KECO INDUSTRIES, INC.  

OSHRC Docket No. 78-661

Occupational Safety and Health Review Commission

December 19, 1979

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert G. Adair, Keco Industries, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Charles K. Chaplin is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   In his decision, Judge Chaplin granted the respondent's motion to suppress evidence, vacate the citations and dismiss the complaint.

Neither party petitioned for review of the judge's decision.   Commissioner Cottine, pursuant to 29 C.F.R. §   2200.91a(a), sua sponte directed review.   In response to the direction for review, the Secretary, who is charged with the Act's enforcement in the first instance, filed a position letter stating that "the judge's decision should be summarily affirmed." In response to the Secretary's position letter, the respondent filed a letter with the Commission inviting expeditious resolution of the case "[i]n view of the unanimity between the parties, . . . ." We find, therefore, that there is an apparent [*2]   lack of party interest in having this case reviewed. n1

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n1 Prior to the filing of the Secretary's position letter, the respondent had filed a brief in support of the judge's decision.   In any event, the filing of a brief by the nonaggrieved party does not affect our decision not to review the case.   See Trans World Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979).

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Accordingly, we decline to pass upon the issues directed for review or any other aspect of the judge's disposition in view of the absence of a compelling public interest and we affirm the judge's decision without review.   Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Crane Company, 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD P20,508 (No. 3336, 1976).   The judge's decision is accorded the precedential value of an unreviewed judge's decision.   Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090,   [*3]   1976) appeal withdrawn, No. 76-4070 (2d Cir., May 17, 1976).   IT IS SO ORDERED.  

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

My colleagues' decision not to review this case has far-reaching consequences with respect to the Commission's appellate jurisdiction over enforcement adjudications under the Occupational Safety and Health Act, 29 U.S.C. § §   651-678.   Admittedly the parties in this case have demonstrated no interest in Commission review.   However, the absence of party interest is not entirely determinative of a Commissioner's decision to direct review of a case or the Commission's responsibility to hear and consider that case. n1 Separate and distinct from a determination of party interest, compelling public interest is a critical consideration to be independently determined. n2

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n1 See Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).

The Commission has also recognized that the "public interest" represented by the Secretary does not always coincide with the interests of the persons intended to be protected by the Act.   IMC Chemical Group, Inc., 79 OSAHRC 35/A2, 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978).   Cf. Trbovich v. United Mine Workers of America, 404 U.S. 528 (1968). In the context of approving a settlement agreement by the parties in a case, the Commission considers whether the settlement is consistent with the "intent of the Act and the public interest." Kaiser Aluminum and Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD P23,200 (No. 76-2293, 1978).   See also Trans World Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979) (Commissioner Cottine, dissenting) (public interest in uniformity of adjudications under the Act compels deferral of decision pending issuance of decision in related case); Cargill, Inc., 79 OSAHRC    , 7 BNA OSHC    , 1979 CCH OSHD P23,981 (Nos. 78-2862 & 78-2864, 1979) (Commissioner Cottine, concurring) (compelling public interest not presented by several substantive issues involving a general duty clause violation).

n2 In Francisco Tower Service, Inc., 76 OSAHRC 89/D3, 4 BNA OSHC 1459, 1976-77 CCH OSHD P20,917 (No. 8128, 1976), a majority of the Commission held that the Commission will decline to review the merits of a case where: "(a) neither party has filed exceptions to the judge's decision, (b) the decision is ordered for review by a Commissioner on his own motion, (c) the party not aggrieved by the decision filed no brief or a brief urging affirmance of the judge's decision, (d) the party aggrieved by the decision files no brief, and (e) there is an absence of any compelling public interest." (Emphasis added.) Clearly, the Commission's criteria for review distinguish compelling public interest from party interest and, consequently, independent consideration of these factors is required.

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Without any elaboration, the majority summarily concludes that the issues presented by this case and encompassed by my direction for review are without any compelling public interest. However, a conscientious examination of the record reveals that this conclusion is totally unsupportable.

I

In response to an employee complaint, the Secretary attempted to conduct an inspection of the respondent's workplace in October, 1977.   When the respondent refused to permit an inspection, the Secretary obtained an inspection warrant from a United States Magistrate.   The Secretary served the respondent with the warrant but the respondent again refused to permit the inspection. Rather than initiate contempt proceedings in district court, the Secretary attempted to negotiate a consensual entry to the respondent's workplace. The parties met to discuss the conditions for the inspection, including restrictions on its scope.   Based on the present record, the parties apparently agreed to an inspection that would be confined to the conditions listed in the employee complaint.   Following these discussions, the Secretary [*5]   commenced his compliance inspection on January 10, 1978.   However, the return date specified in the warrant (November 22, 1977) had passed by that time.

As a result of the inspection, conducted from January 10 to 12, 1978, the Secretary issued citations alleging one serious, two willful, and two other violations of the Act and proposed penalties totalling $14,800.   The serious citation alleged a failure to properly guard machinery as required by the standard at 29 C.F.R. §   1910.212(a)(1) and the willful citations alleged point of operation hazards in contravention of the standards at 29 C.F.R. §   1910.212(a)(3)(ii) and 29 C.F.R. §   1910.217(c)(2)(i)(b).   None of the citations pertained to the conditions mentioned in the employee complaint. n3

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n3 The employee complaint alleged a safety hazard involving electricity and a potential lung disorder due to Freon gas.

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The respondent contested all the citations and proposed penalties. See section 10 of the Act, 29 U.S.C. §   659. After the case was docketed the respondent [*6]   moved to suppress evidence, vacate the citations and dismiss the complaint.   On July 25, 1978, a hearing was held on the respondent's motion.   In a written order, the administrative law judge granted the motion.   The decision was based on the following conclusions: (1) the Secretary had conducted a warrantless inspection because the warrant in this case expired prior to the inspection; n4 (2) the inspection exceeded the scope of consent given by the respondent and the cited violations were not within plain view from the consented area; and (3) entry by the Secretary was procured through "trickery, fraud or misrepresentation" which vitiated te responden's consent to the inspection. In support of this last conclusion, the judge found that the Secretary never intended to restrict the inspection to those areas apparently agreed to by the parties.

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n4 The judge expressly declined to rule on the validity of the warrant stating that the determination of that issue was exclusively within the authority of the United States courts.   Contra, The Babcock and Wilcox Co. v. Marshall, et al,    F.2d    (3d Cir., November 16, 1979); Chromalloy American Corp., 79 OSAHRC    , 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979).   His decision was based solely on the observation that the return date specified in the warrant had expired prior to the Secretary's inspection of respondent's workplace.

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II

The record in this case presents several issues of compelling public interest. In Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), the Supreme Court ruled that section 8(a) of the Act, 29 U.S.C. §   657(a), n5 is violative of the fourth amendment to the extent that it purports to authorize warrantless inspections. In this case the respondent, like the employer in Barlow's, exercised fourth amendment rights in first denying a warrantless entry.   Moreover, in both cases the Secretary responded to the denial of entry by obtaining a warrant.   However, in Barlow's the employer moved to quash the warrant in the United States district court.   In contrast to Barlow's this respondent ultimately consented to a limited inspection and later challenged the propriety of that inspection before the Review Commission in the context of a contest of the citations issued by the Secretary. n6

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n5 Section 8(a), 29 U.S.C. §   657(a) provides:

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 and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

n6 See generally Chromalloy American Corp., 79 OSAHRC    , 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979).

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This Commission recently held that the exclusionary rule will not be available as a remedy under the fourth amendment when a respondent seeks to suppress evidence obtained as a result of a warrantless inspection conducted prior to the Supreme Court's decision in Barlow's. Meadows Industries, Inc., 79 OSAHRC    , 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979).   Read in conjunction with past Commission rulings limiting the scope of Commission review under section 8(a) of the Act to violations of the fourth amendment, n7 Meadows would seem to preclude any review of the Secretary's exercise of inspection authority under either the Constitution or the statute.   If complete preclusion of review is to be implied from Meadows, then the judge erred by applying the exclusionary rule in this case.   Conversely, if the respondent is entitled to this form of relief in a pre-Barlow's inspection that exceeds the consent obtained by the Secretary following the presentation of a warrant, then this exception to the Meadow's holding must be articulated by the Commission.   These important [*9]   issues of first impression alone should be sufficient justification for Commission consideration of this case.   Rather than leave the parties at the peril of their own interpretation of these cases, the Commission has an obligation to provide timely guidance when this issue can be properly resolved in the context of a pending case.

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n7 In Environmental Utilities Corporation, the Commission held that it "would not provide a remedy for failure to comply with section 8(a) unless the noncompliance violates the Fourth Amendment." 77 OSAHRC 40/A2, 5 BNA OSHC 1195, 1197, 1977-78 CCH OSHD P21,709 at p. 26,074 (No. 5324, 1977); see also Western Waterproofing Co., Inc., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD P20,805 (No. 1087, 1976), reversed and remanded on other grounds, 560 F.2d 947 (8th Cir. 1977).

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This case also presents several issues concerning the interrelation of a judicial warrant to inspection procedures, including the effect of employer consent on the scope of an inspection and the appropriate [*10]   application of the "plain view" doctrine. n8 These critical issues involving the substantive law of inspections and the extension of appropriate relief to the parties are left unresolved by the majority.

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n8 See generally Rothstein, OSHA Inspections after Marshall v. Barlow's, Inc., 1979 Duke L.J. 63, 88-89 & nn. 156-210 (discussing issues and cases).

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III

My colleagues' conclusion that this case fails to present any issues of compelling public interest is also irreconcilable with the Commission's recent holding that it has jurisdiction to hear and determine challenges to inspection warrants. Chromalloy American Corp., 79 OSAHRC    , 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979).   In Chromalloy, the Commission found that the Supreme Court's decision in Barlow's "placed the Commission in a posture where it is now clearly competent to address the inspection warrant issues." n9 The ruling by the Third Circuit Court of Appeals in Babcock & Wilcox, supra, at note 4, affirms [*11]   the Commission's delineation of authority in Chromalloy. In fact, the court declared that exhaustion of administrative remedies requires resort to the Review Commission for initial presentation of fourth amendment claims. n10 In its decision, the court cogently assessed the Commission's function by observing:

To balance the need for "swift issuance of abatement orders to protect employees endangered by the conditions of their work" with the requirement of due process to employer and employee alike, the Review Commission was established to carry out the Act's adjudicatory functions. n11

Id. slip op. at 24-25.   In refusing to review this case my colleagues abandon this statutory responsibility.

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n9 Prior to its decision in Chromalloy, the Commission declined to consider challenges to warrants because it believed that to do so the Commission would first have to pass on the constitutionality of 29 U.S.C. §   657(a) which authorized warrantless searches.   See Electrocast Steel Foundry, Inc., 78 OSAHRC 34/B7, 6 BNA OSHC 1562, 1978 CCH OSHD P22,702 (No. 77-3170, 1978).

n10 Earlier Circuit Court opinions were divided on this issue.   Compare In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979) (exhaustion of administrative remedies required): In re Inspection of Central Mine Equipment Co., No. 79-1251 (8th Cir. Nov. 5, 1979) (exhaustion required); with Weyerhauser Co. v. Marshall, 592 F.2d 373 (7th Cir. 1979) (exhaustion not required).   The judicial decision in Babcock & Wilcox, however, is the first since the Commission's ruling in Chromalloy.

n11 Citing In re Restland Memorial Park, 540 F.2d 626, n. 14 (3d Cir. 1976).

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IV

Fundamental issues regarding the appellate jurisdiction of the Commission are also created by my colleagues' summary action in this case.   Their action signals the utilization of improper administrative limitations on the authority of a Commissioner to direct a case for review.   See 29 U.S.C. §   661(i).   This authority is statutorily reserved to the exclusive discretion of the individual Commissioner. n12

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n12 This statutory reservation of authority follows the appellate principle that less than a majority decide to hear an appeal in order to avoid any implication of prejudgment.   See, e.g., Section 113(d)(2)(B), Federal Mine Safety and Health Act of 1977, 30 U.S.C. §   823(d)(2)(B) (1978).

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In Francisco Tower Service, Inc., 76 OSAHRC 11/A2, 3 BNA OSHC 1952, 1975-76 CCH OSHD P20,401 (No. 4845, 1976), restrictions on the authority to direct review were initiated in response to issueless directions for review where neither [*13]   party sought review of the case.   In Francisco Tower, Mr. Cleary and Mr. Barnako cautioned that "our action here should not be interpreted as barring sua sponte orders of review by [Commission members]." 3 BNA OSHC at 1955, 1975-76 CCH OSHD at p. 24,340. This caution was statutorily required in order to avoid a violation of the statutory reservation of authority to each Commissioner.

The direction for review in this case specified three issues for consideration. n13 Cognizant that neither party to this case sought review, I nevertheless ordered review.   That neither Mr. Cleary nor Mr. Barnako directed review indicates that either they did not consider the issues presented by this case to be compelling or that they concurred in my judgment.   However, section 12(j) of the Act reserves to each Commissioner the authority to independently evaluate the issues raised by the record and to exercise his individual discretion to direct review of a case.   Moreover, section 12(j) does not provide for the individual Commissioner's exercise of discretion and its underlying evaluation of the issues to be subjected to full Commission review.   Any reconsideration of whether the case continues [*14]   to present issues of compelling public interest is necessarily reserved to the Commissioner who directed the case for review. n14 Consistent with the statutory reservation of discretion in section 12(j), reconsideration is not properly imposed by a majority of the Commission.   Thus, my colleagues' action is nothing less than an attempt to deny one Commissioner his statutory right to specifically direct cases for review and to expect Commission review of that case.   Fortunately, the statute anticipated the possibility of majoritarian expedience and precluded its operation by an express statutory delegation of authority to each Commissioner.

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n13 Under section 12(j) of the Act, 29 U.S.C. §   661(i), I exercised my authority as a member of the Commission to direct review of this case.   In that direction for review, I specified the following issues:

(1) Whether the ALJ erred in granting the respondent's motion to suppress evidence, dismiss the complaint and vacate the citations on the grounds that the Secretary gained entry into the respondent's workplace by fraud and deceit and the evidence obtained during the inspection was illegally obtained.

(2) Whether the inspection of the respondent's workplace exceeded the scope of consent to the inspection given by the respondent.

(3) If the inspection exceeded the scope of consent, whether the suppression of evidence obtained during the inspection and vacation of the citations are appropriate remedies.

n14 It has been my practice not to sign a summary affirmance order in a case directed by one of my colleagues until I have ascertained that the Commissioner who directed the case has signed or will sign the order.   My practice is to carefully consider my colleague's decision in evaluating whether the case involves issues of compelling public interest. However, this consideration also includes a review of my notes on the case to determine if I would have directed the case but for my colleague's earlier direction for review.

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Compelling public interest is a crucial barrier to those who would rush to judgment for the sake of expedience.   It is an assurance to the public that the Commission will perform its essential obligation to supervise the enforcement of the Act.   See generally Babcock & Wilcox, supra at 24-25.   Moreover, compelling public interest plays a vital role in the satisfaction of the Commission's statutory responsibility to develop and integrate a national body of occupational safety and health law.   S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979).   That responsibility cannot be reconciled with my colleagues' failure to review this case.