Hern Iron Works, Inc.

“Docket No. 88-1962 SECRETARY OF LABOR,Complainant,v.HERN IRON WORKS, INC.,Respondent.OSHRC Docket No. 88-1962ORDER OF REMANDBefore: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION:This case is before the Commission pursuant to the Commission’sorder of March 6, 1989, granting the Secretary’s petition for interlocutory review. Atissue before the Commission is whether the administrative law judge properly granted amotion from Hern Iron Works, Inc. (\”Hern\”), made at the start of the hearing onFebruary 14, 1989, to postpone the hearing for 150 days. The Commission Rule at 29 C.F.R.? 2200.62(a) provides that \”[a] hearing may be postponed by the Judge on his owninitiative or for good cause shown upon the motion of a party.\” We conclude that thejudge did not have good cause for granting Hern’s motion. Therefore, we reverse his ordergranting the motion and remand the case to him.We first note that the motion was not filed in accordance withthe Commission Rule at 29 C.F.R. ? 2200.62(c), which states:A motion to postpone a hearing must be received at least seven days prior to the hearing.A motion for postponement received less than seven days prior to the hearing willgenerally be denied unless good cause is shown for late filing.Hern did not offer any explanation for not filing the motionbefore the hearing.[[1\/]] Absent a showing of good cause for the late filing, the judgeshould not have considered the motion. The parties and all the witnesses were in thehearing room and were ready to proceed. Postponing the hearing at that point would onlyhave been justified by the most exigent circumstances.Hern did not assert any exigent circumstances, or indeed anygood reason for delaying the hearing. Hern contended that the hearing would be renderedunnecessary if the United States Court of Appeals for the Ninth Circuit, in a case inwhich oral argument had been held the week before, finds invalid the search warrant thatthe Secretary’s agents possessed when they attempted to inspect Hern’s worksite. However,in the ordinary case, a hearing should not be postponed simply because a court decision ina collateral proceeding might resolve a legal issue that is present in the case.Postponement of a case under these circumstances amounts to an indefinite stay ofthe proceedings since neither the Commission judge nor the parties have any control overthe timing of the court’s decision.[[2\/]]If the Ninth Circuit upholds the validity of the warrant, thehearing will have been delayed for no reason. A Ninth Circuit decision favorable to Herncan be taken into account after the hearing, either through briefs the parties file withthe judge, or through the process by which they can seek review of the judge’sdecision.[[3\/]] In an appropriate case, a postponement might be justified if it wouldprevent the potential waste of substantial resources by the parties. Here, however, theparties estimated that it would take no longer than four hours to try the entire case, andthe witnesses were already present in the hearing room.Finally, we note that our rules do not favor longpostponements. Rule 62(d), 29 C.F.R. ? 2200.62(d), requires that \”[n]o postponementin excess of 60 days shall be granted without the concurrence of the Chief AdministrativeLaw Judge.\” There is no indication in the record that the judge conferred with theChief Administrative Law Judge before granting the postponement.For the reasons stated above, we reverse the judge’s ordergranting Hern’s motion to postpone the hearing for 150 days. We remand the case to thejudge for prompt action consistent with our order of expedited proceedings in this case,which was issued pursuant to the Commission Rule at 29 C.F.R. ? 2200.103(a) as part ofour order of March 6, 1989, granting the petition for interlocutory review.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 20, 1989ELIZABETH L. DOLE (successor toANN McLAUGHLIN), Secretary of Labor,United States Department of Labor,Complainant,v.HERN IRON WORKS, INC.,Respondent.OSHRC Docket No. 88-1962PETITION FOR INTERLOCUTORY REVIEWComes Now the Secretary of Labor, by and through herundersigned representatives who petitions the Occupational Safety and Health ReviewCommission for Interlocutory review pursuant to 29 C.F.R. Part 2200.73.Interlocutory review is proper pursuant to 29 C.F.R. Part2200.73(a)(1). The review involves an important question of law or policy about whichthere is substantial grounds for difference of opinion and immediate review of the rulingmay materially expedite the final disposition of the proceedings.Dated February 22nd, 1989.Respectfully Submitted,Robert A. Friel Associate Regional SolicitorCathy L. BarnesAttorneyU.S. DEPARTMENT OF LABORELIZABETH L. DOLE (successor toANN McLAUGHLIN), Secretary of Labor,United States Department of Labor,Complainant,v.HERN IRON WORKS INC.,Respondent.OSHRC Docket No. 88-1962MEMORANDUM OF LAW SUPPORTING MOTION FOR INTERLOCUTORY REVIEWI A. 29 C.F.R. PART 2200.63 WAS VIOLATED BY THE ADMINISTRATIVELAW JUDGE’S ACTION29 C.F.R. Part 2200.63 states that \”stays aredisfavored.\” The movant is required to serve a copy of his motion for a stay on theChief Administrative Law Judge. 29 C.F.R. Part 2200.63 presupposes that the movant shallprovide as much advance notice as possible before the motion is made. 29 C.F.R. Part2200.63 was violated in that the movant placed counsel for Complainant and theadministrative law judge in the position of responding to an untimely motion for a staywithout any advance notice of the Motion.Adequate notice was particularly warranted in light of the factthat pursuant to the prehearing order of the administrative law judge, all representativeswere to be present in Coeur D’Alene, Idaho with their witnesses and they were to beprepared for hearing.Counsel for Respondent misrepresented facts (see affidavitsupporting this motion) which were pertinent to Judge Loye’s ruling on the stay. Counselfor Complainant, on the other hand, had no opportunity to consult with Appellate counselin Washington, D.C. to attempt to verify Mr. Herbert’s representations. Counsel forcomplainant was forced to accept these representations because the court agreed to hearthis untimely motion for a stay. This scenario is precisely why stays are disfavored andwhy adequate notice is required to allow all concerned to address the reasonableness ofthe stay.B. THE STAY GRANTED HEREIN WAS UNREASONABLEThe grant of a stay was unreasonable. The period of 150 dayswas ascertained from Respondent’s counsel who represented that Circuit Court DocketNumbers 88-4065 and 88-4193 would be dispositive of the issues in this enforcement actionand would render the hearing before the administrative law judge moot. Counsel furtherargued that a 150 day stay was appropriate because the two cases were briefed already byappellate counsel and argued already before the Ninth Circuit. This is false.The Respondent is the appellant before the Ninth Circuit Courtof Appeals in not one but three pending appeals of U.S. District Court rulings in favor ofthe Complainant. (See attached Exhibit 1).In the first proceeding, docketted as #88-3668, the Respondenthas appealed the District Court’s Order of November 19, 1987 in which the Court determinedafter adversary proceedings that the June 11, 1987 Warrant was valid and that theRespondent was in contempt of court for its failure to honor the warrant on June 23 and24, 1987 (See Exhibits 2 and 3). The validity of the warrant is now an issue before theNinth Circuit in #88-3668. This is the appellate proceeding to which Respondent appears tobe referring in its motion and which was argued on February 7, 1989. (See Exhibit 4). Thatappellate proceeding however relates to various matters all of which occurred well priorto the May 24, 1988 date of the alleged violation at issue in the instant ReviewCommission proceeding.In the other two proceedings, docketted as #88-4065 and#88-4193 and presently consolidated on appeal, the Respondent has appealed the DistrictCourt’s orders of June 13, 1988 denying the Respondent a preliminary injunction and ofAugust 30, 1988 dismissing with prejudice the Respondent’s complaint seeking inter alia adeclaratory judgement that the aforesaid warrant was invalid on May 24, 1988. (SeeExhibits 5 and 6). The issues presented in the consolidated appeals relate to thecircumstances of May 24, 1988, yet the consolidated appeals will not be resolved untilwell beyond 150 days. The Respondent’s brief is not even due until March 13, 1989 (SeeExhibit 7), and oral argument will not be scheduled let alone heard, until after allbriefing has been completed. One cannot anticipate a decision in the consolidated appealsuntil 1990 at best.The Respondent in its motion for a stay of 150 days has soughtto delay the resolution of this proceeding on the basis of one appellate proceeding whichit represents to this tribunal as being capable of rendering this case moot. Should theorder granting a stay of proceedings of 150 days not be vacated, the order will therebyembrace as the law of this case the proposition that further proceedings may be stayedupon the representation that there is pending any appellate litigation which arguablycould render the instant proceeding moot. The Complainant is concerned that uponexpiration of the current 150 day stay the Respondent may then seek a further continuancein delay on the basis of the consolidated appeals with the further representation thatthey are capable of rendering this proceeding moot: through failing to disclose to thistribunal the full scope and expected time frames of all the pending appellate matters (ineach of which attorneys from the Mountain States Legal Foundation are appellate counselfor the Respondent), the Respondent has in effect adopted a piece-meal approach to alonger delay of the resolution of this proceeding. Should #88-3668 not be resolved within150 days, what would prevent the Respondent from seeking a further stay herein until thatproceeding is resolved? When #88-3668 is finally resolved, what would prevent theRespondent from then discovering that the consolidated appeals of #88-4065 and #88-4193relate to some of the very circumstances occurring on May 24, 1988 (the date of thealleged violation herein) and seeking a series of further stays until the consolidatedappeals are resolved? In reality and with the full disclosure of all pending appellatelitigation, the Respondent’s motion for a stay of 150 days is properly viewed as a requestfor a stay until all appellate matters have been resolved, an eventuality which cannot beexpected to occur until 1990. When viewed in such light, the Respondent’s request is infact a request for a stay of at least one year. A complete stay of all proceedings hereinfor such an exceptional length of time is on its face unwarranted and clearly inconsistentwith the prompt and expeditions resolution of this case. 29 C.F.R. Part 2200.67 states inpertinent part: \”It shall be the duty of the Judge to conduct a fair and impartialhearing, to assure that the facts are fully elicited, to adjudicate all issues and avoiddelay\”.II THE APPELLATE COURT CASES WOULD NOT RENDER THIS ENFORCEMENTACTION MOOTRespondent has argued that the Circuit Court is 150 days awayfrom rendering a decision which will make this enforcement action moot. The Circuit courthas been asked to rule on two issues in 88-3668: (1) Whether to uphold the DistrictCourt’s denial of a Motion to Quash the warrant of inspection which Hern Iron Works, Inc.refused to honor on June 23 and June 24, 1987 and (2) whether to uphold the District Courtdecision holding Hern Iron Works in contempt of court for actions arising in 1987. Underno possible scenario will this decision render the enforcement action moot.Circuit court docket numbers 88-4065 and 88-4193 would notrender the enforcement action moot either. Respondent contends on the other hand, that ifthe Circuit Court decides that the service or issuance of the warrant was improper, thisenforcement action will be disposed of, ipso facto.Assuming, for purposes of argument, that the warrant wasimproperly issued or served, the administrative law judge is still left with theobligation pursuant to 29 C.F.R. Part 2200.67 to \”adjudicate all issues\”.Suppression of evidence is not an automatic remedy for a violation of a constitutional,statutory, or regulatory requirement, Smith Steel Casting Co., 1984-1995 CCH OSHD? 27,263, Nos. 80-2069 and 80-2322 (1985), aff’d 800 F.2d 1329 (5th Cir., 1986).The Review Commission has held that evidence obtained in reliance upon a subsequentlyinvalidated warrant is not automatically suppressed. According to Chairman Buckley’s view,\”suppression of evidence is an appropriate sanction where the Secretary actedimproperly in obtaining or executing a warrant and where suppression of evidence can beexpected to deter the Secretary from engaging in similar misconduct in the future\”.Commissioner Cleary concluded that evidence \”may not be suppressed if the Secretaryproceeded in good faith and obtained the evidence in objectively reasonable reliance onthe warrant.\”In Synkote Paint Co. and KDK Upset Forging Co., 1986 CCHOSHD ? 27,675, Nos. 83-2 and 83-152 (1986), The Commission reiterated that the Commissionas an administrative agency in the executive branch may not directly review the decisionof a United States Magistrate or district court judge to issue a warrant. However, theCommission must still decide whether to use the evidence arising from an inspectionconducted pursuant to the warrant. \”In so doing, the Commission may exercise itsinherent authority to determine what evidence will be admissible in its proceedings and inparticular to develop criteria regarding the admission or exclusion of evidence obtainedunder an invalid warrant.\” Commissioner Wall stated that the seminal case on the goodfaith exception to the exclusionary rule, U.S. v. Leon, 468 U.S. 897, 104 S. Ct.3405, 82 L. Ed. 2d 677 (1984), is applicable to cases before the Commission. Hence, in theinstant case, it would be improper not to make findings of fact and conclusions of lawwith respect to the good faith actions of the compliance officers even if the warrant forinspection was suppressed.Therefore, it is an error to stay this enforcement action inlight of pending circuit court matters which won’t be resolved in 150 days as counselmisrepresented and secondly, won’t render moot the court’s duties to decide issues of lawand fact now before the administrative law judge.CONCLUSIONBased on the foregoing, Petitioner requests interlocutory review to avoid unreasonabledelay in this case.Dated February 22nd, 1989.Respectfully Submitted,Robert A. Friel Associate Regional SolicitorBy Cathy L. Barnes AttorneyU.S. DEPARTMENT OF LABORSECRETARY OF LABOR,Complainant,v.HERN IRON WORKS, INC.,Respondent.OSHRC DOCKET NO. 88-1962APPEARANCES: For the Complainant;William W. Kates, Esq., Office of the Solicitor, U. S. Department of Labor, Seattle, WAFor the Respondent:Harvey Richman, Esq., Coeur D’Alene, ID Gary N. Herbert, Esq., Mountain States Legal Foundation, Denver, CODECISION AND ORDERLoye, Judge:This proceeding arises under the Occupational Safety and HealthAct of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the \”Act\”).On May 24, 1988, following receipt of two employee complaints,the Occupational Safety and Health Administration (OSHA), attempted to conduct aninspection at the workplace of Hern Iron Works, respondent in this action, in CoeurD’Alene, Idaho (Tr. 68, 70). Mr. John A. Hern, respondent’s owner, was informed of thereason for the inspection and asked to provide the Compliance officers with OSHA accidentand injury logs as described in 29 CFR ? 1904 (Tr. 71, 73). Mr. Hern asked to be shown awarrant (Tr. 71). A copy of a warrant previously issued in June 1987 was provided Mr. Hern(Tr. 72). After speaking to his attorney, Mr. Hern refused to cooperate with an inspection(Tr. 77-78). Respondent was issued a citation for violation of 29 CFR ? 1904.7 whichrequires that \”[e]ach employer shall provide, upon request, records provided for in? 1904.2, 1904.4, and 1904.5. . .\” i.e. logs and summaries of occupational injuriesand illnesses.The Commission has found ? 1904.7 unconstitutionally invalidinsofar as it \”purports to authorize an inspection of required records without awarrant or its \”equivalent,\” e.g. the employer’s consent or an administrativesubpoena. . .\” Taft Broadcasting Co., Kings Island Division, 13 BNA OSHC 1137(No. 82-1016, 1987), aff’d, 849 F.2d 990 (6th Cir. 1988).There is no question that Hern did not consent to inspection ofits records. No administrative subpoena was produced. The testimony indicates thatalthough the Compliance Officer presented respondent with a year old warrant, theinspection of respondent’s workplace was not instigated for the purpose of executing thatwarrant, but rather was the result of newly received employee complaints. Moreover, theSecretary does not argue that the inspection was authorized by the June 1987 warrant; infact her brief never mentions the warrant.This judge is bound by the holding in Taft Broadcasting Co. In the absence of anyevidence that OSHA’s request for respondent’s records was consented to or authorized byfacially valid compulsory legal process, respondent’s failure to provide the requestedrecords cannot constitute the basis for citation.Findings of Fact and Conclusions of LawAll findings of fact and conclusions of law relevant andnecessary to a determination of the contested issues have been found specially and appearin the decision above. See Rule 52(a) of the Federal Rules of Civil Procedure. ProposedFindings of Fact or Conclusions of Law that are inconsistent with this decision aredenied.Order1. Willful citation 1, item 1 alleging violation of ? 1904.7 is DISMISSED.Benjamin R. LoyeJudge, OSHRCDated: November 15, 1989FOOTNOTES: [[1\/]] The attorney who now represents Hern replaced a different attorney from the sameorganization some six days before the hearing. However, Hern’s counsel did not contendthat he was unfamiliar with the case, and he filed a Witness and Exhibits List on the dayhe began representing Hern. Although the substitution of counsel may have justified somedeviation from the seven-day requirement of section 2200.62(c), there appears to be nojustification for waiting until the hearing had actually begun to file the motion.In this regard, we observe that the notice of hearing wasmailed to the parties on November 2, 1988, over two months before the scheduled hearingdate. Hern’s motion is not based on information it received shortly before the scheduledhearing, but rather on facts that it had been aware of for some time, e.g., pending courtproceedings to which it was a party. We therefore conclude that Hern could and should havemade essentially the same motion it made on February 14, 1989, as soon as it had receivedthe notice of hearing.[[2\/]] The Secretary argues persuasively that, unless Hernreceives the decision it is hoping for from the Ninth Circuit within the 150-daypostponement period, motions for additional postponements will undoubtedly be forthcoming.Hern frankly acknowledges in its submissions that this is its intent.[[3\/]] The judge apparently believed that if he had proceededwith the hearing at the scheduled time, a subsequent Ninth Circuit decision in the warrantcase mentioned by Hern would require him to hold a second hearing. We perceive no reasonwhy a second hearing would be necessary under those circumstances.”