ELECTROCAST STEEL FOUNDRY, INC.

OSHRC Docket No. 77-3170

Occupational Safety and Health Review Commission

April 21, 1978

[*1]

Before CLEARY, Chairman; BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Regional Solicitor

Richard E. Jaudes, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

This case is on interlocutory appeal following Judge Louis G. LaVecchia's denial of Electrocast's motion to suppress evidence and dismiss a complaint alleging violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. At issue is whether Electrocast's allegation that the manner in which the Secretary conducted his inspection was unreasonable and punitive should result in suppression of the evidence gathered during that inspection. n1

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n1 Section 8(a) of the Act, 29 U.S.C. 657, authorizes the Secretary to conduct inspections of worksites. It states in part:

In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator or agent in charge is authorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment. . . .

[*2]

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A representative of the Secretary originally sought to inspect Electrocast's Cicero, Illinois steel foundry, on or about July 5, 1977. At that time he was denied entry, Electrocast demanding that a search warrant be obtained. The requested warrant was thereafter obtained from a U.S. Magistrate and the inspection was subsequently conducted. As a result of the inspection, the Secretary issued to Electrocast citations alleging numerous violations of certain health and safety standards promulgated under the Act. Electrocast's timely notice contesting the citations caused the Secretary to file a complaint in the matter. The case was then assigned to Judge LaVecchia.

Before the Judge, Electrocast filed a "motion to suppress evidence and dismiss the complaint." As grounds for the motion, Electrocast argued 1) that 8(a) of the Act is unconstitutional; 2) that the Secretary's evidence was obtained by an invalid search warrant issued without probable cause and therefore in violation of the Fourth Amendment; and 3) that the inspection was punitive and unreasonable in violation of the Fourth and Fifth Amendments [*3] and 8(a)(2) of the Act, and the scope of the inspection and citations was in retaliation for Electrocast's exercise of its Fourth Amendment rights in demanding that the Secretary obtain a search warrant before he commenced his inspection. Expanding on its third argument Electrocast complained that after it demanded that the Secretary obtain a search warrant, the Secretary retaliated by 1) converting a "follow-up" inspection into a general inspection; 2) increasing the number of inspectors from one to three, and 3) conducting a week-long inspection which resulted in a host of nonserious, nitpicking citations.

On January 9, 1978, Judge LaVecchia denied the motion in its entirety, noting that neither the Commission nor its judges have the authority to rule on the constitutionality of the Act. In denying the motion the Judge did not address Electrocast's argument that the Secretary's manner of inspection violated 8(a)(2) of the Act.

Pursuant to Rule 75(a) of the Commission's Rules of Procedure, Electrocast then requested special permission from the Commission to appeal the Judge's ruling. n2 The Commission denied this request for interlocutory appeal on February 2, 1978. At that [*4] time, however, the Commission was not aware that the Judge had already certified his ruling for interlocutory appeal pursuant to Rule 75(c), under which appeal is then allowed "as of right." n3 Accordingly, the case is before the Commission pursuant to Rule 75(c).

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n2 Rule 75(a), 29 C.F.R. 2200.75(a), states in part:

Unless expressly authorized by these rules, rulings by the Judge may not be appealed directly to the Commission except by its special permission. . . .

n3 Rule 75(c), 29 C.F.R. 2200.75(c) states in part:

Interlocutory appeals from a ruling of the Judge shall be allowed as of right where the Judge certifies that (1) the ruling involves an important question of law concrning which there is substantial ground for difference of opinion; and (2) an immediate appeal from the ruling will materially expedite the proceedings. . . .

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In its request for special permission to appeal, Electrocast withdrew as grounds for its appeal the contention that 8(a) is unconstitutional. It continued to maintain, however, [*5] that the search warrant was issued in violation of the Fourth Amendment and that the actions of the Secretary's agents were a gross infringement of civil liberties in violation of 8(a)(2) of the Act and the Fourth and Fifth Amendments. Respondent moreover specifically asked for a hearing on the evidentiary matters raised in its original motion to the Judge, except those involving the constitutionality of the Act.

Initially we note that it is not within our authority to rule on the validity of a search warrant issued by a U.S. Magistrate. n4 The Commission is a creature of the Congress and may proceed only in accordance with its delegated powers, which do not include authority to review the actions of a U.S. Magistrate. See Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD para. 21,470 (No. 6031, 1977), appeal docketed, No. 77-3157 (6th Cir., March 16, 1977). Thus, we are left only with the contention that the Secretary's manner of inspection violated 8(a)(2) of the Act. n5

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n4 We also note that the Commission has no authority to rule on the constitutionaltiy of 8(a). Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), appeal docketed, No. 76-1467 (5th Cir., Feb. 19, 1976).

n5 Electrocast's allegation that the inspection violated the Fourth and Fifth Amendments because it was conducted in an unreasonable and punitive manner is necessarily included in its claim that the inspection violated the reasonableness requirement of 8(a)(2). For if the Secretary complied with 8(a)(2) by conducting the inspection within reasonable limits and in a reasonable manner, it cannot be said that the inspection violated the Fourth and Fifth Amendments based on this allegation.

[*6]

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Section 8(a)(2) requires the Secretary to conduct inspections "within reasonable limits and in a reasonable manner." Supra note 1. Electrocast contends that the Secretary violated the requirements of 8(a)(2) by inspecting its worksite in a punitive and unreasonable manner. The Judge did not hold a hearing or rule on the merits of Electrocast's harassment claim. In the absence of a factual record we decline to consider whether Electrocast's allegations, if proven, provide an appropriate reason for suppression of evidence. Atlantic Marine, Inc. v. OSHRC and Dunlop, 524 F.2d 476 (5th Cir. 1975). We will therefore remand for a hearing both on the merits of the alleged violations and on Electrocast's claim that the inspection violated 8(a)(2). Electrocast should produce any evidence bearing on its claim, including but not limited to any evidence which would tend to establish that the alleged violation of 8(a)(2) resulted in actual prejudice to the preparation or presentation of its defenses to the merits of the citation. See Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th [*7] Cir. 1977); Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327 (9th Cir. 1977); Accu-Namics, Inc. v. OSAHRC, 515 F.2d 828 (5th Cir. 1975); Able Contractors, Inc., 77 OSAHRC 184/A2, 5 BNA OSHC 1975, 1977-78 CCH OSHD para. 22,250 (No. 12931, 1977).

Accordingly, the case is remanded for further proceedings consistent with this decision.