“Docket No. 80-0325 SECRETARY OF LABOR, Complainant, v.HARRISON FURNITURE MANUFACTURING CO., Respondent.OSHRC Docket No. 80-0325DECISION Before:\u00a0 BUCKLEY, Chairman, and WALL, Commissioner. BY THE COMMISSION:This case is 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\”).\u00a0 The Commission is an adjudicatory agency, independentof the Department of Labor and the Occupational Safety and Health Administration(\”OSHA\”).\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).Harrison Furniture Manufacturing Company (\”Harrison\”) was cited for variousviolations of the Act following an inspection of its plant in Harrison, Arkansas. \u00a0The inspection was conducted under an inspection warrant.\u00a0 Before Administrative LawJudge John S. Patton, Harrison argued that the warrant was invalid, and moved to suppressthe evidence gathered during the inspection.\u00a0 Denying Harrison’s motion in part, thejudge ruled that the warrant was valid to the extent that it authorized the inspection ofthe specific working conditions listed in the warrant application.\u00a0 However, thejudge also concluded that the warrant was overly broad in authorizing a full-scope(wall-to-wall) inspection of Harrison’s plant.\u00a0 In the judge’s view, since OSHAsought the warrant based solely on the complaint of a former employee of Harrison aboutspecific working conditions at the plant, the warrant should have limited the inspectionto those specific conditions.\u00a0 Based on these rulings, the judge held that Harrisonwas entitled to suppression of some, but not all, of the evidence obtained during theinspection.\u00a0 Both the Secretary and Harrison sought, and were granted, Commissionreview of the judge’s fourth amendment rulings.[[1]] The two participating Commission members have different views concerning the Commission’sauthority to review the decision of a judge or magistrate to issue an inspectionwarrant.[[2]]\u00a0 In Chairman Buckley’s view, the Commission, as an agency within theexecutive branch, has no authority to review the actions of a judicial officer of a courtcreated under Article III of the Constitution. E.g., Phoenix Forging Co., 85OSAHRC ____, 12 BNA OSHC 1317, 1319, 1985 CCH OSHD ? 27,256, p. 35,211-12 (No.82-398)(view of Chairman Buckley), and cases cited therein.\u00a0 Therefore, ChairmanBuckley would hold that the Commission should not review Harrison’s arguments forsuppression of the evidence which relate to the magistrate’s decision to issue thewarrant.Commissioner Wall concludes that the Commission, in considering whether to suppressevidence in its proceedings, has the authority to determine whether the inspection warrantis supported by probable cause.\u00a0 See Pennsylvania Steel Foundry &Machine Co., 86 OSAHRC ___, 12 BNA OSHC 2017, 2023-24, 1986 CCH OSHD ? 27,671,p. 36,067 (No. 78-638, 1986)(view of Commissioner Wall), pet. for review filed, No.86-3546 (3d Cir. Sept. 8, 1986).\u00a0 However, a finding that the inspection warrant isnot supported by probable cause does not necessarily require the suppression of theevidence, for the good faith exception to the exclusionary rule applies to Commissionproceedings.\u00a0 Consistent with the Supreme Court’s decision in United States v.Leon, 104 S.Ct. 3405, 3421 (1984), Commissioner Wall would not suppress evidencegathered by OSHA inspectors in objectively reasonable reliance, on an inspection warrant.\u00a0 See Synkote Paint Co., 86 OSAHRC ____, 12 BNA OSHC 2036, 2041-42,1986 CCH OSHD ? 27,675, p. 36,087-88 (No. 83-2, 1986)(view of Commissioner Wall).This case was directed for review before the Supreme Court’s decision in Leon.\u00a0 Under Commission precedent in effect when the case was before the judge, the goodfaith exception to the exclusionary rule was held to be inapplicable to Commissionproceedings. 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). \u00a0Consequently, the parties could not have been expected to, and did not fully litigate theissue of whether the evidence was gathered by inspectors in objectively reasonablereliance on a search warrant.\u00a0 For this reason,Commissioner Wall concludes that fairness dictates that the parties be given anopportunity to present evidence on that issue.[[3]]Although Chairman Buckley concludes that the Commission has no authority to review thedecision of a magistrate to issue a warrant, he agrees with Commissioner Wall that themost expeditious course of action is to allow the parties to complete the record on thegood faith issue.\u00a0 Receipt of evidence and argument on good faith will facilitate theCommission’s disposition of this case, and will ensure that the record is complete in theevent that judicial review is sought under section 11(a) or 11(b) of the Act, 29 U.S.C. ?660(a), 660(b).\u00a0 Accordingly, the case is remanded to the Chief Judge for assignmentto an administrative law judge.[[4]]On remand, the judge shall afford the parties the opportunity to present further evidenceand argument on the good faith question. The parties should address both whether OSHAacted in good faith in seeking a warrant based on the information set forth in the warrantapplication, and whether it acted in good faith in obtaining a full-scope inspectionwarrant, rather than a more limited warrant.\u00a0 Further, consistent with the SupremeCourt’s decision in Leon, the good-faith inquiry should be confined to whether areasonably well-trained OSHA inspector would have known the inspection was illegal despitethe magistrate’s authorization.\u00a0 In making this determination, all of thecircumstances–including whether the warrant application had previously been rejected by adifferent magistrate–may be considered.\u00a0 See Leon, 104 S.Ct. at 3421n.23.\u00a0 The judge shall enter findings of fact and conclusions of law on the goodfaith issue.\u00a0 The Commission shall retain jurisdiction of the case pending receipt ofthese additions to the record.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 November 21, 1986The Administrative Law Judge decision in this matteris unavailable in this format.\u00a0 To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ([email protected]),telephone (202-606-5398), fax (202-606-5050), TTY (202-606-5386).FOOTNOTES: [[1]] The parties, following the judge’s suppression rulings, waived a hearing on themerits.\u00a0 The parties stipulated which citation items should be affirmed or vacatedbased on the judge’s rulings.[[2]] As established by the Act, the Commission is composed of three members. \u00a0Section 12(a) of the Act, 29 U.S.C. ? 661(a). Presently, the Commission has two membersas a result of a vacancy.[[3]] As the Fifth Circuit, citing language in the Supreme Court’s decision in Leon,stated in Davis Metal Stamping, Inc. v. OSHRC, 800 F.2d 1351, 1354, n.2 (5th Cir.1986), a reviewing body may exercise discretion in its decision-making process on issuesof probable cause.\u00a0 It may deal directly with probable cause issues, or proceed to aconsideration of the officer’s good faith without resolving the fourth amendment issues.\u00a0 In this case, Commissioner Wall considers it to be a close question as to whetherthe warrant was supported by probable cause.\u00a0 Therefore, he concludes that it wouldbe better to allow the parties to complete the record on good faith, since that issue maybe dispositive, rather than to review the parties’ probable cause arguments at this time.[[4]] Administrative Law Judge John S. Patton is no longer with the Commission.”