“Docket No. 84-0203 SECRETARY OF LABOR,Complainant,v.DELO SCREW PRODUCTS COMPANY,Respondent.OSHRC Docket No. 84-0203ORDER OF REMANDIn his order granting Delo Screw Products Company’s Motion to Suppress Evidence and ForSummary Judgment, the administrative law judge relied on the Commission’s decision in SarasotaConcrete 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).\u00a0 In Sarasota, theCommission held that it would suppress evidence gathered pursuant to a warrant if thewarrant was not supported by probable cause and that suppression was an appropriate remedyeven if the Secretary acted in good faith in executing the warrant.\u00a0 Since the judgeissued his ruling, Sarasota has been superceded by decisions restricting thegrounds on which evidence obtained through a warrant may be suppressed.\u00a0 SynkotePaint Co. and KDK Upset Forging Co., 12 BNA OSHC 2036, 1986 CCH OSHD ? 27,675(Nos. 83-2 & 83-152, 1986); Pennsylvania Steel Foundry & Machine Co., 12BNA OSHC 2017, 1986 CCH OSHD ? 27,671 (No. 78-638, 1986), petition for review filed,No. 86-3546 (3d Cir. Sept. 8, 1986); Smith Steel 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); Davis Metal Stamping, Inc., 12 BNA OSHC 1259, 1985 CCH OSHD ?27,236 (No. 78-5775, 1985), aff’d, 800 F.2d 1351 (5th Cir. 1986).\u00a0 SeeUnited States v. Leon, 104 S.Ct. 3405, 3421 (1984) (evidence gathered in objectivelyreasonable reliance on search warrant should not be suppressed).Accordingly, we remand this case to the judge with instructions that he reconsider hisruling in light of this intervening case law.\u00a0 In reconsidering his ruling, the judgeshall also consider the other arguments raised by the parties, including Delo Screw’sargument that the evidence should be suppressed because the warrant application containedfalse and misleading information.\u00a0 See Brooks Woolen Co., 12 BNA OSHC1233, 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 remandedfor further proceeding consistent with this opinion.FOR THE COMMISSIONRAY H. DARLING, JR.Executive SecretaryDATED:\u00a0 APR 21 1987SECRETARY 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 of Labor, Cleveland, Ohio, on behalf of complainantRobert D. Moran, Esquire, Washington, D. C., onbehalf of respondentORDER ON MOTION TO SUPPRESS EVIDENCE AND FOR SUMMARY JUDGMENTFollowing receipt of an employee complaint alleging the existence of methylene chloridevapors near a part degreaser in respondent’s plant, the Secretary of Labor attempted toinspect respondent’s premises on December 9, 1983.\u00a0 This inspection was refused, andthe Secretary then obtained an ex parte warrant to inspect respondent’sentire plant.\u00a0 Upon completion of the inspection, the Secretary issued a nonseriouscitation charging respondent with violations of the noise standard and other standards notrelated to the specific complaint.\u00a0 Respondent has filed a motion to suppressevidence and for summary judgment dismissing this notion on grounds that the inspectionconstituted an illegal search prohibited by the Fourth Amendment.\u00a0 A hearing was heldin Columbus, Ohio, on August 21, 1984.\u00a0 Both parties have submitted briefs.The Supreme Court considered and delineated theprobable cause requirements 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.\u00a0The Court held that a warrant is necessary for nonconsensual inspections conductedby OSHA compliance officers and that such a warrant may be issued upon a showing of (1)specific evidence of an existing violation, or (2) a reasonable legislative oradministrative plan for conducting the inspection.Since Barlow’s, supra, several courtsand the Review Commission have considered the scope to allow inspections conductedpursuant to a warrant based upon an employee complaint.\u00a0 Both the Seventh and NinthCircuits have allowed full scope inspections in light of the broad remedial purposes ofthe Act.\u00a0 Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d1313, 1325-26 (7th Cir. 1980); Hern Iron Works, Inc. v. Donovan, 670 F.2d 838, 841(9th Cir. 1982).\u00a0 By contrast, the Third and Eighth Circuits would restrictinspections to \”the area of the complaint.\”\u00a0 Marshall v. North AmericanCar 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 undersignedis controlled by the Review Commission’s position set forth in Donovan v. SarasotaConcrete Company, [[1\/]] 81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1981 CCH OSHD ? 25,360(No. 78-5464, 1981); aff’d, 693 F.2d 1061 (11th Cir. 1983).\u00a0 The Commissionconsidered and rejected the Secretary’s arguments to the contrary and held that aninspection conducted pursuant to a specific complaint may not be expanded to include itemsunrelated to the circumstances embodied in the complaint.[[2\/]]In the instant case, the Secretary conceded at thehearing the inspection conducted pursuant to the warrant in this case produced no evidenceto substantiate the allegations contained in the specific complaint; i.e.,excessive methylene chloride vapors (Tr. 24-25). Accordingly, the evidence relating toviolations of unrelated standards must be suppressed unless the record discloses theSecretary conducted the inspection pursuant to a \”reasonable legislative oradministrative plan.\”In support of his contention that the inspection inquestion was conducted in accordance with a \”reasonable administrative plan,\”the Secretary refers to paragraphs 4 and 5 of his application for inspection warrant.\u00a0These paragraphs do no more than recite that respondent is engaged in an industryclassified as hazardous by the Bureau of Labor Statistics and may, therefore, be subjectedto a \”comprehensive inspection\” as outlined in certain agency regulations andinstructions.\u00a0 This same argument was rejected by the Review Commission in Sarasota,supra, as follows:On review, the Secretary asserts that the inspection of Respondent’s workplace waspursuant to \”reasonable administrative guidelines\” because a regulation and aninternal OSHA instruction require OSHA not to limit inspections based on employeecomplaints to the allegations in the complaint.\u00a0 We reject this argument.\u00a0 TheSecretary did not introduce the cited internal instruction in his warrant applicationbefore the magistrate.\u00a0 Thus, in view of the limits on the scope of our inquiry . . .we cannot consider the instruction in determining whether the Secretary had probable causeto conduct the inspection at issue.\u00a0 Moreover, the cited regulation provides merelythat inspections based on employee complaints shall not be limited to complaintallegations.\u00a0 The Secretary has not shown that he has any reasonable basis for thisapproach and has provided no information to demonstrate that it is derived from neutralsources.\u00a0 Accordingly, the Secretary has failed to show that Respondent was inspectedpursuant to a reasonable administrative enforcement plan as envisioned by the Barlow’sCourt.The Secretary further argues that the past history of respondent brings this case withinthe dictum discussed in the Eleventh Circuit’s affirmation of the ReviewCommission’s Sarasota decision:Under other circumstances, it is conceivable that a specific violation plus a past patternof violations may be probable cause for a full scope inspection.\u00a0 In addition, aspecific complaint may allege a violation which permeates the workplace so that a fullscope inspection is reasonable related to the complaint.\u00a0 693 F.2d at 1069.The Secretary’s counsel asserted at the meaning that respondent had been cited forviolations of the noise standard on a previous occasion (October 1977), which resulted inthe issuance of a repeat citation of the same standard following an inspection in 1979.However, this repeat citation was later vacated by motion of the Secretary, therebynullifying its effect (Tr. 29- 30, Respondent’s Interrogatory No. 29 and Complainant’sResponse).\u00a0 The Secretary in this case has not demonstrated \”a past pattern ofviolations\” which would serve to justify a full scope inspection.The undersigned has also considered the \”goodfaith\” arguments advanced in three recent Supreme Court decisions handed down on July5, 1984.\u00a0 Segura v. U.S., 52 U.S.L.W. 5128 (No. 82-5298); U.S. v. Leon,52 U.S.L.W. 5155 (No. 82-1771); Massachusetts v. Sheppard, 52 U.S.L.W. 5177 (No.82-963).The Secretary’s \”good faith\” argumentsunder the facts of this case are rejected for the same reason stated by the EleventhCircuit:The Secretary claims that when OSHA applied for the warrant to inspect Sarasota, districtcourts were split on the issue of whether a specific complaint could support a full scopeinspection.\u00a0 In essence, OSHA officials decided to risk a questionable search and nowescape responsibility by alleging good faith.\u00a0 Such risk taking with theconstitutional rights of others hardly can be characterized as acting in good faith.\u00a0 Donovan v. Sarasota Concrete Company, supra, 693 F.2d at 1072.It is hereby ORDERED:1.\u00a0 Respondent’s motion to suppress evidence andfor summary judgment is hereby granted.2.\u00a0 The Secretary’s complaint is hereby dismissed.3.\u00a0 The Secretary’s Citation No. 1, items 1 through 6, is hereby vacated.EDWIN G. SALYERSJudgeDate:\u00a0 November 20, 1984SECRETARY OF LABOR, Complainant, v.DELO SCREW PRODUCTS COMPANY,Respondent.OSHRC Docket No. 84-0203ORDER APPROVING SETTLEMENTThis matter is before the undersigned upon a settlement entered into between the partiesand duly executed.\u00a0 The parties advise that all matters in dispute have been amicablyresolved.\u00a0 After consideration, it is ORDERED:1.\u00a0 The settlement agreement is approved and theterms thereof are incorporated into this order.2.\u00a0 Item 1. Citation No. 1, is vacated.3.\u00a0 Items 2 through 6, Citation No. 1, are affirmed as \”other\” to seriousviolations.4.\u00a0 No civil penalties are assessed.EDWIN G. SALYERSJudgeDate:\u00a0 June 23, 1987\u00a0FOOTNOTES:[[1\/]] In his decision the judge addressed theSecretary’s contention, presented to the magistrate in support of probable cause, thatDelo Screw had been earlier cited for violation.\u00a0 The judge found no pattern ofearlier violations and decided therefore that the Secretary had not supported probablecause for a full scope inspection.\u00a0 In their briefs on review, the parties argue ofthe finding and the nature of record regarding earlier citations as they bear on whetherthe Secretary acted in good faith and whether the warrant application contained false andmisleading information.\u00a0 Because the judge did not examine the record and make hisfinding taking into account all factors relevant to these issues, but considered onlywhether the allegation of earlier citations supported a finding of probable cause, wedirect the judge to reconsider the record and the finding.\u00a0 The judge shall affordthe parties opportunity to present such additional evidence as they may wish bearing ongood faith and the Secretary’s warrant application, in light of developments in the lawsubsequent to the making of the record in this case[[1\/]] Like the case at bar in Sarasota, supra,the Secretary had conducted a \”wall to wall\” inspection of an employer’s plantbased upon a complaint which went unverified by the inspection.\u00a0 The Secretarynevertheless charged the employer with violations of standards not embraced by thecomplaint.[[2\/]] An administrative law judge must followCommission precedent.\u00a0 Secretary v. Gindy Manufacturing Company, 74 OSAHRC53\/A2, 1 BNA OSHC 1717, 1973-74 CCH OSHD ? 17,790 (No. 5708-P, 1974); Secretary v.Grossman Steel & Aluminum Corporation, 76 OSAHRC 54\/D9, 4 BNA OSHC 1185,1975-76 CCH OSHD ? 20,691 (No. 12775, 1975).”