SECRETARY OF LABOR,
Complainant,

v.

SYNKOTE PAINT COMPANY,
Respondent,

SECRETARY OF LABOR,
Complainant,

v.

KDK UPSET FORGING COMPANY,
Respondent.

OSHRC Docket No. 83-0002

OSHRC Docket No. 83-0152

_DECISION
_
BEFORE: Buckley, Chairman; Rader and Wall, Commissioners.
BY THE COMMISSION:

These consolidated cases[[1]] are before the Occupational Safety and
Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the
Act"). The Commission is an adjudicatory agency, independent of the
Department of Labor and the Occupational Safety and Health
Administration ("OSHA"). It was established to resolve disputes arising
out of enforcement actions brought by "the Secretary of Labor under the
Act and has no regulatory function. See section 10(c) of the Act, 29
U.S.C. § 659(c).

Each Respondent challenges the validity of a warrant authorizing an
inspection of its worksite. Both Respondents, who are represented by the
same counsel, filed motions for summary judgment and for suppression of
evidence on essentially identical grounds. Both Administrative Law Judge
David G. Oringer in docket no. 83-2, Synkote Paint Company ("Synkote"),
and Judge Edward A. Bobrick in docket no. 83-152, KDK Upset Forging
Company ("KDK"), denied these motions. Thereafter, Synkote and KDK both
entered into an "agreed statement of facts" in which each stipulated
that it had violated the Act as alleged but also "incorporate[d] by
reference" its "prior controversy over the validity of the underlying
warrant." In accordance with the stipulations, each judge then issued a
dispositive order affirming the Secretary's citation or citations.[[2]]
For the reasons stated below, we affirm the judges' decisions.

I.

On September 14, 1982, the Secretary applied for a warrant to inspect
Synkote's worksite based on the provisions of OSHA Instruction CPL
2.258, entitled "Scheduling System for Programmed Inspections,"[[3]]
pertaining to the inspection of employers in industries having "high
potential employee exposures to dangerous substances." CPL 2.25B,
section 1.2.a. An affidavit accompanying the warrant application stated,

With respect to the present inspection which OSHA seeks to perform, the
determination was first made, consistent with the area office's annual
projections, to perform a programmed inspection in the general industry
(health) category. As set forth more fully in Appendix A of the
Instruction, scheduling for general industry (health) is based on OSHA's
Health Inspection Plan (HIP)....The HIP combines available data on
selected substances previously reported as being found in each industry
by [the National Institute for Occupational Safety and Health], the
number of employees potentially exposed to these substances, and the
severity of potential adverse health effects....

This employer is believed to be engaged in manufacturing of paints,
lacquers, and chemical coatings, SIC [Standard Industrial
Classification] number 2851, which is included in the current Industry
Priority List for the State of New Jersey.

The establishment is believed to be involved in the manufacturing
process of paint, lacquers and chemical coatings, dumping, mixing,
filling and labeling. Health hazards associated with associated with
these operations may include: exposure to metal pigments [sic] and dust
(lead, chromates [,] silica, solvent vapors, and aromatic hydrocarbons).

Although the basis for the warrant application was the Secretary's
administrative plan for scheduling health inspections, the warrant
application itself requested a warrant to conduct an inspection of
employer's entire establishment:

4. The inspection and investigation will extend to the establishment or
other area where work is performed by employees of the employer...and to
all pertinent conditions, structures, machines, apparatus, devices,
equipment, materials, and all other things therein...bearing on whether
this employer is furnishing to its employees employment and a place of
employment which are free from recognized hazards that are causing or
are likely to cause death or serious physical harm to its employees, and
whether this employer is complying with the Occupational Safety and
Health Standards promulgated under the Act and the rules, regulations
and orders issued pursuant to the Act.

A magistrate of the United States District Court for the District of New
Jersey concluded that the Secretary had shown "an administrative plan
containing specific neutral criteria" for an inspection under the Act,
and on September 28, 1982 issued a warrant authorizing an inspection of
the scope requested in the Secretary's application.

The Secretary's application for a warrant to inspect KDK stated that it
was based on the provisions of OSHA Instruction CPL 2.25C[[4]] regarding
the selection of establishments for safety inspections. According to the
application,

[S]cheduling of inspections within the general industry safety category
is based on an inspection register prepared by each OSHA Area Office and
listing all establishments selected for inspection on an annual basis
within the general industry safety category of employment. The
inspection register is compiled from a statewide industry ranking
report, entitled the "High Rate Industry List" and supplied by the
National OSHA office, which lists, by . . . [SIC] numbers, all
industries in the state (except construction and most maritime) which
have lost workday injury rate (LWDI) which equals or exceeds the
national lost workday rate per 100 employees for the private sector . . . .

. . .

. . . KDK Upset Forging Co., Inc. is believed to be engaged in the
manufacture of iron and steel forging, SIC number 3642, which is
included in the current High Rate Industry List for the State of
Illinois due to an industry LWDI rate of 14.6 which exceeds the 1980
national average LWDI rate of 3.9.

The warrant, issued by a magistrate of the United States District Court
for the Northern District of Illinois, stated that application had been
made to conduct a safety inspection:

Sworn application having been made, reasonable legislative and
administrative standards having been prescribed, and probable cause
shown by William H. Tschappat of the Occupational Safety and Health
Administration, United States Department of Labor, for a programmed
general industry safety inspection and investigation of the workplace .
. . .

The warrant went on to order the Secretary

to enter the above described premises during regular working hours or at
other reasonable times, and to inspect and investigate [in a reasonable
manner and to a reasonable extent including but not limited to authority
to take environmental samples and to take or obtain photographs related
to the purpose of the inspection and questioning privately any owner,
operator, agent, employer or employee of the establishment], the
workplace or environment where work is performed by employees of the
employer and all pertinent conditions, structures, machines, apparatus,
devices, equipment, materials and all other therein (including a review
of records required by the Act and other records which are directly
related to the purpose of the inspection - such records do not include
employee medical records as defined by 29 CFR 1910.20(c)(6)) bearing on
whether this employer is furnishing to its employees employment and a
place of employment which are free from recognized hazards that are
causing or are likely to cause death or serious physical injuries to its
employees, and whether this employer is complying with the occupational
safety and health standards promulgated under the Act and the rules,
regulations, and orders issued pursuant to the Act.[[5]]

In their motions for summary judgment both Synkote and KDK contended
that the warrants were invalid because they exceeded the probable cause
basis for their issuance. Synkote contended that the warrant based on
the health inspection provisions of the Secretary's programmed
inspection plan was improper insofar as it authorized an inspection for
safety related violations of 29 U.S.C. § 654(a)(1) and for violations of
occupational safety rather than health standards under § 654(a)(2). KDK
argued that the warrant to inspect its workplace was predicated on a
programmed safety inspection plan and therefore improperly allowed an
inspection of health-related matters as well. On similar grounds both
employers also challenged as overlord the warrants' authority to inspect
for violations of all "rules, regulations and orders."

In opposing the motions for summary judgment and for suppression of
evidence on this ground, the Secretary argued that an inspection cannot
be defined as exclusively a health or exclusively a safety inspection.
Judge Oringer agreed, characterizing any distinction between safety and
health inspections as "artificial" and "not predicated on a legal
foundation." The judge, however, further stated that even assuming
safety and health inspections are sufficiently distinguishable to cause
the warrant in Synkote to be overlord insofar as it authorized a safety
inspection, that portion of the warrant could be severed and the
remainder of the warrant preserved under the principle of "redaction" as
applied in United States v. Christine, 687 F.2d 749 (3d Cir. 1982).
Stating that the Secretary had cited Synkote only for "health
violations," Judge Oringer concluded that in the absence of any
violations of a safety nature, there was no evidence arising from the
challenged portion of the warrant to be suppressed. Judge Bobrick, in
KDK, reasoned that he could not consider whether the warrant was
supported by probable cause because he lacked authority to review the
magistrate's determination that probable cause existed. He further found
no evidence that the inspection under the warrant was broader than the
terms of the warrant application.

On review Synkote and KDK contend that the judges erred in disregarding
clear differences between an inspection for safety-related violations
and an inspection pertaining to health matters. Both argue that probable
cause to conduct an inspection for one type of violation does not
constitute probable cause to inspect for the other type. Synkote
contends as well that Judge Oringer erred in applying the principle of
"redaction." In Synkote's view, allowing a partially invalid warrant to
be severed and upheld in part subverts its fourth amendment right to be
protected from unreasonable inspections and reduces the deterrent value
of the exclusionary rule. Synkote also contends that redaction is not
appropriate in civil proceedings such as those conducted before the
Commission.[[6]]

Assuming the warrants are overbroad as the employers contend, the
Secretary emphasizes that neither employer was cited for a violation of
section 5(a) of the Act beyond each warrant's probable cause basis.
Contending that the function of the Commission in review of challenges
to warrants is not to examine the validity of the warrant issued by the
magistrate but rather to decide whether to admit the evidence obtained
through the execution of the warrant, the Secretary argues that there is
no evidence arising from any invalid portion of either warrant to be
suppressed in these proceedings. Alternatively, the Secretary contends
that under the redaction rule suppression of any evidence obtained
pursuant to overbroad portions of the warrants does not require
suppression of evidence for which probable cause did exist.

The Secretary finally argues that the exclusionary rule should not be
applied in Commission proceedings even if evidence has been improperly
obtained. If, however, the rule is appropriate, the Secretary urges the
Commission to recognize a good faith exception, citing United States v.
Leon, 104 S. Ct. 3405 (1984). Synkote and KDK argue that for a number of
reasons the Commission should adhere to its prior decision in Sarasota
Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ¶ 25,360
(No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982), in which the
Commission ruled that the exclusionary rule applies and that the issue
before it is not the Secretary's good faith but whether the Secretary
acted properly under the fourth amendment in obtaining the evidence in
question. In any event, Synkote and KDK contend that the Secretary did
not act in good faith in the circumstances presented here.


II.

In Marshall v. Barlow's, Inc., 436 U.S. 307, 321 (1978), the Court
stated that probable cause for an inspection warrant could be based on
"a general administrative plan for the enforcement of the Act derived
from neutral sources." Since Barlow's, the Secretary has formulated a
number of administrative plans for scheduling programmed inspections of
employers, including the enforcement directives that are the basis for
the present warrants. In prescribing these selection procedures, the
Secretary distinguished between matters pertaining to occupational
safety and those pertaining to occupational health as a basis for
inspection. Health and safety are addressed in separate and distinct
sections of each directive, and substantially different methodologies
are employed in the selection process.[[7]]

KDK and Synkote assert that the warrants in these cases were overbroad
because the Secretary failed to specifically tailor the scope of the
warrants he sought to the probable cause basis for their issuance. The
employers contend that the Secretary improperly sought warrants to
conduct full-scope inspections encompassing both safety and health,
based on probably cause to conduct only a safety inspection in KDK and
only a health inspection in Synkote.[[8]]

KDK's argument fails at the outset, for the warrant in that case can
most reasonably be read to authorize only a safety inspection. The
warrant specifically stated that the Secretary had shown probable cause
"for a programmed general industry safety inspection...." (Emphasis
added.) If it is true, as KDK argues, that the scope of an inspection
permitted by a warrant must reflect the probable cause basis underlying
its issuance, then this language provided clear notice that the warrant
does not suggest that it authorizes a full-scope health inspection as
well as full-scope safety inspection. It is highly significant that the
warrant did not authorize the Secretary to conduct personal sampling, a
common procedure in health inspections.[[9]] Donovan v. Wollaston
Alloys, Inc., 695 F.2d 1, 7 (1st Cir. 1982); see also Donovan v.
Wollaston Alloys, Inc., 543 F. Supp. 53 (M.D. Pa. 1981). Similarly it
did not permit a review of medical records. The warrant did authorize
the Secretary to "take environmental samples," but such samples can
relate to safety hazards as well as health hazards,[[10]] so this
provision does not imply that the warrant authorizes more than a full-
scope safety inspection.

The only explicit reference to "health" in the warrant is the
authorization to determine "whether this employer is complying with the
occupational safety and health standards promulgated under the Act . . .
." The Act, however, uses the phrase "occupational safety and health
standard" as a term of art,[[11]] and logically, its inclusion in the
warrant was simply a recitation of the statutory phrase rather than
substantive authorization to conduct a health inspection as well as
safety inspection. In any event, the specific reference to a safety
inspection in the first paragraph of the warrant defines the objectives
and limits of the inspection. See Donovan v. Wollaston Alloys, 695 F.2d
at 7 (statement in warrant that inspection will cover employer's
compliance with "occupational safety and health standards" does not
expand scope of warrant beyond safety inspection when other material in
warrant stated that inspection was so limited.)

Nor are we confronted here with an inspection that exceeded the scope of
the warrant. KDK has neither alleged nor argued that the actual
inspection went beyond safety. Also, there is no evidence that this was
the case.

Synkote presents a different situation. The warrant in that case
authorized a broad-scope inspection with no language indicating it was
limited to a health inspection. Nevertheless, for the reasons that
follow, we conclude that suppression of evidence would not be appropriate.

In Chairman Buckley's view, the Commission, as an agency within the
executive branch, has no authority to review the actions of a judicial
officer of a court created under Article III of the Constitution. E.g.,
Phoenix Forging Co., 85 OSAHRC ____, 12 BNA OSHC 1317, 1319, 1985 CCH
OSHD ¶ 27,256 (No. 82-398,1985) (view of Chairman Buckley) and cases
cited therein. To entertain the argument by Synkote that provisions of
the warrant were not supported by probable cause and were overbroad
would require the Commission to review the magistrate's judgments that
warrants of a particular scope should issue. Chairman Buckley believes
that the Commission may not consider these arguments.

The Commission may, however, consider a motion to suppress evidence
based on other grounds. Under its supervisory authority over the Act's
enforcement, the Commission may impose appropriate sanctions on the
Secretary to deter misconduct by OSHA employees. Phoenix Forging, 12 BNA
OSHC at 1320, 1985 CCH OSHD at p. 35,211-12. Evidence unlawfully
gathered by OSHA may be suppressed where such a remedy can reasonably be
expected to deter similar misconduct by OSHA in the future. This may
occur where OSHA's warrant application contains false or misleading
statements to induce the magistrate to find probable cause, or where
OSHA gathers evidence during an inspection unlawfully by, for example,
exceeding the scope of the inspection stated in the warrant. See Brooks
Woolen Co., 85 OSAHRC _____, 12 BNA OSHC 1233, 1234, 1236-37, 1985 CCH
OSHD ¶ 27,233, pp. 35,148, 35,151-52 (Nos. 79-45 and 79-128, 1985) (view
of Chairman Buckley), aff'd, 782 F.2d 1066 (1st Cir. 1986).

Synkote does not claim that any such misconduct on OSHA's part occurred.
It does not contend that the inspection exceeded the scope permitted by
the warrant. Nor is there any claim that the warrant applications
contained any false information or was designed to mislead the
magistrate in any way.[[12]] Moreover, even if the application exceeded
the scope of OSHA Instruction 2.25B, it cannot be said that the
inspector's act in seeking a broad-scope warrant constituted misconduct
of such a nature as to justify the extreme sanction of suppression of
evidence. The error was not in presenting an application that may have
been broader than regulations authorized. The error was in the
magistrate's failure to limit the warrant. That error cannot be reviewed
by the Commission.[[13]] Chairman Buckley notes, moreover, that even if
there were some reason to consider suppression, there is no evidence in
this case to suppress, as the Secretary has pointed out.

Commissioner Wall notes that the Commission has held that it has the
authority to consider challenges to inspection warrants obtained by the
Secretary. Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981
CCH OSHD ¶ 25,360 (No. 78-5264, 1981), aff'd, 693 F.2d 1061 (11th Cir.
1982). The Eleventh Circuit expressly affirmed the holding in Sarasota
that the Commission can consider such challenges, 693 F.2d at 1066-67,
and a number of other circuits have similarly held that the Commission
is a proper forum for the consideration of fourth amendment issues.
Indeed, the courts generally hold that once the statutory review process
before the Commission has been commenced, any objections to the validity
of a warrant must be raised before the Commission. Robert K. Bell
Enterprises, Inc. v. Donovan, 710 F.2d 673 (10th Cir. 1983), cert.
denied, 464 U.S. 1041 (1984); In re Establishment Inspection of Metal
Bank of America, Inc., 700 F.2d 910 (3d Cir. 1983); In re Inspection of
Central Mine Equipment Co., 608 F.2d 719 (8th Cir. 1979); In re Worksite
Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979). The
courts recognize, as the Secretary correctly notes, 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. Rather, the Commission decides 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. Smith Steel Casting Co. v.
Donovan, 725 F.2d 1032, 1035-1036 (5th Cir. 1984); Sarasota Concrete,
693 F.2d at 1066; Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136-
1137 (3d Cir. 1979).

In Sarasota Concrete, the Commission held that evidence gathered under
an invalid warrant would be suppressed even if the Secretary acted in
good faith in conducting the inspection. 9 BNA OSHC at 1614, 1981 CCH
OSHD at p. 31,533. Since that time, the Supreme Court has held, in a
criminal case, that evidence should not be suppressed if obtained in
objectively reasonable reliance on a subsequently invalidated search
warrant. United States v. Leon, 104 S.Ct. 3405, 3421 (1984). The Court
reasoned that the purpose of the exclusionary rule is to deter official
misconduct in the conduct of inspections and that, when an officer
conducts an inspection in objectively reasonable reliance on a warrant,
there is no misconduct to deter even if the warrant is subsequently held
invalid.

Commissioner Wall believes that this reasoning is equally applicable to
cases before the Commission. The ultimate aim of the exclusionary
rule--to deter official misconduct--is the same in both OSHA and
criminal cases. If anything, warrants should be reviewed less critically
in civil cases. The Supreme Court noted in Barlow's: "Probable cause in
the criminal law sense is not required." 436 U.S. at 319. In a recent
OSHA case, the court said:

The Supreme Court decided in Camara and Barlow's that the requirements
for the issuance of administrative search warrants are more lenient than
for criminal search warrants, in that they require a lesser showing of
probable cause. We have found no authority which suggests that more
restrictive requirements obtain for the issuance of administrative
search warrants than for criminal search warrants.

Donovan v. Enterprise Foundry, 751 F.2d at 36. Accordingly, Commissioner
Wall concludes that the part of Sarasota Concrete declining to recognize
a good faith exception to the exclusionary rule is no longer viable, and
he will not suppress evidence gathered by OSHA inspectors in objectively
reasonable reliance on a search warrant.

Commissioner Wall concludes that the Secretary acted in objectively
reasonable reliance on the warrant in conducting its inspection of
Synkote's workplace. Before the inspection was conducted, Synkote moved
to quash the warrant and a hearing was held in federal district court.
The court rejected Synkote's argument that the warrant application did
not establish probable cause for an inspection and upheld the warrant.
Thus, at the time the Secretary conducted the inspection, Synkote had a
full opportunity to argue the validity of the argument in an adversary
proceeding, and its arguments had been rejected. The Secretary was
therefore justified in believing that the warrant was valid. As the
Supreme Court has said:

Whatever an officer may be required to do when he executes a warrant
without knowing beforehand what items are to be seized, we refuse to
rule that an officer is required to disbelieve a judge who has just
advised him, by word and by action, that the warrant he possesses
authorizes him to conduct the search he has requested.  Massachusetts v.
Sheppard, 104 S.Ct. 3424, 3429, (1984) (footnote omitted). See also
Donovan v. Federal Clearing Die Casting Co., 695 F.2d 1020, 1024-25 (7th
Cir. 1982) (despite invalidity of warrant, evidence will not be
suppressed because secretary acted in reasonable good faith belief that
warrant was valid).

Moreover, the particular overbreadth argument made by Synkote--that the
warrant was overbroad in authorizing a full-scope inspection based on
probable cause for only a health inspection--is not so clearly
meritorious that the Secretary should have recognized that the warrant
was overbroad. Although the Secretary's guidelines established different
criteria for safety and health inspections, they also indicated that
"[a] programmed inspection should generally be a comprehensive
inspection of the establishment with the exception of low hazard areas .
. . . OSHA Instruction CPL 2.25C, Sec. I. Even assuming that the
Secretary may not apply for both a health and safety inspection
predicated on a showing of probable cause based on one part of his
administrative plan, a point we do not reach here, no Commission or
court decision had, at the time of the inspection, indicated that this
was impermissible.[[14]] Indeed, the Commission had apparently endorsed
the practice, saying, albeit in dictum, "[a] plant-wide inspection is
usually permissible when probable cause is established under a general
administrative plan." Sarasota Concrete, 9 BNA OSHC at 1617, 1981 CCH
OSHD at p. 31,536. Thus, the state of the law at the time of the
inspection did not put the Secretary on notice that the warrant might be
overbroad.

Commissioner Wall also notes that Synkote does not claim that the
inspection of its worksite was broader than a health inspection and KDK
does not claim that its inspection went beyond a safety inspection.
Except for the poster and record keeping items in Synkote, the only
citations were for health violations in Synkote and for a safety
violation in KDK. Therefore, even assuming the warrants were overbroad,
the inspections that were actually conducted were within permissible
limits, and the evidence supporting the alleged violations was related
to the probable cause basis for the warrants. In similar circumstances,
the courts of appeals for the circuits in which KDk's and Synkote's
workplaces are located have held that warrants should be redacted and
that only evidence gathered under the overbroad portions of the warrants
should be suppressed. Donovan v. Fall River Foundry Co., 712 F.2d 1103,
1111-12 (7th Cir. 1983); United States v. Christine, 687 F.2d 749 (3d
Cir. 1982) (redaction of criminal warrant consistent with Fourth
Amendment). Commissioner Wall believes that the Commission is bound to
follow the decisions of the courts of appeals in cases within the
jurisdiction of those courts and, on this basis, would redact the
warrants in these cases by striking out the provisions permitting the
Secretary to conduct a health inspection in KDK and a safety inspection
in Synkote. With the warrants thus modified, all of the evidence
relevant to the alleged violations was gathered under the valid portions
of the warrants, and there is no basis to suppress that evidence.

III.

KDK and Synkote argue that the warrants were invalid for a number of
other reasons. We find that none of these arguments provides any basis
to suppress evidence in these case. The employers contend that
provisions in the warrants permitting inspection of records are invalid
because the Act does not provide for inspection of records pursuant to a
warrant. The Commission has previously rejected this argument with
respect to records employers are required to maintain under the Act, and
we adhere to that precedent. Thermal Reduction Corp.,85 OSAHRC ____, 12
BNA OSHC 1264, 1985 CCH OSHD ¶ 27,248 (No. 81-2135, 1985). Thus, the
provisions of the warrants authorizing inspection of records required by
the Act were valid.

The employers further argue that the warrants invalidity authorized the
inspection of records beyond those required to be kept under the Act.
Chairman Buckley would not consider the argument because it questions
the magistrates' decisions to issue the warrants. Phoenix Forging, 12
BNA OSHC at 1319, 1985 CCH OSHD at p. 35,211. Commissioner Wall does not
believe it is necessary to decide the issue. The employers do not claim
that the Secretary actually sought to inspect any records beyond those
required to be kept under the Act. Therefore, even if the records
inspection provisions were overbroad, the inspections that were actually
conducted were within permissible limits. Again applying the doctrine of
redaction, as discussed above, there is no invalidity obtained evidence
to suppress. Donovan v. Wollaston Alloys, 695 F.2d at 8.

Chairman Buckley and Commissioner Wall join in rejecting KDK's and
Synkote's arguments that the provisions of the warrants authorizing
employee interviews are invalid and that the warrants are invalid
because the Secretary's enforcement directives were not published in the
Federal Register. The Commission previously rejected both arguments in
Phoenix Forging, 12 BNA OSHC at 1320-24, 1985 CCH OSHD at pp. 35,212-16.

Accordingly, the judges' decisions are affirmed.


FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary


DATE: AUG 27 1986


RADER, Commissioner, concurring in part and dissenting in part:

As the majority opinion points out, the Secretary has two administrative
inspection plans for scheduling OSHA inspections. He has one plan for
scheduling health inspections and another, different plan for scheduling
safety inspections. Establishments are selected for inspections under
the health plan based on the potential use of hazardous substances, such
as carcinogens. Under the safety plan establishments are selected for
inspections based on their accident rate. The Secretary's program
directives, Field Operations Manual and Industrial Hygiene Technical
Manual make it clear that health inspections and safety inspections are
very different. They are scheduled differently and the method of
inspection and effect on the workplace is different. The Secretary's
compliance personnel are well aware of the difference between a safety
and a health inspection.

Here, the Secretary applied for a warrant to inspect Synkote based on
his plan for scheduling health inspections of employers in industries
where employees may be exposed to hazardous substances. Conversely, the
application for a warrant to inspect KDK was predicated on the
Secretary's plan for conducting safety or physical hazard inspections in
industries having a certain injury rate. In both cases, however, the
warrants requested and issued were the same; they authorized in
virtually identical language an inspection of the entirety of each
employer's establishment for both safety and health. Each warrant
authorized the inspection to extend to any relevant matter bearing on
whether the employer was furnishing a workplace free from recognized
hazards and whether the employer was in compliance with safety and
health standards, rules, regulations, and orders promulgated under the Act.

The pivotal issue before us is whether these warrants are
unconstitutionally overbroad because they were not tailored to the
probable cause for their issuance.

I join with Commissioner Wall in holding that the constitutional
challenges to the scope of the warrants raised by Synkote and KDK are
properly before the Commission. As Commissioner Wall points out, a
number of the United States Circuit Courts of Appeals have held that the
Commission is a proper forum for the consideration of fourth amendment
issues, and that once the statutory Commission review process has been
commenced, any objections to the validity of a warrant must be raised
before the Commission. Smith Steel Casting Co. v. Donovan, 725 F.2d
1032, 1035-1036 (5th Cir. 1984); Robert K. Bell Enterprises, Inc. v.
Donovan, 710 F.2d 673 (10th Cir. 1983), cert. denied, 464 U.S. 1041
(1984); In re Establishment Inspection of Metal Bank of America,_Inc.,
700 F.2d 910 (3d Cir. 1983); Donovan v. Sarasota Concrete Co., 693 F.2d
1061 (11th Cir. 1982); Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128,
1136-1137 (3d Cir. 1979); In re Inspection of Central Mine Equipment
Co., 608 F.2d 719 (8th Cir. 1979); Bethlehem Steel Corp. v. OSHRC, 607
F.2d 871 (3d Cir. 1979); In re Worksite Inspection of Quality Products,
Inc., 592 F.21 611 (1st Cir. 1979). In accordance with this authority
the Commission in Sarasota Concrete Co., 81 OSAHRC 48/A2, 9 BNA OSHC
1608, 1981 CCH OSHD [[P]] 25,360 (No. 78- 5264, 1981), held that an OSHA
warrant was overbroad in scope and suppressed the evidence obtained
thereunder. On appeal the Eleventh Circuit expressly affirmed the
Commission's decision. 693 F.2d at 1066-67. The question of the
authority of the Commission to rule on these constitutional warrant
questions is therefore settled.

Chairman Buckley expresses the view that the Commission as an
administrative agency in the executive branch may not directly review
the decision of the magistrate or court to issue a warrant. However, the
courts have specifically ruled that the Commission should review the
magistrate's determination of probable cause and "make its own judgment
as to the propriety of the warrant" in connection with admitting or
excluding evidence in our proceeding.[[15]] Sarasota Concrete, supra,
693 F.2d at 1066,.Babcock & Wilcox, supra, 610 F.2d at 1136. In
Bethlehem Steel, supra, the Third Circuit stated that "[C]onceding,
arguendo that an administrative agency is not ordinarily considered the
appropriate forum for the resolution of constitutional claims, we think
there are compelling reasons for insisting that fourth amendment claims
for the suppression of evidence in OSHA enforcement cases be tendered
first to the Commission." 607 F.2d at 876.

Because the courts have so clearly directed that constitutional
challenges to OSHA warrants should be ruled on by the Commission, I
agree with Commissioner Wall that the Commission must consider whether
warrants of a particular scope should issue. However, I do not agree
that the Secretary's conduct in obtaining and executing obviously
overbroad warrants should be excused.[[16]]
Pursuant to Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), the
Secretary has formulated a number of administrative plans for scheduling
programmed OSHA inspections of employers. In prescribing these selection
procedures the Secretary clearly distinguished between safety
inspections and health inspection. Not only are health and safety
addressed in separate and distinct sections of each directive, but
substantially different methodologies are employed in the selection
process.[[17]] Thus, each of the directives at issue in these cases, CPL
2.25B and CPL 2.25C, contains a section ("I") entitled "Guidelines and
Procedures," consisting of several subsections, including section I.1,
"Inspection Scheduling for General Industry (Safety)," and section I.2,
"Inspection Scheduling for General Industry (Health)." Each directive
also has an Appendix A, "Health Inspection Plan," and Appendix B,
"Summary Description of the Statewide Industry Ranking Reports and
Establishment Lists," which describe in greater detail the health and
safety methodologies respectively.[[18]] As the warrant applications
themselves indicate, selection for inspection under the first subsection
(safety) is based on the industry's injury rate, whereas the
determination whether to inspect for health matters is predicated on the
degree of employee exposure to dangerous substances. The Health
Inspection Plan provision of each directive explain the basis for the
difference in methodologies:

In scheduling General Industry (safety) inspections, industries (SIC's)
are selected primarily on the basis of the frequency of injuries in
those industries. In comparison with injury incidence rates, however,
ILLNESS [sic] incidence rates often do not accurately reflect health
hazards in the workplace. Targeting of General Industry (health)
inspections, therefore, is based on the agency's Health Inspection Plan
(HIP). The HIP selects industries with the greatest potential for health
problems.

CPL 2.258, Appendix A (footnote omitted).[[19]]

In these cases, there is no dispute that the Secretary's application for
the warrants was based on his determination that probable cause existed
to inspect Synkote for matters pertaining to occupational health but not
safety and KDK for the converse. The warrant applications themselves so
state, and the Secretary so conceded before the judges below.[[20]]
Nevertheless, the Secretary requested and was granted authority to
inspect each employer for matters relating to both occupational safety
and occupational health. The Secretary's application for an overbroad
warrant in each case, and the magistrates' grant of such warrants,
clearly is contrary to the well-settled principle that warrants issued
for inspection under the Act must be tailored to the probable cause
basis for their issuance. Donovan v. Wollaston Alloys Inc., 695 F.2d 1,
6-7 (1st Cir. 1982); Sarasota Concrete, supra, 693 F.2d at 1068-1070.
Marshall v. Horn Seed Co., 647 F.2d 96, 100 (10th Cir. 1981); Marshall
v. North American Car Co., 626 F.2d 320, 324 (3d Cir. 1980); Marshall v.
Central Mine Equipment Co., 608 F.2d 719, 720 n.1 (8th Cir. 1979).[[21]]

It is well established that commercial enterprises have a legitimate
privacy interest as to their worksites, facilities, or premises. G.M.
Leasing Corp. v. United States, 429 U.S. 338, 353 (1977); See v. City of
Seattle, 387 U.S. 541, 544 (1967). See In re Carlson, 580 F.2d 1365
(10th Cir. 1978) (fourth amendment applicable to search and seizure for
tax collection by IRS agents of property used in the conduct of a
business). The fourth amendment's protection against unreasonable
searches, which implements this right, requires that entry be
sufficiently limited in scope and purpose so as not to be unreasonably
burdensome.

Barlow's, supra, 436 U.S. at 323 n.21; Camara v. Municipal Court, 387
U.S. 523, 532 (1967). For an inspection to be reasonable under the
fourth amendment, the warrant authorizing an inspection must be properly
tailored and limited to the probable cause shown for the warrant's
issuance. North American Car, supra, 626 F.2d at 324; Burkart Randall
Division of Textron, Inc. v. Marshall, 625 F.2d 1313, 1325 (7th Cir.,
1980); Marshall v. Pool Offshore Co., 467 F.Supp. 978, 982 & n.4 (W.D.
La. 1979). An overly broad inspection violates the fourth amendment
regardless whether any citations are issued as a result of the
inspection. Weyerhaeuser Co. v. Marshall, 592 F.2d 373, 376 n.2 (7th
Cir. 1979). See United States v. Calandra, 414 U.S. 338, 354 (1974)
(search made without probable cause consummates fourth amendment
injury).[[22]]

In addition to limiting the scope of the inspection to the probable
cause for its issuance, the warrant also serves to apprise the employer
of the permissible limits of the inspection beyond which the inspector
may not go. Camara, supra, 387 U.S. at 532. Absent such information,
there will be no effective restraints on the discretion of law
enforcement officers in the conduct of their search, nor will the
employer have any assurance that the public interest in the inspection
of its premises outweighs the invasion of privacy the inspection
entails. Michigan v. Tyler, 436 U.S. 499, 507-508; Camara, supra, 387
U.S. at 535-37; Sarasota Concrete, supra, 693 F.2d at 1067. See
Barlow's, supra, 436 U.S. at 323.

The warrants issued in these cases were overbroad. Although the probable
cause to inspect Synkote was the Secretary's health inspection plan,
even the majority recognizes that the warrant authorized both a health
and a safety inspection. Similarly, the probable cause to inspect KDK
was the Secretary's safety inspection plan, yet the warrant authorized
both a safety and a health inspection. The Secretary's Field Operations
Manual and Industrial Hygiene Technical Manual make it quite clear that
these are two different types of inspections, and that the inspection
procedures and effect on the employer's workplace differ materially. For
instance, health inspections routinely include sampling of noise levels
and air contaminants by attaching monitoring devices to employees in the
workplace[[23]]--a procedure much different than a safety inspection
where the compliance officer inspects for more mechanical type hazards
such as unguarded machines. The conclusion that these warrants are
overbroad is buttressed by the First Circuit's determination in
Wollaston Alloys, supra, that a warrant based on the Secretary's safety
inspection plan was improper "with respect to the taking of samples by
personal sampling devices, a procedure that focuses on health
violations." 695 F.2d at 7. (See also 695 F.2d at 4 n.4.)

The majority attempts to save the KDK warrant by stating that it was
limited to safety matters because it did not expressly authorize
personal sampling of employees. To the contrary, however, the KDK
warrant permits the Secretary to inspect "in a reasonable manner and to
a reasonable extent including but not limited to authority to take
environmental samples . . . ." The Secretary's regulation in effect when
this warrant was issued makes it quite clear that this language
authorizes personal sampling.[[24]] Similarly, the Secretary has
indicated in rulemaking that personal sampling of employees is a
reasonable inspection technique for obtaining environmental samples. 47
Fed. Reg. 6531, 55479 (1982). See Service Foundry Co. v. Donovan, 721
F.2d 492 (5th Cir. 1983); In re Establishment Inspection of Keokuk Steel
Castings, Division of Kast Metals Corp., 638 F.2d 42 (8th Cir. 1981).
Furthermore, even assuming the warrant does not authorize personal
sampling of KDK's employees, the majority agrees that it allows other
types of environmental sampling. In promulgating the current regulation,
the Secretary stated that while personal sampling of employees is the
preferred method of determining employee exposure to airborne
contaminants during a health inspection, other methods, such as area
sampling or having the inspector wear the sampling device while
accompanying employees, may be used to conduct environmental sampling.
47 Fed. Reg. 55479 (1982). Even assuming, as the majority states, that
environmental sampling is a permissible safety inspection method as
well, the fourth amendment is not satisfied by placing an employer in
the position of guessing whether an inspection will be limited to one
type of violation, health or safety, when it authorizes an inspection
method equally applicable to both types.[[25]] The warrants issued in
these cases thus authorized inspections that far exceeded the probable
cause for their issuance, and violated the employers' fourth amendment
rights.

The Secretary contends that even if the warrants are overbroad in scope,
we should admit the evidence arising from the warrants because it is not
appropriate to exclude evidence in Commission proceedings as a remedy
for fourth amendment violations. The Secretary also asserts that the
evidence involved here was acquired in reliance on those portions of the
warrants for which probable cause did exist and that he acted in good
faith in relying on the warrants for the acquisition of that evidence. I
believe that to admit this evidence on the theories advanced by the
Secretary would thwart the application of the fourth amendment to the
Act in accordance with the Barlow's decision.

Whether the exclusionary rule is applicable in particular proceedings
depends upon its value in deterring the improper conduct of law
enforcement officers, balanced against the costs of suppression. United
States v. Leon, 104 S.Ct. 3405, 3412-13 (1984); United States v. Janis,
428 U.S. 433, 447 (1976); Sarasota Concrete, supra, 9 BNA OSHC at 1613,
1981 CCH OSHD at p. 31,532. I believe we should adhere to our prior
decision in Sarasota Concrete, in which we determined that the deterrent
value of the exclusionary rule justifies its use in our proceedings. As
we noted in Sarasota Concrete, under the Act's centralized enforcement
scheme the Secretary has statutory authority to determine the manner in
which all section 8 inspections are conducted. He employs and supervises
the personnel who conduct those inspections. He also decides which
contested citations will be prosecuted. He thus "has the capability of
issuing and enforcing guidelines to effectuate our holdings involving
fourth amendment claims and to respond quickly to the announcement of
these holdings." 9 BNA OSHC at 1614, 1981 CCH OSHD at p. 31,532. We
therefore concluded that application of the exclusionary rule in
Commission proceedings "would have a relatively rapid and widespread
effect in ensuring that OSHA inspections are conducted in accordance
with the fourth amendment." Id. On review, the Eleventh Circuit
agreed, and upheld application of the exclusionary rule in our
proceedings. This conclusion is also consistent with Savina Home
Industries, Inc. v. Secretary of Labor, 594 F.2d 1358 (10th Cir. 1979),
and Babcock & Wilcox, supra, as well as with Weyerhaeuser Co. v.
Marshall, 592 F.2d 373 (7th Cir. 1979), in which the court suppressed
evidence to remedy a fourth amendment violation in a challenge to an
OSHA warrant. As the appellate court stated in Sarasota Concrete, "[i]f
fourth amendment rights are to be recognized in an OSHA context, it
seems reasonable that the only enforcement mechanism developed to date
should likewise be recognized." 693 F.2d at 1071.[[26]]

The Secretary alternatively contends that even if the exclusionary rule
is applicable to our proceedings, all the evidence gathered pursuant to
these warrants should not be suppressed. Rather, he urges that the
warrants should be "redacted" and only evidence obtained under the
overbroad portions of the warrants should be excluded.

As a practical matter, the language of the warrants is not sufficiently
particular to be severable. The warrant language merely tracks the
provisions of the Act which set forth the overall standards of conduct
required of employers and require inspections to be "reasonable." See
Weyerhaeuser Co. v. Marshall, 452 F. Supp. 1375, 1379-80 (E.D. Wis.
1978), aff'd, 592 F.2d 373 (7th Cir. 1979) (paraphrasing of statute in
warrant application insufficient).[[27]]

It is also important to note that the cases the Secretary cites in
support of his argument for partial suppression of evidence, or
redaction of the warrants, are primarily criminal in nature. The use of
evidence in criminal cases is vastly different than in civil cases
before the Commission under the Act. The distinctions are well-stated by
Chairman Buckley in Brooks Woolen Co., 85 OSAHRC ____,12 BNA OSHC 1233,
1236-37, 1985 CCH OSHD ¶ 27,233, pp. 35,151-52 (Nos. 79-45 and 79-128,
1985), aff'd, No. 85-1424 (1st Cir. Jan. 29, 1986). As Chairman Buckley
explained, the suppression of evidence normally will defeat the punitive
purposes of the criminal law because evidence of a crime, once
suppressed, usually cannot be recovered. Different considerations apply
in cases under the Act, however, because the purposes of the Act are not
punitive but rather remedial. Thus, the Act is intended to achieve safe
and healthful working conditions through the elimination of recognized
hazards and compliance with standards promulgated under the Act. As
Chairman Buckley stated,

If evidence from an unlawful OSHA inspection is suppressed, the
Secretary can seek to obtain similar evidence from a subsequent, valid
inspection or by other means. See section 8(b) of the Act, 29 U.S.C. §
657(b) (Secretary has authority to issue subpoenas in investigating
possible violations of the Act). If conditions in the employer's
workplace have changed to the extent that evidence of a violation no
longer exists, then any violation has ceased to exist, and the Secretary
has achieved the result he sought by initiating the enforcement action.
If conditions have not changed, the Secretary can reacquire the evidence
by lawful means. He will have lost some time and resources, but in many
cases the lost time and resources will be less than he would expend in
litigation arising from questionable inspection practices. In any event,
the cost of suppression is much less than it is in criminal cases.

These observations are consistent with the case law discussing the
showing necessary to establish probable cause for OSHA inspections. The
cases clearly demonstrate that suppression of evidence obtained from an
improper warrant will not preclude the Secretary from reapplying for a
warrant to conduct an inspection of proper scope. Thus, any reasonable
grounds for believing that violations may be ongoing or continuing in a
plant or worksite will qualify for obtaining a warrant.[[28]] For this
reason, the principles supporting redaction of a criminal warrant do not
apply with equal force to an administrative inspection warrant.

Review of OSHA warrant cases reveals no clear authority for redaction
here. Factually, the cases cited by the Secretary are significantly
different. In Wollaston Alloys, supra, the court upheld the warrant
because the Secretary had agreed in writing prior to the inspection to
limit the scope of the inspection.[[29]] Likewise, in Rockford Drop
Forge Co. v. Donovan, 672 F.2d 626 (7th Cir. 1982), the warrant was
limited to certain specific areas within the employer's plant, and the
court, in an action arising before the warrant was fully executed,
concluded that it could accept the Secretary's assertion that the
inspection would be limited in a manner consistent with the warrant.
Thus, the limitations on the inspections in Wollaston Alloys and
Rockford Drop Forge were firmly established before the inspections
occurred. In Donovan v. Fall River Foundry, 712 F.2d 1103 (7th Cir.
1983), the court, citing Rockford Drop Forge, concluded that it would be
appropriate to "reform" the warrant to reflect the scope of the actual
inspection. In that case the warrant was predicated on a complaint and
the Secretary had voluntarily limited the scope of his inspection to the
complaint area. There are no comparable facts in the records in the
cases before us to indicate that there was no invasion of privacy beyond
the probable cause for the warrants.

Contrary to Commissioner Wall's analysis, I do not believe that the
courts have, or would, apply the redaction principle to an
administrative OSHA warrant after the inspection and the wrongful
invasion of privacy has already taken place. Indeed, in North American
Car, supra, the Third Circuit quashed the entire warrant because it was
overbroad in scope. 626 F.2d at 324. Similarly, in Sarasota Concrete,
supra, the Eleventh Circuit affirmed the Commission's decision to
suppress all evidence obtained under an overbroad warrant. 693 F.2d at 1072.

Certainly, a rule requiring the suppression of all evidence obtained
from an overbroad warrant, regardless whether any of the evidence can be
linked to discrete, severable portions of the warrant, would not
seriously impede the enforcement of the Act. In the context of the
present cases such a ruling means only that the Secretary must prepare a
separate warrant form for the magistrate's signature for safety and
health inspections. On balance, this slight burden on the Secretary will
provide substantial protections against unconstitutionally broad
inspections.

On the other hand, application of the redaction principle in our
proceedings would remove any incentive whatever for the Secretary to
comply with the fourth amendment, since the Secretary would then be
encouraged to apply for warrants of the broadest possible scope knowing
that the evidence he would have obtained under a properly drawn warrant
would never be suppressed. In addition to the irreparable loss of
privacy and the burden to the employer resulting from an inspection
pursuant to an overly broad warrant, the Secretary could use such a
warrant as a pretext for conducting a "fishing expedition" as a means
for obtaining evidence which, even if suppressed initially, could be
available for subsequent warrant applications. Thus, a rule favoring
only partial suppression of evidence would not preclude the Secretary
from using an overly broad warrant to "bootstrap" a showing of probable
cause he otherwise would not be able to establish.

The exclusion of evidence serves the salutary purpose of ensuring that
enforcement officers act in a manner consistent with the fourth
amendment. Indeed, the rule is the only effective method for ensuring
that fourth amendment rights are protected. Michiqan v. Tucker, 417 U.S.
433, 447 (1974); United States v. Calandra, supra, 414 U.S. at 347;
Elkins v. United States, 364 U.S. 206, 217 (1960). As the Court stated
in Mapp v. Ohio, 367 U.S. 643, 655 (1961), the exclusionary rule is
essential to preserving the fourth amendment as a "freedom implicit in
the concept of ordered liberty." See Weeks v. United States, 232 U.S.
383, 393 (1914).

Evaluating the importance of the requirement of the fourth amendment
that a warrant indicate the proper scope and purpose of an inspection,
as compared with the relatively minor effect on the ultimate remedial
purposes of the Act resulting from the suppression of evidence in a
Commission proceeding, it seems clear that primary significance should
be accorded to ensuring that warrants in Commission cases are properly
tailored to their probable cause basis. In my view, the need to preserve
the essential value of a warrant clearly outweighs the incidental
benefit to the Secretary of admitting evidence attributable to
particular clauses and phrases within the warrant. To suppress only part
of the evidence resulting from an overbroad warrant necessarily requires
a pretense that there are in fact two inspections--one permissible under
the fourth amendment and the other invalid. It is improper to allow the
Secretary's agents to circumvent the scope and notice requirements of
the fourth amendment by such a fiction. United States v. Burch, 432 F.
Supp. 961 (D. Del. 1977), aff'd without published opinion, 577 F.2d 729
(3d Cir. 1978). I would therefore, hold that all all evidence resulting
from an overly broad warrant will be suppressed in a Commission
proceeding, and that the doctrine of redaction will not be applied. See
Sarasota Concrete, supra, 693 F.2d at 1072 (Commission is empowered to
adopt a rule of suppressing evidence arising from an overbroad warrant
based on a determination that the deterrent effect of the exclusionary
rule justifies its adoption as an appropriate sanction in Commission
proceedings). [[30]]

Finally, the Secretary contends that the evidence should not be excluded
because of the "good faith" of his inspectors. The Eleventh Circuit in
Sarasota Concrete affirmed the Commission's decision in that case not to
recognize a "good faith" exception to the exclusionary rule in
Commission proceedings. Id. Thereafter, in Leon, supra, the Supreme
Court expressly held that evidence may not be suppressed when it is
obtained by law enforcement officers acting "in objectively reasonable
reliance on a subsequently invalidated search warrant." 104 S.Ct. at
3421. Unlike Commissioner Wall, I do not believe Leon requires us to
overrule Sarasota Concrete insofar as that decision rejects application
of a "good faith" exception in Commission proceedings. As I state in my
dissent in Pennsylvania Steel Foundry & Machine Co., No. 78-638 (August
27, 1986), the considerations on which Leon is based do not apply in
Commission proceedings. In any event, even assuming a "good faith"
exception is generally applicable, the circumstances of these cares
demonstrate that the Secretary did not act in good faith.

As the Court in Leon stated, law enforcement officers must have a
reasonable knowledge of what the law requires, and their reliance on the
sufficiency of the warrant must be "objectively reasonable." 104 S.Ct.
at 3420-21 & nn. 20 & 23. The principle violated by the warrants
here--that a warrant must be tailored to the probable cause basis for
its issuance--is a fundamental rule of fourth amendment law of which we
may reasonably expect the Secretary's agents to be aware. The
Secretary's instructions to his agents, and their own Field Operations
Manual,[[31]] make quite clear the difference between health inspections
and safety inspections. I conclude that the inspectors could not have
have reasonably assumed that warrants of unlimited scope to conduct
safety and health inspections, based on a limited showing of probable
cause to conduct just one or the other, would be valid.[[32]]

In the circumstances, the situation in these cases is similar to that at
issue in Sarasota Concrete, supra, in which the Secretary improperly
sought and received a warrant to conduct a full-scope inspection based
only on an employee complaint of limited nature. In affirming the
Commission's decision not to apply a "good faith" exception, the court
held that "[i]n essence, OSHA officials decided to risk a questionable
search and now expect to escape responsibility by alleging good faith.
Such risk taking with the constitutional rights of others hardly can be
characterized as acting in good faith." 693 F.2d at 1072. I think that
characterization is equally appropriate here.

As I have noted, the fourth amendment requires that a warrant be
tailored to the probable cause for its issuance, so that the invasion of
privacy rights is no more intrusive than necessary. This adherence to
well-settled fourth amendment principles will not prevent the Secretary
from making inspections or enforcing the Act. Indeed, on review before
us the Secretary does not dispute that each warrant could easily have
been tailored to conform to the particular plan on which its issuance
was based. I believe we should require him to do so.

 

FOOTNOTES:

[[1]] These two cases present similar legal issues. Since neither case
involves any disputed questions of fact, we consolidate these cases for
decision pursuant to Commission Rule 9, 29 C.F.R. § 2200.9.

[[2]]0ne citation alleged that Synkote violated two provisions of the
Secretary's lead standard, 29 C.F.R. §§ 1910.1025(d)(2) and 1910.1025(d)
(7), by not making an initial determination of possible lead exposure
and by not conducting additional monitoring to detect possible new or
additional exposure. A second citation charged Synkote with not having
posted the OSHA informational notice, contrary to 29 C.F.R. §
1903.2(a)(1), and with failing to maintain a log of occupational
injuries and illnesses required by 29 C.F.R. § 1904.2(a). KDK was
charged with one violation of an occupational safety standard, 29 C.F.R.
§ 1910.215(b)(9), for failing to provide tongue guards on a grinding
machine.

[[3]]This directive is one of a series of instructions issued by the
Secretary to set forth the criteria and methods by which employers are
selected for routine, "programmed" inspections, that is, inspections
other than those based on complaints of unsafe or unhealthful working
conditions or on the occurrence of an accident resulting in injuries to
employees. See note 4 infra.

[[4]] OSHA Instruction CPL 2.25C, effective October 1, 1982, is the
successor to CPL 2.25B. The purpose of these directives is to
concentrate programmed or scheduled inspections in those industries
presenting the greatest risk of health or safety hazards. See United
States Dep't of Labor v. Kast Metals Corp., 744 F.2d 1145, 1147-48 n.1
(5th Cir. 1984): Phoenix Forging Co., 85 OSAHRC _____, 12 BNA OSHC 1317,
1985 CCH OSHD ¶ 27,256 (No. 82-398, 1985). However, on January 7, 1986,
OSHA issued an instruction, CPL 2.71, which somewhat modifies these
inspection priorities by directing that a small percentage of
inspections will be conducted in industries having below-average lost
workday injury rates. 1 BNA Ref. File 21:9344. With this modification,
the current programmed inspection directive is now designated CPL 2.25F
CH- 2, February 3, 1986. 3 CCH ESHG New Developments ¶ 8783.

[[5]]With some modifications, the two warrants essentially copy the
broad language of the Act. The inspection provision in section 8(a) of
the Act, 29 U.S.C. § 657(a), authorizes the Secretary

(1) to enter without delay and at reasonable times any . . . 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 . . . .

The Supreme Court in Marshall v. Barlow's Inc., 436 U.S. 307, 325
(1978), held that section 8(a) was unconstitutional "insofar as it
purports to authorize inspections without a warrant."

[[6]] KDK and Synkote also challenge provisions of the warrants
authorizing the Secretary to inspect certain types of employer records
and to conduct interviews with employees. KDK and Synkote also claim
that the warrants are invalid because the Secretary's enforcement
directives have not been published in the Federal Register.

[[7]] The Health Inspection Plan provisions of each directive explain
the basis for the difference in methodologies:

In scheduling General Industry (safety) inspections, industries (SIC's)
are selected primarily on the basis of the frequency of injuries in
those industries. In comparison with injury incidence rates, however,
ILLNESS [sic] incidence rates often do not accurately reflect health
hazards in the workplace. Targeting of General Industry (health)
inspections, therefore, is based on the agency's Health Inspection Plan
(HIP). The HIP selects industries with the greatest potential for health
problems.  CPL 2.258, Appendix A (footnote omitted). The language
appearing in Appendix A of CPL 2.25 C is virtually identical.

[[8]]The employers do not contend that the Secretary did not have
probable cause for a safety inspection in KDK and a health inspection in
Synkote.

[[9]]In Synkote, for example, the warrant specifically authorized the
Secretary to attach monitoring devices to employees.

[[10]]For example, environmental sampling may be necessary to determine
whether an explosive concentration of flammable vapors is present in the
workplace. See 29 C.F.R. § 1910.94(c)(6)(ii) (ventilation of spray booth
must dilute solvent vapor to at least 25 percent of solvent's lower
explosive limit).

[[11]] Section 3(8) of the Act contains a definition of "occupational
safety and health standard." The term is thereafter used in numerous
sections of the Act. Sections 4(b)(2), 5(a)(2), 6, 8(c)(3), 18(b),
22(c)(1), 22(d), and 26.

[[12]]The warrant application in Synkote informed the magistrate that
the Secretary sought to conduct a health inspection under the provisions
of OSHA Instruction 2.25B. Thus, the magistrate was fully informed of
the Secretary's asserted probable cause basis for seeking the warrant.

[[13]] Chairman Buckley also notes that, before the warrant in Synkote
was executed, the warrant was upheld by a U.S. District Judge in an
action in which Synkote argued the invalidity and overbreadth of the
warrant. Donovan v. Synkote Paint Co., Civil No. 82-3428 (D.N.J. Nov.
29, 1982 and Jan. 25, 1983). This gave the Secretary an additional basis
to conclude that he was justified in conducting the inspection on the
basis of the warrant.

[[14]] In Wollaston Alloys, Inc. v. Donovan, 695 F.2d at 7, the court
intimated that there might be merit in the argument, but that decision
was handed down several days after the inspection of Synkote's workplace.

[[15]] This is what the law is, not necessarily what I believe it should
be. I have serious reservations whether the Commission, as an executive
branch agency, may constitutionally review the probable cause
determination of an Article III judicial officer. The holding of the
courts that the Commission is merely deciding whether to admit or
exclude evidence in its own proceeding seems to me to be a legal
fiction. No matter how couched, the net result is that the Review
Commission is grading the papers of the United States Magistrate.
Nevertheless, the courts have made it very plain that once an inspection
takes place the employer may not raise his constitutional warrant
challenges in the district court, and that the Commission should
initially determine these constitutional questions. For that reason, and
out of fairness to the employer who has no other forum to make any
factual record needed for his constitutional claims. I believe we must
adhere to the Commission's earlier holding in Sarasota Concrete and rule
on these constitutional warrant challenges.

[[16]]Chairman Buckley would suppress evidence obtained pursuant to an
invalid warrant only if the Secretary made a false or misleading
statement in the warrant application, or if the Secretary's inspectors
exceeded the scope of the inspection authorized by the warrant. This
view, however, simply cannot be reconciled with the holding in Sarasota
Concrete. In Sarasota Concrete there was no false or misleading
statement in the warrant application. In that case the Secretary
forthrightly applied for a broad warrant to inspect Sarasota's entire
workplace on the basis of a complaint that was very limited in scope.
The magistrate granted the broad warrant, and the Secretary's inspectors
did not exceed the scope of the inspection authorized by the warrant.
Both the Commission and the Eleventh Circuit agreed that the evidence
should be suppressed because the warrant was overbroad in scope --
precisely the situation here.

I also note that Chairman Buckley is inconsistent on his rulings on the
two warrants before us. On the one hand he declines to address Synkote's
objections to the scope of the warrant because he believes the
Commission may not review the actions of the magistrate who issued that
warrant. Yet he joins with Commissioner Wall in upholding the warrant
issued to KDK on the grounds that it was properly limited in scope to
the probable cause for its issuance. Thus, he does effectively rule on
the constitutional questions in KDK--but does not in Synkote. This
selective application or disregard of Sarasota Concrete is not fair to
the parties.

[[17]]The Act itself generally differentiates matters pertaining to
occupational safety from those relating to occupational health. Thus,
section 2(b)(6) of the Act, 29 U.S.C. § 651(b)(6), states that the Act's
objectives are to be accomplished by "exploring ways to discover latent
diseases, establishing causal connections between diseases and health
problems, in recognition of the fact that occupational health standards
present problems often different from those involved in occupational
safety." (emphasis added.) Other sections of the Act apply only to
matters to health and not safety. Section 6(b)(5), 29 U.S.C. §
655(b)(5), prescribes specific requirements for the promulgation of
standards dealing with "toxic materials or harmful physical agents,"
with the objective of protecting against "material impairment of health
or functional capacity." Section 6(b)(7) requires that where appropriate
a standard "shall prescribe the type and frequency of medical
examinations or other tests which shall be made available . . . to most
effectively determine whether the health of such employees is adversely
affected." Section 20, 29 U.S.C. § 669, authorizes research to
determine, among other things, levels of exposure to toxic materials and
harmful physical agents and substances "at which no employee will suffer
impaired health or functional capacities or diminished life expectancy
as a result of his work experience," as well as "medical examinations
and tests as may be necessary for determining the incidence of
occupational illnesses and the susceptibility of employees to such
illnesses."

[[18]] For additional discussion see United States Department of Labor
v. Kast Metals, 744 F.2d 1145, 1147-48 n.1 (5th Cir.

1984) (health) and Phoenix Forging, Co., 85 OSAHRC ____, 12 BNA OSHC
1317, 1318 & nn. 5-6, 1985 CCH OSHD p. 35,210 & nn.5-6 (No. 82-398,
1985) (safety).

[[19]] The language appearing in Appendix A of CPL 2.25C is virtually
identical.

[[20]] In response to Synkote's request for admissions, the Secretary
stated that he relied on the health inspection provisions of CPL 2.25B
and that "this was a health inspection." The Secretary specifically
admitted that he sought authority to conduct a programmed safety
inspection of KDK's worksite "rather than a programmed health
inspection," and that he had no probable cause basis for any type of
inspection "other than a programmed safety inspection."

It is true that the Secretary's instructions to his inspectors do allow
concurrent safety and health inspections when "resources are available"
and "it is likely" that both safety and health hazards may exist to a
significant degree. However, that is very different from whether the
scope of the warrant relates to the probable cause shown for its
issuance. If the Secretary desires a warrant to conduct both a safety
and a health inspection and it is indeed "likely" that both safety and
health hazards "exist to a significant degree," he need only make such a
showing to the magistrate. The fact that the Secretary has authorized
his inspectors to conduct concurrent safety and health inspections says
nothing about the probable cause shown or the scope of the warrant issued.

[[21]] In Sarasota Concrete, the Eleventh Circuit affirmed the
Commission's determination that a specific complaint relating to a
localized condition does not constitute probable cause for a warrant
authorizing a full-scope inspection of the entire worksite.
In two cases before the Ninth Circuit that court ruled that a full-scope
inspection could properly be conducted under a warrant predicated on an
employee complaint. Both of these holdings, however, were based on the
proposition that the conditions asserted in the complaints were
sufficiently pervasive to justify an inspection of the entire worksite.
Thus, in In re Establishment Inspection of J.R. Simplot Co., 640 F.2d
1134 (9th Cir. 1981), the employer conceded that the complaint was
sufficient to establish probable cause for a complete inspection of its
feed lot. Although the feed lot in actuality comprised a distinct and
separate portion of the employer's facility, the information made
available to the district court Judge who issued the warrant allowed him
to reasonably conclude that the facility consisted of only one single
undivided work area. In Hern Iron Works, Inc. v. Donovan, 670 F.2d 838
(9th Cir. 1982), the court concluded that the magistrate could
reasonably infer that inspection of the entire establishment would be
necessary to detect the hazard of inadequate ventilation alleged in the
complaint. Similarly, the Tenth Circuit recently upheld a warrant
authorizing a full-scope inspection based on an employee complaint on
the ground that the complaint allegation of discrete hazards at separate
locations together with the observation of a number of hazardous
conditions in plain view established that hazards permeated the
workplace. Robert K. Bell Enterprises, Inc., v. OSHRC, No. 85-1547 (10th
Cir. Feb. 19, 1986). See also Burkart Randall Div. of Textron, Inc. v.
Marshall, 625 F.2d 1313 (7th Cir 1980) (hazards named in complaints are
sufficiently diffuse to support magistrate's determination that
inspection of the entire workplace would be reasonable) (concurring
opinion of Judge Fairchild). Thus, the decisions upholding full-scope
warrants based on employee complaints of specific hazardous conditions
are consistent with the basic principle that the scope of the warrant
must be reasonably related to the probable cause established for its
issuance.

Under Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), warrants based on
a general administrative plan, such as those involved here, do not have
to be restricted to a specific physical area of the worksite. See, e.g.,
In re Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d
1335, 1343 (7th Cir.), denied, 444 U.S. 884 (1979) The issue here,
however, is not the physical area of the worksite to be inspected, but
rather the type of violation for which an inspection may be authorized.
No court has addressed this particular issue.

[[22]] Warrants such as those involved here, which authorize full-scope
"wall to wall" inspections, necessarily impose a substantial burden on
employers. Sarasota Concrete, supra, 693 F.2d at 1068 & n.9; Cerro Metal
Products, Division of Marmon Group, Inc. v. Marshall, 620 F.2d 964, 974
(3d Cir. 1980). As the court stated in the latter case, "a typical OSHA
inspection is more than an unobtrusive scrutiny. Inspections of entire
plants . . . necessarily create inconvenience to the employer and a
certain amount of lost time for employees who escort the inspector or
are otherwise disrupted in their work. Even if no violations were found
and no citations issued, an employer would not regard such an inspection
as benign."

[[23]] Industrial Hygiene Technical Manual, Chapter II.

[[24]] 29 C.F.R. § 1903.7(b) in pertinent part provides:

Compliance Safety and Health Officers shall have authority to take
environmental samples and to . . . employ other reasonable investigative
techniques . . . . As used herein, the term "employ other reasonable
investigative techniques" includes . . . the attachment of personal
sampling equipment such as dosimeters, pumps, badges and other similar
devices to employees in order to monitor their exposures."

[[25]]While I agree with the majority that the phrase "occupational
safety and health standards" in the scope provision of the warrant does
not necessarily imply a health inspection, I emphasize, as discussed
more fully infra, that the replication of statutory language and similar
"boilerplate" does not satisfy the specificity requirements of the
fourth amendment. See notes 27 & 29 infra.

[[26]] In INS v. Lopez-Mendoza, 104 S.Ct. 3479 (1984), the Court held
that it would not apply the exclusionary rule to an Immigration and
Naturalization Service civil deportation proceeding. While adhering to
the balancing test set forth in United States v. Janis, 428 U.S. 433
(1976), the Court ruled that the relative costs and benefits did not
justify excluding evidence obtained from the arrest of an alien in
violation of the fourth amendment. The Court reasoned that the deterrent
value of excluding such evidence in a deportation proceeding was
substantially reduced by several factors, including the availability of
evidence gathered independently of or sufficiently attenuated from the
original arrest, the particular field conditions under which INS arrests
normally occur, and the specific procedures established by the INS to
control its field personnel in making arrests and to investigate and
punish violations of the fourth amendment by its officers. These factors
are not present in OSHA proceedings. Furthermore, Lopez-Mendoza involves
warrantless arrests as opposed to the acquisition of evidence through a
warrant. The decision whether or not to arrest a suspect without a
warrant must be made quickly as Conditions occur, without the
opportunity for reflection or study. As the court stated, arrests of
illegal aliens occur under "chaotic" conditions. 104 S. Ct. at 3487. The
opposite is true with respect to OSHA warrants for programmed
inspections. The Secretary's field personnel have ample opportunity to
develop their showing of probable cause and to prepare warrants and
applications that are properly limited in scope. In my opinion,
Lopez-Mendoza is clearly distinguishable.

[[27]] The general proscription in the Act that inspections be
"reasonable" is not sufficient to supplant the fourth amendment's
warrant requirement because it affords no guidance to inspectors in the
exercise of their authority to conduct an inspection. See Donovan v.
Dewey, 452 U.S. 594, 601 (1981); Marshall v. Wollaston Alloys, Inc., 479
F. Supp. 1102, 1104 (D. Mass. 1979). As the Commission held in Western
Waterproofing Co., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD ¶
20,807 (No. 1087, 1976), rev'd on other grounds, 560 F.2d 947 (8th Cir.
1977), section 8(a) of the Act is co-extensive with the fourth amendment
such that an inspection conducted in violation of the fourth amendment
necessarily establishes a violation of section 8(a) as well.

[[28]] E.g., Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d
1313 (7th Cir. 1980) (complaints received 5 and 6 months prior to
warrant application are not stale where the alleged violations are not
of a type likely to disappear through mere passage of time); Pelton
Casteel, Inc. v. Marshall, 588 F.2d 1182 (7th Cir. 1978) (Secretary may
re-inspect to determine whether prior violations have been abated when
it has reasonable grounds to believe that the violations may be
continuing); In re Establishment Inspection of Seaward International
Inc., 510 F. Supp. 314 (W.D. Va. 1980), aff'd without published opinion,
644 F.2d 880 (4th Cir. 1981) (determination that substances which were
the subject of an employee complaint were used as part of regular
production processes allows inference that the violation was of
continuing nature); In re Establishment Inspection of BP Oil, Inc., 509
F. Supp. 802 (E.D. Pa.), aff'd, 10 BNA OSHC 1304 (3d Cir. 1981) (not
officially reported) (rejecting argument that probable cause requires
proof that continuing violations were in existence at the precise time
the warrant is issued); In re Inspection of Central Mine Equip. Co., 7
BNA OSHC 1185 (E.D. Mo. 1979), 1979 CCH OSHD ¶ 23,309 (magistrate's
order), rev'd on other grounds, 608 F.2d 719 (8th Cir. 1979) (age of
information in a complaint but one factor to be considered in
determining probable cause; other considerations, which are not
applicable in the case of criminal warrants, include the nature of the
alleged violation and the nature of the facility in question). In
addition, the Supreme Court observed in Barlow's supra, 436 U.S. at 318,
that the effectiveness of the Act had not been adversely affected by the
time lapse between an employer's warrant request and the Secretary's
return with the necessary process to compel entry. The Secretary has not
referred us to any circumstances demonstrating that there is a greater
likelihood of an employer altering or disguising conditions prior to a
reinspection than there is of an employer concealing conditions before
the Secretary returns with a warrant to conduct an initial inspection.

[[29]] Even so, the court criticized the general language of the
warrant, characterizing it as "standard boilerplate in many OSHA
inspection warrants" which "causes us concern." 695 F.2d at 8. At least
two other courts of appeals and one district court have also expressed
disapproval of of the consistent use of "unrelieved" boilerplate in OSHA
warrants. E.g., Wollaston Alloys, supra; Donovan v. Federal Clearing Die
Casting Co., 655 F.2d 793, 797 (7th Cir. 1981); Marshall v. Milwaukee
Boiler Manufacturing Co., 626 F.2d 1339 (7th Cir. 1980); Pool Offshore
Co., supra. See Donovan v. Dewey, 452 U.S. 594, 601 (1981).

[[30]] I do not share the Secretary's concerns, expressed before the
Judges below, regarding the practicality of restrictions on the scope of
an inspection. Although the Secretary's own directives, supra, permit
inspectors to conduct a joint health and safety inspection, they
nevertheless distinguish health and safety matters insofar as the
allocation of inspection resources is concerned. The fact is that the
Secretary's enforcement personnel do routinely conduct inspections
limited either to health or safety matters. E.g., Blocksom & Co. v.
Marshall, 582 F.2d 1122 (7th Cir. 1978) (separate health and safety
inspections conducted at different times by different personnel);
Marshall v. North American Car Co., 476 F. Supp. 698 (M.D. Pa. 1979),
aff'd, 626 F.2d 320 (3d Cir. 1980) (same); In re Establishment
Inspection of Marsan Co., 7 BNA OSHC 1557, 1979 CCH OSHD ¶ 23,856 (N.D.
Ind. 1979) (not officially reported) (industrial hygiene referral made
by safety inspector; industrial hygienist then applied for warrant to
conduct a health inspection).

[[31]]See Chapter II, Compliance Programming.

[[32]]The majority opinion suggests that the Secretary was justified in
believing the warrant in Synkote was valid because it had been upheld by
the district court after an adversary hearing. The majority fails to
mention, however, that the district court did not consider the question
before us--i.e. the scope of the warrant.

------------------------------------------------------------------------

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