The issues presented in the consolidated appeals relate to the circumstances of May 24, 1988, yet the consolidated appeals will not be resolved until well beyond 150 days. The Respondent's brief is not even due until March 13, 1989 (See Exhibit 7), and oral argument will not be scheduled let alone heard, until after all briefing has been completed. One cannot anticipate a decision in the consolidated appeals until 1990 at best.

The Respondent in its motion for a stay of 150 days has sought to delay the resolution of this proceeding on the basis of one appellate proceeding which it represents to this tribunal as being capable of rendering this case moot. Should the order granting a stay of proceedings of 150 days not be vacated, the order will thereby embrace as the law of this case the proposition that further proceedings may be stayed upon the representation that there is pending any appellate litigation which arguably could render the instant proceeding moot. The Complainant is concerned that upon expiration of the current 150 day stay the Respondent may then seek a further continuance in delay on the basis of the consolidated appeals with the further representation that they are capable of rendering this proceeding moot: through failing to disclose to this tribunal the full scope and expected time frames of all the pending appellate matters (in each of which attorneys from the Mountain States Legal Foundation are appellate counsel for the Respondent), the Respondent has in effect adopted a piece-meal approach to a longer delay of the resolution of this proceeding. Should #88-3668 not be resolved within 150 days, what would prevent the Respondent from seeking a further stay herein until that proceeding is resolved? When #88-3668 is finally resolved, what would prevent the Respondent from then discovering that the consolidated appeals of #88-4065 and #88-4193 relate to some of the very circumstances occurring on May 24, 1988 (the date of the alleged violation herein) and seeking a series of further stays until the consolidated appeals are resolved? In reality and with the full disclosure of all pending appellate litigation, the Respondent's motion for a stay of 150 days is properly viewed as a request for a stay until all appellate matters have been resolved, an eventuality which cannot be expected to occur until 1990. When viewed in such light, the Respondent's request is in fact a request for a stay of at least one year. A complete stay of all proceedings herein for such an exceptional length of time is on its face unwarranted and clearly inconsistent with the prompt and expeditions resolution of this case. 29 C.F.R. Part 2200.67 states in pertinent part: "It shall be the duty of the Judge to conduct a fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate all issues and avoid delay".

II

THE APPELLATE COURT CASES WOULD NOT RENDER THIS ENFORCEMENT ACTION MOOT

Respondent has argued that the Circuit Court is 150 days away from rendering a decision which will make this enforcement action moot. The Circuit court has been asked to rule on two issues in 88-3668: (1) Whether to uphold the District Court's denial of a Motion to Quash the warrant of inspection which Hern Iron Works, Inc. refused to honor on June 23 and June 24, 1987 and (2) whether to uphold the District Court decision holding Hern Iron Works in contempt of court for actions arising in 1987. Under no possible scenario will this decision render the enforcement action moot.

Circuit court docket numbers 88-4065 and 88-4193 would not render the enforcement action moot either. Respondent contends on the other hand, that if the Circuit Court decides that the service or issuance of the warrant was improper, this enforcement action will be disposed of, ipso facto.

Assuming, for purposes of argument, that the warrant was improperly issued or served, the administrative law judge is still left with the obligation pursuant to 29 C.F.R. Part 2200.67 to "adjudicate all issues". Suppression of evidence is not an automatic remedy for a violation of a constitutional, statutory, or regulatory requirement, Smith Steel Casting Co., 1984-1995 CCH OSHD ¶ 27,263, Nos. 80-2069 and 80-2322 (1985), aff'd 800 F.2d 1329 (5th Cir., 1986). The Review Commission has held that evidence obtained in reliance upon a subsequently invalidated warrant is not automatically suppressed. According to Chairman Buckley's view, "suppression of evidence 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". Commissioner Cleary concluded that evidence "may not be suppressed if the Secretary proceeded in good faith and obtained the evidence in objectively reasonable reliance on the warrant."

In Synkote Paint Co. and KDK Upset Forging Co., 1986 CCH OSHD ¶ 27,675, Nos. 83-2 and 83-152 (1986), The Commission reiterated that the Commission as an administrative agency in the executive branch may not directly review the decision of a United States Magistrate or district court judge to issue a warrant. However, the Commission must still decide whether to use the evidence arising from an inspection conducted pursuant to the warrant. "In so doing, the Commission may exercise its inherent authority to determine what evidence will be admissible in its proceedings and in particular to develop criteria regarding the admission or exclusion of evidence obtained under an invalid warrant." Commissioner Wall stated that the seminal case on the good faith exception to the exclusionary rule, U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), is applicable to cases before the Commission. Hence, in the instant case, it would be improper not to make findings of fact and conclusions of law with respect to the good faith actions of the compliance officers even if the warrant for inspection was suppressed.

Therefore, it is an error to stay this enforcement action in light of pending circuit court matters which won't be resolved in 150 days as counsel misrepresented and secondly, won't render moot the court's duties to decide issues of law and fact now before the administrative law judge.

CONCLUSION

Based on the foregoing, Petitioner requests interlocutory review to avoid unreasonable delay in this case.

Dated February 22nd, 1989.

Respectfully Submitted,


Robert A. Friel
Associate Regional Solicitor

By Cathy L. Barnes
Attorney

U.S. DEPARTMENT OF LABOR


SECRETARY OF LABOR,

Complainant,

v.

HERN IRON WORKS, INC.,

Respondent.

OSHRC DOCKET NO. 88-1962

APPEARANCES:

For the Complainant;
William W. Kates, Esq., Office of the Solicitor,
U. S. Department of Labor, Seattle, WA

For the Respondent:
Harvey Richman, Esq., Coeur D'Alene, ID

Gary N. Herbert, Esq., Mountain States Legal
Foundation, Denver, CO

DECISION AND ORDER

Loye, Judge:

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act").

On May 24, 1988, following receipt of two employee complaints, the Occupational Safety and Health Administration (OSHA), attempted to conduct an inspection at the workplace of Hern Iron Works, respondent in this action, in Coeur D'Alene, Idaho (Tr. 68, 70). Mr. John A. Hern, respondent's owner, was informed of the reason for the inspection and asked to provide the Compliance officers with OSHA accident and injury logs as described in 29 CFR § 1904 (Tr. 71, 73). Mr. Hern asked to be shown a warrant (Tr. 71). A copy of a warrant previously issued in June 1987 was provided Mr. Hern (Tr. 72). After speaking to his attorney, Mr. Hern refused to cooperate with an inspection (Tr. 77-78). Respondent was issued a citation for violation of 29 CFR § 1904.7 which requires that "[e]ach employer shall provide, upon request, records provided for in § 1904.2, 1904.4, and 1904.5. . ." i.e. logs and summaries of occupational injuries and illnesses.

The Commission has found § 1904.7 unconstitutionally invalid insofar as it "purports to authorize an inspection of required records without a warrant or its "equivalent," e.g. the employer's consent or an administrative subpoena. . ." Taft Broadcasting Co., Kings Island Division, 13 BNA OSHC 1137 (No. 82-1016, 1987), aff'd, 849 F.2d 990 (6th Cir. 1988).

There is no question that Hern did not consent to inspection of its records. No administrative subpoena was produced. The testimony indicates that although the Compliance Officer presented respondent with a year old warrant, the inspection of respondent's workplace was not instigated for the purpose of executing that warrant, but rather was the result of newly received employee complaints. Moreover, the Secretary does not argue that the inspection was authorized by the June 1987 warrant; in fact her brief never mentions the warrant.

This judge is bound by the holding in Taft Broadcasting Co. In the absence of any evidence that OSHA's request for respondent's records was consented to or authorized by facially valid compulsory legal process, respondent's failure to provide the requested records cannot constitute the basis for citation.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been found specially and appear in the decision above. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed Findings of Fact or Conclusions of Law that are inconsistent with this decision are denied.

Order

1. Willful citation 1, item 1 alleging violation of § 1904.7 is DISMISSED.

Benjamin R. Loye
Judge, OSHRC

Dated: November 15, 1989


FOOTNOTES:

[[1/]] The attorney who now represents Hern replaced a different attorney from the same organization some six days before the hearing. However, Hern's counsel did not contend that he was unfamiliar with the case, and he filed a Witness and Exhibits List on the day he began representing Hern. Although the substitution of counsel may have justified some deviation from the seven-day requirement of section 2200.62(c), there appears to be no justification for waiting until the hearing had actually begun to file the motion.

In this regard, we observe that the notice of hearing was mailed to the parties on November 2, 1988, over two months before the scheduled hearing date. Hern's motion is not based on information it received shortly before the scheduled hearing, but rather on facts that it had been aware of for some time, e.g., pending court proceedings to which it was a party. We therefore conclude that Hern could and should have made essentially the same motion it made on February 14, 1989, as soon as it had received the notice of hearing.

[[2/]] The Secretary argues persuasively that, unless Hern receives the decision it is hoping for from the Ninth Circuit within the 150-day postponement period, motions for additional postponements will undoubtedly be forthcoming. Hern frankly acknowledges in its submissions that this is its intent.

[[3/]] The judge apparently believed that if he had proceeded with the hearing at the scheduled time, a subsequent Ninth Circuit decision in the warrant case mentioned by Hern would require him to hold a second hearing. We perceive no reason why a second hearing would be necessary under those circumstances.