“SECRETARY OF LABOR,Complainant,v.DELO SCREW PRODUCTS COMPANY,Respondent.OSHRC Docket No. 84-0203_ORDER OF REMAND_In his order granting Delo Screw Products Company’s Motion to SuppressEvidence and For Summary Judgment, the administrative law judge reliedon the Commission’s decision in _Sarasota Concrete Co_., 81 OSAHRC48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360 (No. 78-5264, 1981),_aff’d_, 693 F.2d 1061 (11th Cir. 1982). In _Sarasota_, the Commissionheld that it would suppress evidence gathered pursuant to a warrant ifthe warrant was not supported by probable cause and that suppression wasan appropriate remedy even if the Secretary acted in good faith inexecuting the warrant. Since the judge issued his ruling, _Sarasota_has been superceded by decisions restricting the grounds on whichevidence obtained through a warrant may be suppressed. _Synkote PaintCo_. and _KDK Upset Forging Co_., 12 BNA OSHC 2036, 1986 CCH OSHD ?27,675 (Nos. 83-2 & 83-152, 1986); _Pennsylvania Steel Foundry & MachineCo_., 12 BNA OSHC 2017, 1986 CCH OSHD ? 27,671 (No. 78-638, 1986),_petition for review filed_, No. 86-3546 (3d Cir. Sept. 8, 1986); _SmithSteel Casting Co_., 12 BNA OSHC 1227, 1985 CCH OSHD ? 27,263 (Nos.80-2069 & 80-2322, 1985), _aff’d_, 800 F.2d 1329 (5th Cir. 1986); _DavisMetal Stamping, Inc_., 12 BNA OSHC 1259, 1985 CCH OSHD ? 27,236 (No.78-5775, 1985), _aff’d_, 800 F.2d 1351 (5th Cir. 1986). _See UnitedStates v. Leon_, 104 S.Ct. 3405, 3421 (1984) (evidence gathered inobjectively reasonable reliance on search warrant should not be suppressed).Accordingly, we remand this case to the judge with instructions that hereconsider his ruling in light of this intervening case law. Inreconsidering his ruling, the judge shall also consider the otherarguments raised by the parties, including Delo Screw’s argument thatthe evidence should be suppressed because the warrant applicationcontained false and misleading information. _See Brooks_ _Woolen Co_.,12 BNA OSHC 1233, 1234-37, 1985 CCH OSHD ? 27,233, pp. 35,148-51 (Nos.79-45 & 79-128, 1985) (view of Chairman Buckley), _aff’d_ 782 F.2d 1066(1st Cir. 1986). [[1\/]]The judge’s order is vacated and the case is remanded for furtherproceeding consistent with this opinion.FOR THE COMMISSIONRAY H. DARLING, JR.Executive SecretaryDATED: APR 21 1987————————————————————————SECRETARY OF LABOR,Complainant,v.DELO SCREW PRODUCTS COMPANY,Respondent.OSHRC Docket No. 84-0203APPEARANCES:Gerald A. Hudson, Esquire, Office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio, on behalf of complainantRobert D. Moran, Esquire, Washington, D. C., on behalf of respondent_ORDER ON MOTION TO SUPPRESS EVIDENCEAND FOR SUMMARY JUDGMENT_Following receipt of an employee complaint alleging the existence ofmethylene chloride vapors near a part degreaser in respondent’s plant,the Secretary of Labor attempted to inspect respondent’s premises onDecember 9, 1983. This inspection was refused, and the Secretary thenobtained an _ex_ _parte_ warrant to inspect respondent’s entire plant. Upon completion of the inspection, the Secretary issued a nonseriouscitation charging respondent with violations of the noise standard andother standards not related to the specific complaint. Respondent hasfiled a motion to suppress evidence and for summary judgment dismissingthis notion on grounds that the inspection constituted an illegal searchprohibited by the Fourth Amendment. A hearing was held in Columbus,Ohio, on August 21, 1984. Both parties have submitted briefs.The Supreme Court considered and delineated the probable causerequirements of the Fourth Amendment under the Occupational Safety andHealth Act in _Marshall v. Barlow’s Inc_., 436 U.S. 307 (1978); 98 S.Ct.1816. The Court held that a warrant is necessary for nonconsensualinspections conducted by OSHA compliance officers and that such awarrant may be issued upon a showing of (1) specific evidence of anexisting violation, or (2) a reasonable legislative or administrativeplan for conducting the inspection.Since _Barlow’s_, _supra_, several courts and the Review Commission haveconsidered the scope to allow inspections conducted pursuant to awarrant based upon an employee complaint. Both the Seventh and NinthCircuits have allowed full scope inspections in light of the broadremedial purposes of the Act. _Burkart Randall Division of Textron,Inc. v. Marshall_, 625 F.2d 1313, 1325-26 (7th Cir. 1980); _Hern IronWorks, Inc. v. Donovan_, 670 F.2d 838, 841 (9th Cir. 1982). Bycontrast, the Third and Eighth Circuits would restrict inspections to\”the area of the complaint.\” _Marshall v. North American Car Company_,626 F.2d 320, 324 (3d Cir. 1980); _Marshall v. Central Mine EquipmentCompany_, 608 F.2d 719, 721, n.1 (8th Cir. 1979).In view of the conflict of Circuits, the undersigned is controlled bythe Review Commission’s position set forth in _Donovan v_. _SarasotaConcrete Company_, [[1\/]] 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCHOSHD ? 25,360 (No. 78-5464, 1981); _aff’d_, 693 F.2d 1061 (11th Cir.1983). The Commission considered and rejected the Secretary’s argumentsto the contrary and held that an inspection conducted pursuant to aspecific complaint may not be expanded to include items unrelated to thecircumstances embodied in the complaint.[[2\/]]In the instant case, the Secretary conceded at the hearing theinspection conducted pursuant to the warrant in this case produced noevidence to substantiate the allegations contained in the specificcomplaint; _i.e_., excessive methylene chloride vapors (Tr. 24-25).Accordingly, the evidence relating to violations of unrelated standardsmust be suppressed unless the record discloses the Secretary conductedthe inspection pursuant to a \”reasonable legislative or administrativeplan.\”In support of his contention that the inspection in question wasconducted in accordance with a \”reasonable administrative plan,\” theSecretary refers to paragraphs 4 and 5 of his application for inspectionwarrant. These paragraphs do no more than recite that respondent isengaged in an industry classified as hazardous by the Bureau of LaborStatistics and may, therefore, be subjected to a \”comprehensiveinspection\” as outlined in certain agency regulations and instructions. This same argument was rejected by the Review Commission in _Sarasota_,_supra_, as follows:On review, the Secretary asserts that the inspection of Respondent’sworkplace was pursuant to \”reasonable administrative guidelines\” becausea regulation and an internal OSHA instruction require OSHA not to limitinspections based on employee complaints to the allegations in thecomplaint. We reject this argument. The Secretary did not introducethe cited internal instruction in his warrant application before themagistrate. Thus, in view of the limits on the scope of our inquiry . .. we cannot consider the instruction in determining whether theSecretary had probable cause to conduct the inspection at issue. Moreover, the cited regulation provides merely that inspections based onemployee complaints shall not be limited to complaint allegations. TheSecretary has not shown that he has any reasonable basis for thisapproach and has provided no information to demonstrate that it isderived from neutral sources. Accordingly, the Secretary has failed toshow that Respondent was inspected pursuant to a reasonableadministrative enforcement plan as envisioned by the _Barlow’s_ Court.The Secretary further argues that the past history of respondent bringsthis case within the _dictum_ discussed in the Eleventh Circuit’saffirmation of the Review Commission’s _Sarasota_ decision:Under other circumstances, it is conceivable that a specific violationplus a past pattern of violations may be probable cause for a full scopeinspection. In addition, a specific complaint may allege a violationwhich permeates the workplace so that a full scope inspection isreasonable related to the complaint. 693 F.2d at 1069.The Secretary’s counsel asserted at the meaning that respondent had beencited for violations of the noise standard on a previous occasion(October 1977), which resulted in the issuance of a repeat citation ofthe same standard following an inspection in 1979. However, this repeatcitation was later vacated by motion of the Secretary, therebynullifying its effect (Tr. 29- 30, Respondent’s Interrogatory No. 29 andComplainant’s Response). The Secretary in this case has notdemonstrated \”a past pattern of violations\” which would serve to justifya full scope inspection.The undersigned has also considered the \”good faith\” arguments advancedin three recent Supreme Court decisions handed down on July 5, 1984. _Segura v. U.S_., 52 U.S.L.W. 5128 (No. 82-5298); _U.S. v. Leon_, 52U.S.L.W. 5155 (No. 82-1771); _Massachusetts v. Sheppard_, 52 U.S.L.W.5177 (No. 82-963).The Secretary’s \”good faith\” arguments under the facts of this case arerejected for the same reason stated by the Eleventh Circuit:The Secretary claims that when OSHA applied for the warrant to inspectSarasota, district courts were split on the issue of whether a specificcomplaint could support a full scope inspection. In essence, OSHAofficials decided to risk a questionable search and now escaperesponsibility by alleging good faith. Such risk taking with theconstitutional rights of others hardly can be characterized as acting ingood faith. _Donovan v. Sarasota Concrete Company_, _supra_, 693 F.2dat 1072.It is hereby ORDERED:1. Respondent’s motion to suppress evidence and for summary judgment ishereby granted.2. The Secretary’s complaint is hereby dismissed.3. The Secretary’s Citation No. 1, items 1 through 6, is hereby vacated.EDWIN G. SALYERSJudgeDate: November 20, 1984————————————————————————SECRETARY OF LABOR,Complainant, v.DELO SCREW PRODUCTS COMPANY,Respondent.OSHRC Docket No. 84-0203_ORDER APPROVING SETTLEMENT_This matter is before the undersigned upon a settlement entered intobetween the parties and duly executed. The parties advise that allmatters in dispute have been amicably resolved. After consideration, itis ORDERED:1. The settlement agreement is approved and the terms thereof areincorporated into this order.2. Item 1. Citation No. 1, is vacated.3. Items 2 through 6, Citation No. 1, are affirmed as \”other\” toserious violations.4. No civil penalties are assessed.EDWIN G. SALYERSJudgeDate: June 23, 1987 FOOTNOTES:[[1\/]] In his decision the judge addressed the Secretary’s contention,presented to the magistrate in support of probable cause, that DeloScrew had been earlier cited for violation. The judge found no patternof earlier violations and decided therefore that the Secretary had notsupported probable cause for a full scope inspection. In their briefson review, the parties argue of the finding and the nature of recordregarding earlier citations as they bear on whether the Secretary actedin good faith and whether the warrant application contained false andmisleading information. Because the judge did not examine the recordand make his finding taking into account all factors relevant to theseissues, but considered only whether the allegation of earlier citationssupported a finding of probable cause, we direct the judge to reconsiderthe record and the finding. The judge shall afford the partiesopportunity to present such additional evidence as they may wish bearingon good faith and the Secretary’s warrant application, in light ofdevelopments in the law subsequent to the making of the record in this case[[1\/]] Like the case at bar in _Sarasota_, _supra_, the Secretary hadconducted a \”wall to wall\” inspection of an employer’s plant based upona complaint which went unverified by the inspection. The Secretarynevertheless charged the employer with violations of standards notembraced by the complaint.[[2\/]] An administrative law judge must follow Commission precedent. _Secretary v. Gindy Manufacturing Company_, 74 OSAHRC 53\/A2, 1 BNA OSHC1717, 1973-74 CCH OSHD ? 17,790 (No. 5708-P, 1974); _Secretary v.Grossman Steel & Aluminum_ _Corporation_, 76 OSAHRC 54\/D9, 4 BNA OSHC1185, 1975-76 CCH OSHD ? 20,691 (No. 12775, 1975).”