13 F.3d 1160 (7th Cir. 1994), 93-1082, Matter of Establishment Inspection of Kelly-Springfield Tire Co.

Docket Nº:93-1082.
Citation:13 F.3d 1160
Party Name:In the Matter of The ESTABLISHMENT INSPECTION OF the KELLY-SPRINGFIELD TIRE COMPANY. Robert B. REICH, [*] Secretary of Labor, Petitioner-Appellee, v. KELLY-SPRINGFIELD TIRE COMPANY, Respondent-Appellant, and Gary Kiefer and Duane Bartelt, Respondents.
Case Date:January 18, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1160

13 F.3d 1160 (7th Cir. 1994)

In the Matter of The ESTABLISHMENT INSPECTION OF the

KELLY-SPRINGFIELD TIRE COMPANY.

Robert B. REICH, [*] Secretary of Labor,

Petitioner-Appellee,

v.

KELLY-SPRINGFIELD TIRE COMPANY, Respondent-Appellant,

and

Gary Kiefer and Duane Bartelt, Respondents.

No. 93-1082.

United States Court of Appeals, Seventh Circuit

January 18, 1994

Argued Sept. 22, 1993.

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[Copyrighted Material Omitted]

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Eileen M. McCarthy, Dept. of Labor, Appellate Litigation, Donald S. Shire, Sol. Gen., Ann Rosenthal, Dept. of Labor, Office of the Solicitor, Washington, DC, Cyrus A. Alexander, Dept. of Labor, Chicago, IL, Barbara A.W. McConnell (argued), Dept. of Labor, Occupational Safety Health Review, Washington, DC, for petitioner-appellee.

Nancy G. Lischer, Hinshaw & Culbertson, Chicago, IL, James R. Pirages, Thomas H. Riley, Jr. (argued), Hinshaw & Culbertson, Rockford, IL, for respondent-appellant.

Before COFFEY and EASTERBROOK, Circuit Judges, and FOREMAN, District Judge. [**]

COFFEY, Circuit Judge.

The appellant, Kelly-Springfield Tire Company ("Kelly-Springfield"), appeals the December 11, 1992 order of the United States District Court refusing to quash an administrative warrant and holding Kelly-Springfield in contempt for refusing to submit to the administrative search warrant. We affirm, 808 F.Supp. 657.

BACKGROUND

On February 3, 1992, OSHA received a brief, written complaint (two sentences) from a Kelly-Springfield employee regarding the working conditions in the plant. OSHA compliance officers interviewed the complaining employee on August 18, 1992 and again on October 15, 1992 to verify that the alleged harmful conditions persisted. OSHA attempted to obtain consent to inspect the plant but consent was refused because Kelly-Springfield would not allow the inspectors to use video cameras. Thus on October 21, 1992 OSHA obtained a search warrant based on the employee complaint. That same day, when OSHA's compliance officers attempted to enter the plant, Kelly-Springfield denied admission to the plant because the warrant was based on an employee complaint that failed to satisfy the statutory requirement of "reasonable particularity." 29 U.S.C. Sec. 657(f)(1). OSHA subsequently withdrew its application for the warrant and interviewed the complaining employee for a third time on October 27, 1992. OSHA obtained additional factual information tending to support the employee's complaint that unsafe conditions were present in the plant such as the fact that the complainant had had surgery for carpal tunnel syndrome (a letter from the employee's physician confirmed this). On November 9, 1992, OSHA appeared before a U.S. Magistrate Judge with

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an application for an inspection warrant pursuant to Sec. 8(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 657(a). The initial employee complaint along with OSHA's subsequent interviews with the employee revealed the following evidence which was presented to the magistrate in the application for the warrant:

"1. There are approximately 70 employees on the first shift in the passenger tire building whose duties entail the construction of tires on a machine.

  1. The construction of tires requires the employees to perform a substantial number of repetitive tasks.

  2. Between 10 and 30 tires are built per hour. Each tire requires multiple manual operations performed in sequence.

  3. Each manual operation necessitates hand manipulation to produce the finished product.

  4. As a result of this multiple hand manipulation, five employees have required surgery to correct carpal tunnel syndrome (CTS).

  5. In addition to the surgeries to correct CTS, at least 10 employees have received medical treatment and/or surgery for job related repetitive motion trauma (RMT) of the shoulder, back, neck, elbow, wrist and/or hand. The complainant estimates that between 20 and 25 employees have been off work or on light duty due to job related RMT and that some additional employees are experiencing RMT but have not sought medical attention for fear of reprisal.

  6. Complainant alleges that he has observed approximately 20 of the 70 first shift employees wearing braces of some type at various times."

Based on the above-mentioned facts acquired from OSHA's three interviews of the complainant and their expertise in workplace safety and injuries, OSHA applied for an inspection warrant. Because the alleged violations involved ergonomics, 1 OSHA requested in the warrant the right to videotape Kelly-Springfield employees at their work stations. The warrant was granted but Kelly-Springfield denied access to the plant when OSHA attempted to execute the warrant. On November 10, 1992, Kelly-Springfield moved the district court for an order to quash the warrant arguing that issuance of the warrant violated Kelly-Springfield's Fourth Amendment rights for (1) the information contained in the warrant application failed to establish probable cause, and (2) a warrant allowing the use of a videotape was unconstitutionally overbroad. On the same day, OSHA filed a petition for a rule to show cause why Kelly-Springfield should not be held in contempt. After oral hearings in district court on November 18 and 19, 1992, the district judge issued an opinion denying the motion to quash and denying OSHA's request to hold Kelly-Springfield in contempt. The court subsequently vacated and withdrew the original opinion and on December 9, 1992 issued another opinion denying the motion to quash but finding Kelly-Springfield in contempt of court and imposing a fine in the amount of "$100 for its initial refusal to comply with the warrant and a fine of $1,000 per day for noncompliance with any further execution of the warrant and decision of this court." Kelly-Springfield filed a timely notice of appeal on January 8, 1993. On January 22, 1993, Kelly-Springfield filed a motion with this court requesting a stay pending appeal. On January 29, 1993, Judge Easterbrook denied Kelly-Springfield's motion for stay pending appeal. On February 1, 1993, three OSHA inspectors appeared at the Kelly-Springfield plant with video equipment

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requesting entry to conduct the inspection. Kelly-Springfield once again denied entrance to the inspectors in order to preserve its appeal and incurred a $1,000 fine as set forth in the district court's order. The following day, February 2, Kelly-Springfield permitted the OSHA inspectors began their investigation with video cameras at the Kelly-Springfield plant.

ISSUES

The appellant challenges the district court's holding of Kelly-Springfield in contempt on two grounds: (1) that the warrant allowing OSHA to videotape was overbroad and, (2) that there was no probable cause to issue the warrant.

DISCUSSION

The Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651 et seq., has as its purpose "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources...." Id. Sec. 651(b). Under the Act, "Each employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees...." Id. Sec. 654(a) [hereinafter the general duty clause]. In order to insure compliance with the Act as well as health and safety standards, the Secretary is authorized to enter and inspect workplaces for violations of the same.

A.

The first issue Kelly-Springfield raises is whether the statute or regulations authorize OSHA to record its inspection on videotape, and if not, whether a warrant authorizing videotaping is unconstitutionally overbroad. As we stated in Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir.1980), "[t]he ultimate requirement of the Fourth Amendment is that any proposed search or inspection be reasonable." Id. at 1325 (citing Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967)). Thus our inquiry is centered on whether videotaping is a reasonable information gathering technique for OSHA to employ when investigating ergonomics violations.

29 C.F.R. Sec. 1903.7 authorizes OSHA "to take or obtain photographs related to the purpose of the inspection [and] employ other reasonable investigative techniques." The Secretary argues that the use of videotape during an inspection is authorized by internal OSHA directives and is a common and well-established OSHA practice. The Secretary also maintains that OSHA need not have specific regulatory authority for each and every one of its inspection and investigational procedures. "[N]ot all delegations of authority 'must be published in order to be effective. Under the provisions of 5 U.S.C. Sec. 552, the requirement for publication attaches only to matters which if not published would adversely affect a member of the public.' " In re Establishment Inspection of Microcosm, 951 F.2d 121, 125 n. 4 (7th Cir.1991) (quoting Hogg v. United States, 428 F.2d 274, 280 (6th Cir.1970)), cert. denied, ---...

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