“Docket No. 81-1685 81-1762 81-2089 SECRETARY OF LABOR,Complainant, v.EQUITABLE SHIPYARDS, INC., Respondent.OSHRC Docket Nos, 81-1685, 81-1762, & 81-2089DECISION BEFORE:\u00a0 BUCKLEY, Chairman, and CLEARY, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”).\u00a0 It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Paul L. Brady affirmed a citation alleging thatEquitable Shipyards, Inc. (\”Equitable\”) failed to protect certain employeesagainst overexposure to welding fumes by assuring that the employees wore appropriaterespirators and by providing sufficient mechanical ventilation.\u00a0 In addition toarguing that it did not violate the cited standards, Equitable contends that (1) allevidence gathered by the Secretary of Labor during his inspection of Equitable’s workplaceshould be suppressed because there was no probable cause for the inspection; (2) the judgeerred in declining to enforce a subpoena Equitable had issued to Tim Dorman, Equitable’ssafety director at the time of the alleged violations; and (3) the judge erred in notordering the Secretary to turn over to Equitable employees.\u00a0 We conclude thatEquitable’s motion to suppress was properly denied.\u00a0 We further conclude, however,that the judge erred in declining to enforce the Dorman subpoena and that remand forfurther proceedings is therefore required.IEquitable operates a shipyard in Madisonville, Louisiana.\u00a0 Following a complaint byemployees of unsafe working conditions, two OSHA compliance officers attempted to inspectthe facility.\u00a0 When Equitable refused to consent to the inspection, OSHA obtained awarrant from a federal magistrate authorizing it to inspect the areas in the shipyard thatwere mentioned in the employee complaint.\u00a0 Equitable again refused to permit thecompliance officers to conduct the inspection and filed suit in federal district courtseeking to have the warrant quashed on the ground it was not supported by probable cause.\u00a0The district court found there was probable cause to support the warrant and orderedthat the inspection be conducted according to its terms.\u00a0 Ultimately, the inspectionwas conducted, and Equitable was cited for violating several OSHA standards on the basisof information gathered during the inspection.Equitable argues that the evidence gathered during the inspection should besuppressed and the citations vacated because probable cause for issuance of the warrantwas lacking.\u00a0 We reject the argument.In Chairman Buckley’s view, the Commission has no authority to review or setaside the probable cause determination made by a federal judge or magistrate who issues asearch warrant.\u00a0 Brooks Woolen Co., OSHRC Docket Nos. 79-45 and 79-128, slipop. at 2-3 (April 10, 1985)(view of Chairman Buckley).\u00a0 Where an inspection wasconducted pursuant to a warrant, the Commission can consider challenges to the warrantbased on allegations that the Secretary acted illegally in obtaining or executing thewarrant.\u00a0 Id.\u00a0 In this case, Equitable claims no misconduct on theSecretary’s part; it argues only that the probable cause determination made by themagistrate and upheld by the district court judge was in error.\u00a0 As the Commissionhas no authority to rule on such an argument, Chairman Buckley would deny the motion tosuppress.\u00a0 Id.; Beauty Craft Tile of the Southwest, Inc., 84OSAHRC____,12 BNA OSHC 1082, 1083, 1984 CCH OSHD ? 27,091, pp. 34,929-30 (No. 80-471,1984).Commissioner Cleary finds the warrant is supported by probable cause.\u00a0The Secretary sought the warrant after receiving a formal, signed complaint fromfive employees listing a number of purportedly unsafe conditions in the Erection and Rakeareas of Equitable’s shipyard.\u00a0 The complaint stated that employees were exposed totoxic air contaminants from painting and welding operations, to fire hazards due toimproperly maintained welding equipment, to fall hazards due to improperly tightenedsafety lines, to a slipping hazard due to oil leaking on barge decks, and to electricalshock due to improperly maintained welding lines and to welding in wet and rainy weather.\u00a0The warrant application set forth the substance of the employee complaint and soughtto inspect only those areas of the shipyard mentioned in the complaint.\u00a0 The warrantthat was issued was similarly limited.\u00a0 The information presented in the warrantapplication was sufficient to establish probable cause for the limited-scope warrant thatthe magistrate issued.\u00a0 See Sarasota Concrete Co., 81 OSAHRC 48\/A2, 9BNA OSHC 1608, 1615-16, 1981 CCH OSHD ? 25,360, pp. 31,534-35 (No. 78-5264, 1981), aff’d,693 F.2d 1061 (11th Cir. 1982).Even if the warrant was not supported by probable cause, Commissioner Clearywould not suppress the evidence.\u00a0 The Supreme Court has held that evidence should notbe suppressed when an officer acting with objective good faith has obtained a warrant froma judge or magistrate and acted within its scope.\u00a0 United States v. Leon, 104S.Ct. 3405, 3420 (1984).\u00a0 Commissioner Cleary would apply that same rule toCommission proceedings.\u00a0 Davis Metal Stamping, Inc., OSHRC Docket No. 78-5775(April 15, 1985).\u00a0 In this case, the compliance officers who inspected Equitable’sworkplace were clearly entitled to rely on the validity of the warrant. The warrant hadbeen duly issued by a magistrate and, prior to its execution, the magistrate’s probablecause determination had been upheld by the federal district court.\u00a0 Equitable doesnot argue that the compliance officers acted in other than good faith in obtaining andexecuting the warrant and does not advance any reason why they were not entitled to relyon the warrant’s validity.\u00a0 Cf. United States v. Leon, 104 S.Ct.at 3421-22 (suppression of evidence is appropriate if magistrate was misled by knowinglyor recklessly false information in an affidavit, or if affidavit was \”so lacking inindicia of probable cause as to render official belief in its existence entirelyunreasonable.\”).\u00a0 Because the compliance officers conducted the inspection inobjectively reasonable reliance on the validity of the warrant, there is no basis tosuppress the evidence.\u00a0 See Donovan v. Federal Clearing Die Casting Co.,695 F.2d 1020 (7th Cir. 1982).IIEquitable next asserts that the judge erred in refusing to enforce a subpoena issued toEquitable’s safety director, Tim Dorman. Dorman was the company’s principal representativeduring the inspection.\u00a0 At the time of the hearing, Dorman was no longer employed byEquitable and had moved to San Francisco.\u00a0 Equitable attempted to obtain Dorman’stestimony by means of a subpoena.\u00a0 See 29 C.F.R. ? 2200.55 (Commission rulegoverning subpoenas).\u00a0 The facts surrounding service of the subpoena are not fullydeveloped in the record, but Dorman apparently received notice of it for he wrote a letterto Equitable’s counsel declining to appear at the hearing.\u00a0 At the outset of thehearing, Equitable moved for enforcement of the subpoena.\u00a0 The judge reserved rulingat that point.\u00a0 When Equitable renewed its motion at the close of its evidence, thejudge denied the motion, stating that Dorman’s testimony \”is not crucial to thisproceeding.\”We conclude that the judge erred in declining to enforce the subpoena on thatground.\u00a0 On at least one material issue of fact, there is a sharp conflict in theevidence, and Dorman’s testimony could be crucial in resolving that point.\u00a0 Moreover,as Equitable’s safety director and representative during the inspection, Dorman wouldordinarily be expected to be an important witness for Equitable. Under the circumstances,fundamental fairness requires that Equitable be given the opportunity to obtain Dorman’stestimony.The issue on which there is conflicting evidence concerns the type ofrespirator certain Equitable employees were using during the inspection.\u00a0 One of thecitation items on review alleges that five welders were exposed to excessive levels ofwelding fumes while not wearing respirators approved for use against welding fumes.\u00a0Although four of the employees were observed by the Secretary’s compliance officersto be wearing respirators, the Secretary alleged that those respirators were not approvedfor welding fumes.\u00a0 The Secretary also alleged that the fifth employee was notwearing any respirator at all.\u00a0 Equitable contends that it provided respiratorsapproved for use against welding fumes and that its employees were required to wear suchrespirators whenever welding. The company further contends that the evidence does notsupport the Secretary’s allegation that the five employees in question were not wearingproper respirators.During the inspection, OSHA compliance officers monitored the five employeesto determine the concentrations of welding fumes to which they were exposed.\u00a0Compliance officer Crawford monitored three of the employees:\u00a0 Glass, Revere,and Sharp.\u00a0 Crawford was accompanied by Dorman during this phase of the inspection.\u00a0Crawford testified that Glass, Revere, and Sharp wore 3M model 8710 respirators,which provide protection against dust but are not approved for welding fumes. \u00a0Crawford stated that he wrote down the NIOSH approval number from the respirator thatGlass was wearing.\u00a0 That number, TC-21C-132, corresponds to the approval number ofthe 8710 respirator that was introduced into evidence.\u00a0 Crawford further testifiedthat the 8710 respirator appeared significantly different from the 3M model 9920respirator that Equitable claims the employees were wearing and which is approved forwelding fumes.\u00a0 Samples of both respirators were introduced into evidence and supportCrawford’s testimony that the two respirators are distinct in appearance and could not beconfused.Of the three employees observed by Crawford, only Glass testified.\u00a0 Whenshown a 9920 respirator, Glass stated that it was the type of respirator he had beenwearing at the time of the inspection.\u00a0 Glass answered affirmatively when asked if hewas absolutely positive that the 9920 was the type of respirator he had been wearing,stating:\u00a0 \”You wear one every day of your life while you’re working, you oughtto recognize it.\”\u00a0 Glass was no longer working for Equitable at the time of thehearing and had no apparent interest in the outcome of the case.Two employees, Cooper and Mayfield, were monitored by compliance officerCannon, who was accompanied by Equitable’s safety inspector Stein.\u00a0 Cannon testifiedthat Cooper was wearing a model 8710 respirator.\u00a0 He did not observe the model numberon the respirator but identified it as an 8710 because it possessed two straps instead ofonly one.\u00a0 Stein identified the respirator that Cooper was wearing as a 9920.\u00a0The respirator samples introduced into evidence show that both the 8710 and 9920have two straps.Cannon testified that Mayfield was not wearing any type of respirator and hadno respirator with him when he went into the wing wall, where he performed welding thatday.\u00a0 However, Cannon stated that he placed the sampling cassettes on the employeesbefore they went into the wing wall and would not have seen if Mayfield put on arespirator inside the wing wall.\u00a0 Nevertheless, Cannon was certain that Mayfield didnot use a respirator inside the wing wall.\u00a0 He stated, \”Every time he came out,he didn’t take one off, and as far as I know, he had none available.\u00a0 He may have hadone available, but he was not utilizing one.\”\u00a0 Stein testified that both Cooperand Mayfield had respirators with them when they went into the wing wall, and he did notobserve either of them welding without wearing a respirator.The judge did not resolve the conflicts in the evidence.\u00a0 Instead, hebelieved the parties had stipulated that the employees in question were wearing 8710respirators at the time of the inspection and, on this basis, he affirmed the citationitem.\u00a0 Equitable argues on review that no such stipulation was entered.We agree.\u00a0 At the beginning of the portion of the hearing devoted to thewelding fumes citation, Equitable’s counsel did express a willingness to stipulate to thetype of respirators being worn, but no such stipulation was ever completed.\u00a0 Afterthe Secretary’s counsel stated her intention to call several Equitable employees aswitnesses, the following exchange ensued:JUDGE BRADY:\u00a0 You don’t have any problem with that, do you, Mr. Rader?MR. RADER [Counsel for Equitable]:\u00a0 No, Your Honor.\u00a0 Of course,again, I don’t know, but if the purpose of calling employees is to testify that they worethis particular respirator, then we would stipulate that.JUDGE BRADY:\u00a0 Let’s get off the record to discuss this. (Off-the-record discussion).JUDGE BRADY:\u00a0 Let’s go back on the record.\u00a0 During theoff-the-record discussion meeting of the parties, there has been a stipulation reached.\u00a0Do you want to cite the terms of the agreement, Mr. Rader?MR. RADER:\u00a0 Your Honor, it’s my understanding that the Secretary intendsto call some employee witnesses for the purpose of establishing that on a day personalmonitoring was conducted, that their work load was normal, that the ventilation wasnormal.\u00a0 And we’re certainly willing to stipulate to that point.MS. GANNAWAY [Counsel for the Secretary]:\u00a0 Right Your Honor.\u00a0 Forclarification, the purpose being that the Secretary is establishing that this was aroutine work day, that it’s representative of the nature and the extent and the quantityof work performed by these workers on a typical work day, that there was nothing out ofthe ordinary on the day of personal monitoring.This exchange cannot be construed to include a stipulation that Equitable’swelders wore 8710 respirators.\u00a0 The offer by Equitable’s counsel to stipulate to thetype of respirator did not mention a model number, and there had been no previous mentionat the hearing of the 8710 respirator that would indicate that the reference to \”thisparticular respirator\” meant the model 8710.[[1]] Moreover, the stipulation that wasultimately entered involved only the representativeness of the work load and ventilationon the day monitoring was performed, not the type of respirator being worn.\u00a0 Thesubsequent course of the hearing is also inconsistent with any suggestion that the partiesunderstood there was a stipulation concerning the type of respirator the welders wereusing.\u00a0 The parties introduced conflicting evidence on the point, and each sidecross-examined the other party’s witnesses who testified on the subject.\u00a0 At no timeduring the hearing did either party suggest that this lengthy testimony was unnecessarybecause a stipulation had resolved the issue.In declining to enforce the subpoena on the basis that Dorman’s testimony wasnot crucial, the judge apparently acted on his belief that the parties had stipulated thatthe welders wore unapproved respirators.\u00a0 However, that issue not only remains indispute, the evidence on it is sharply contradictory.\u00a0 In particular, Crawford’stestimony positively identifying the respirators worn by Glass, Revere, and Sharp as8710’s conflicts with Glass’ equally unequivocal testimony that he was wearing a 9920.\u00a0Dorman accompanied Crawford during the portion of the inspection when Crawfordobserved Glass, Revere, and Sharp.\u00a0 Equitable made an offer of proof that Dormanwould testify that the employees were wearing 9920 respirators.[[2]]\u00a0 Under thesecircumstances, Equitable is entitled to the opportunity to present Dorman’stestimony.[[3]]\u00a0 We reject the Secretary’s argument that Dorman’s testimony is notneeded because other persons, Revere and Sharp, could shed additional light on the issue.\u00a0We are unwilling to second-guess counsel’s choice of one witness over another; thatseveral persons may have knowledge of a particular fact should not preclude a party frompresenting the witness of its choice.The Secretary argues in his brief to the Commission that the subpoena shouldnot be enforced because it was not properly served on Dorman.\u00a0 We see no reason toresolve this point now.\u00a0 First, it is not clear that the Secretary may raise thisobjection; in general, a party lacks standing to raise objections to a subpoena issued toanother person.\u00a0 See Lee Way Motor Freight, 75 OSAHRC 20\/E12, 3 BNAOSHC 1843, 1846, 1975-76 CCH OSHD ? 20,250, p. 24,144-45 (No. 7674, 1975).\u00a0 Second,the judge did not base his ruling on the Secretary’s objection and has not yet hadoccasion to consider it.\u00a0 Where there is a question as to whether a subpoena wasproperly served, a definitive ruling can be made in a proceeding to enforce the subpoena.\u00a0 National Labor Relations Board v. Strickland, 321 F.2d 811, 814 (6thCir. 1963).IIIDuring the inspection, the compliance officers obtained written statements from a numberof Equitable employees.\u00a0 Equitable sought to obtain those statements throughdiscovery and submitted to the Secretary written forms signed by nineteen employeesauthorizing the release of their statements to Dorman, who was then still Equitable’ssafety director.\u00a0 The Secretary refused to produce the statements and the judge didnot order them produced.\u00a0 Equitable contends that the judge erred in failing to orderthe Secretary to turn over the statements.We find it unnecessary to resolve this issue.\u00a0 Equitable had claimedbefore the judge that the employees’ statements pertained to \”several\” citationitems and that the employees had made effective waivers of their informer’s privilege.\u00a0The judge did not order disclosure.\u00a0 In his decision, the judge affirmedseveral citation items and modified one to a de minimis notice.\u00a0Equitable sought and obtained discretionary review of the judge’s disposition ofonly two of these items–subitems 1a and 1b of serious citation 2 in docket no. 81-2089.\u00a0 These items allege that five named employees were overexposed to welding and ironoxide fumes on June 3, 1981, that mechanical ventilation was inadequate, and that theemployees were not wearing the appropriate respirators.\u00a0 The Secretary argues in hisanswering brief on review, and Equitable does not in its reply brief dispute, that theissue of the production of the statements does not pertain to the citation items still incontroversy.\u00a0 Aside from a technical dispute over where personal sampling devicesshould have been placed on the five employees, the only disputed question of fact onreview is whether the five employees were wearing respirators approved for welding fumes.\u00a0 The nineteen statements that Equitable sought were not made by any of those fiveemployees and were made about two months before the alleged violations before us occurred.\u00a0Equitable does not seek the disclosure of any statements made by the five employeesand it has not produced any written waivers signed by them. Although the statements soughtwere apparently relevant to two other items that the judge had respectively affirmedwithout penalty and had modified to a de minimis notice, Equitable did notseek discretionary review as to them.\u00a0 We therefore have no occasion at this time toaddress the disclosure issue.Accordingly, the judge’s decision is set aside to the extent it isinconsistent with this decision, and the case is remanded for further proceedings inaccordance with Part II of this opinion.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARY DATED:\u00a0 APR 18 1985FOOTNOTES: [[1]] Immediately prior to the quoted exchange, the Secretary had presentedhis case on a different respirator item, which alleged that spray painters were notprotected by approved respirators.\u00a0 The Secretary’s evidence showed, and the partiesstipulated, that Equitable’s spray painters had been using 3M model 8711 respirators.\u00a0It is possible that counsel’s reference to \”this particular respirator\”arose out of a misunderstanding as to which citation item was being discussed and wasmeant to refer to the previously discussed 8711 respirators.[[2]] The judge stated that even if Glass was wearing a 9920 respirator during theinspection, Equitable would still be in violation because three other employees werewearing unapproved respirators and one was not wearing any respirator at all.\u00a0 We donot agree that the record supports these conclusions.\u00a0 First, if Glass’ testimonythat he wore a 9920 respirator is believed, Crawford’s testimony that Revere and Sharpwere wearing unapproved respirators must be rejected, for Crawford testified that Revereand Sharp were wearing the same type of respirator as Glass.\u00a0 Second, Cannon’stestimony that Cooper wore an unapproved respirator was based primarily on his observationthat Cooper’s respirator had two straps.\u00a0 However, the 9920 respirator, like the8710, has two straps, and Stein testified that the respirator Cooper wore was a 9920.\u00a0Thus, the record does not support a finding that Cooper wore an unapprovedrespirator.\u00a0 Finally, neither Cannon nor Stein could positively state whetherMayfield wore a respirator while he was welding, as neither could see him during thattime.\u00a0 Their testimony conflicted on whether Mayfield had a respirator with him whenhe went into the wing tank.\u00a0 Without a credibility determination, we cannot find thatMayfield was not protected by a respirator when welding.\u00a0 See EvansvilleMaterials, 77 OSAHRC 143\/M9, 3 BNA OSHC 1741, 1742, 1975-76 CCH OSHD ? 20, 187, p.24,046 (No. 3444, 1975).[[3]] At one point, Equitable suggested that Dorman’s deposition could betaken as an alternative to his appearance at the hearing. On remand, the parties shouldconsider this possibility.\u00a0 See section 12(h) of the Act, 29 U.S.C. ? 661(g)(Commission may order testimony taken by deposition); 29 C.F.R. ? 2200.70 (deposition inlieu of testimony).”