OSHRC Docket No. 76-1116

Occupational Safety and Health Review Commission

August 22, 1977


Before: BARNAKO, Chairman; and CLEARY, Commissioner.


Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Don Hensel, Pres., Hensel Optical Co., for the employer



BY THE COMMISSION: This case is before the Commission for review pursuant to 29 U.S.C. 661(i). Review was directed "to determine whether the decision properly applied the law of Brennan v. Gibson Products, Inc. of Plano, 407 F. Supp. 154 (E.D. Texas. 1976)." In response to the direction for review, the respondent asserts that it would have objected to the inspection if the complainant's inspector had not "grossly misrepresented his intentions and his authority to conduct an inspection." The respondent also cites the Gibson decision and various regulations of the Secretary of Labor that were relied on in that decision to support its contention that the inspection was illegal because it was made without a search warrant.

The Judge rejected the respondent's contention that the inspector misrepresented his intention and authority, finding that it was not supported by the record. The Judge found that the respondent, through its president, [*2] had consented to the inspector's entry after he had properly presented his credentials and advised the respondent's president of the purpose of the visit. The Commission specifically adopts these findings. Inasmuch as the Commission finds that the respondent consented to the entry, it is unnecessary to express an opinion on the issue before the court in the Gibson case. It is enough to say that the question posed in the instant case is inapposite to that before the Gibson court and that the Judge's findings and conclusions regarding the entry are in accordance with Commission precedent. * See Western Waterproofing Co., Inc., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976), petition for review dismissed, No. 76-1703 (8th Cir., April 8, 1977). The Commission agrees with the Judge's conclusions and adopts his decision insofar as it conforms to the foregoing.

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* As noted by Judge Martin, the Gibson case involved the question of complainant's right to enter premises when the employer refuses to consent to the entry.

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Accordingly, the Judge's decision is affirmed.