TRIANGLE TANNING CO.  

OSHRC Docket No. 78-1529

Occupational Safety and Health Review Commission

June 5, 1981

  [*1]  

Before: CLEARY and COTTINE, Commissioners.  

COUNSEL:

Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Michael Toomin, and Philip Toomin, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge John J. Morris is before the Commission for review pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   In his decision, the judge observed that, under then controlling precedent, the Commission lacked jurisdiction to rule on the validity of a search warrant issued by a U.S. Magistrate.   The judge therefore concluded that he could not consider the motion filed by Respondent, Triangle Tanning Company, to quash the search warrant and suppress the evidence obtained by the Secretary of Labor ("the Secretary") during a search of Respondent's manufacturing facility.   Nevertheless, Judge Morris, after noting the apparent trend of the case law, made an alternative finding that, if the Commission did have the authority to rule on the validity of the search warrant, he then would deny Respondent's motion. n1

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n1 Judge Morris correctly anticipated our subsequent holdings, relating to the Commission's authority to suppress evidence obtained under a warrant, in Chromalloy American Corp., 79 OSAHRC 55/D11, 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979), and Sarasota Concrete Co., 81 OSAHRC    , 9 BNA OSHC 1608, 1981 CCH OSHD P25,360 (No. 78-5264, 1981).

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Respondent subsequently filed a petition for discretionary review of the judge's decision, and Commissioner Cottine directed review on all of the issues raised by Respondent's petition, including the following:

(1) Whether the Administrative Law Judge erred in concluding that the Review Commission is without authority to rule upon the validity of an inspection warrant issued by a U.S. Magistrate.

(2) Whether the Administrative Law Judge erred in denying Respondent's motion to quash the inspection warrant based on the consideration of facts not presented to the issuing Magistrate.

(3) Whether the search warrant issued in this case was supported by probable cause.

In response to this direction for review, the Secretary   [*3]   filed a brief in which he argued, among other things, that the exclusionary rule should not be applied as a remedy in a case such as this, involving an inspection which was conducted prior to the announcement of the United States Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). We agree with this contention and conclude that it is dispositive of the principal issue on review, i. e., whether the judge erred in denying Respondent's motion to quash the warrant and suppress the evidence.   Accordingly, we need not reach the other specific issues in the direction for review.

II

Prior to the Supreme Court's decision in Barlow's, the Commission refrained from reviewing fourth amendment challenges to the validity of OSHA inspection warrants because it lacked authority to rule on the constitutionality of section 8(a) of the Act, 29 U.S.C. §   657(a).   E.g., Electrocast Steel Foundry, Inc., 78 OSAHRC 34/B7, 6 BNA OSHC 1562, 1978 CCH OSHD P22,702 (No. 77-3170, 1978).   With its holding in Barlow's that the Act's inspection provision is unconstitutional to the extent that it purports to authorize warrantless inspections without the consent [*4]   of the employer, the Court removed any impediment to Commission determination of inspection challenges.   Accordingly, in Chromalloy American Corp., 79 OSAHRC 55/D11, 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979), the Commission asserted its authority to consider a constitutional challenge to an inspection, specifically an inspection warrant. See Babcock and Wilcox Co. v. Marshall & OSHRC, 610 F.2d 1128 (3rd Cir. 1979). Nevertheless, this authority will only be exercised in cases involving inspections which took place after May 23, 1978, when the Supreme Court issued its Barlow's decision.   See Meadows Industries, Inc., 79 OSAHRC 74/F2, 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979).   Whether a search was conducted with a warrant, as here, or without a warrant, as in Meadows, has no bearing on the Commission's decision not to retroactively afford a remedy for constitutional violations that may have occurred during inspections which predated Barlow's. The inspection in this case took place two months before Barlow's was announced.   Therefore, Respondent is not entitled to exclusion of the evidence.   Poughkeepsie Yacht    [*5]   Club, Inc., 79 OSAHRC 77/D4, 7 BNA OSHC 1725, 1979 CCH OSHD P23,888 (No. 76-4026, 1979).

Accordingly, we affirm the judge's denial of Respondent's motion to quash the search warrant and to suppress evidence.

SO ORDERED.