Plum Creek Lumber Co. v. Hutton
| Decision Date | 26 November 1979 |
| Docket Number | Nos. 78-3181,78-3244,s. 78-3181 |
| Citation | 608 F.2d 1283 |
| Parties | 7 O.S.H. Cas.(BNA) 1940, 1979 O.S.H.D. (CCH) P 24,049 PLUM CREEK LUMBER COMPANY, Plaintiff-Appellee, v. Harry C. HUTTON, Area Director, Fred Bruno, Compliance Officer OSHA U. S. Department of Labor, F. Ray Marshall, Secretary of U. S. Department of Labor, Defendant-Appellant. PLUM CREEK LUMBER COMPANY, Plaintiff-Appellant, v. Harry C. HUTTON, Area Director, Fred Bruno, Compliance Officer OSHA U. S. Department of Labor, F. Ray Marshall, Secretary of U. S. Department of Labor, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George J. Tichy, Spokane, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the District of Montana.
Before HUFSTEDLER and KILKENNY, Circuit Judges, and GRANT, District Judge. *
This is an appeal from a final decision of the United States District Court denying relief on the complaint of Plum Creek Lumber Company (Plum Creek) and on the counterclaim of the Occupational Safety and Health Administration (OSHA).
The primary issue is whether the district court has the power to order an employer to rescind its policy of forbidding employees to wear OSHA air-quality and noise-level testing devices. Jurisdiction exists pursuant to 28 U.S.C. §§ 1291 and 1294.
Plum Creek is a Minnesota corporation with manufacturing facilities for lumber, plywood, and fiber board in Columbia Falls, Montana. On January 17, 1978, Fred Bruno, an OSHA Compliance Officer, visited Plum Creek's Columbia Falls workplace to investigate an explosion which had injured two Plum Creek employees. During the course of his inspection, Bruno observed conditions and practices unrelated to the explosion that appeared to violate OSHA standards. He also received a written and two oral complaints alleging various unsafe working conditions from Plum Creek employees. Finally, Bruno examined the OSHA required accident reports kept by Plum Creek and discovered records of accidents which may have resulted from the failure of employees to use personal protective equipment as required by OSHA regulations.
Bruno reported his observations, the three employee complaints, and the information contained in the accident reports to the Area Director of OSHA's Billings, Montana office. The Director then ordered complete health and safety inspections of Plum Creek's Columbia Falls facilities. On January 31, 1978, Bruno and Bobby Glover, an OSHA industrial hygienist, arrived at the workplace and announced that they would be inspecting the fiber board plant (whence came the employee complaints), the sawmill, and the plywood plant, and that they would be requesting employees to wear noise-level testing devices called "dosimeters," and air contaminant samplers. 1 However, the company told them that the inspection would be limited to the fiber board area, and that the employees would be forbidden to wear the testing devices.
Thereupon, Bruno and Glover terminated the inspection and left the workplace.
OSHA then applied for an inspection warrant, and the appropriate federal magistrate issued one. Inspection was again attempted on February 6, 1978, but the Plum Creek safety officer refused to comply with the warrant. The inspectors then withdrew. Another warrant was obtained, this time directed to the "U.S. Marshal or Anyother (sic) Authorized Officer," and authorizing inspection "including air sampling and noise level testing in a reasonable manner and to a reasonable extent, the workplaces or environments where work is performed. . . ."
However, on February 8, 1978, before the second warrant had been executed, Plum Creek filed a complaint with the district court, alleging that the proposed inspection would violate the company's Fourth Amendment rights. It also alleged that the air sampling and noise testing devices sought to be used were: (1) unreliable because an employee could sabotage their use; and (2) dangerous because they could distract employees or cause them to become entangled in moving equipment, and, therefore, an unreasonable means of inspecting. The company requested a declaratory judgment that the issuance of a warrant is not authorized by the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, Et seq.). Plum Creek also requested an order quashing the warrants as overly broad and issued without probable cause, as well as an order that personal air sampling and noise testing were beyond the scope of the warrants as issued. The district court granted a temporary restraining order pending a hearing on the following day.
On the basis of the evidence adduced at the hearing and argument from counsel, the district court refused to extend the temporary restraining order, but did not direct Plum Creek to permit or to require its employees to wear the testing devices.
On February 13, 1978, OSHA industrial hygienists began their inspection of Plum Creek's facilities. At that time, they observed a February 10, 1978 notice to employees posted throughout the workplace stating that the wearing of noise and air sampling devices was against company policy. Nevertheless, the inspectors requested twenty-two employees to wear the devices. Sixteen of these employees refused. Of the six who agreed, three changed work shifts and only the remaining three employees actually wore the testing devices. As a result of this limited participation, OSHA's investigation of the noise and air contamination problems it believed existed in the workplace was inconclusive.
Subsequently, the answer to Plum Creek's complaint was filed together with a counterclaim and an application for a temporary restraining order. The counterclaim requested the district court to enjoin Plum Creek from impeding the OSHA investigation through its policy proscribing employee cooperation in sampling. The district court refused to issue the restraining order, but ordered a hearing on the subject.
Subsequently, the district court denied relief on both the company's claim and the Secretary's counterclaim. The district court found "that the testing devices are valuable tools; that the use of them would be reasonable; that a reasonable employer measuring the risk to employees from noise and air pollution as against the risk from accident would permit employees to wear them." The court, however, also noted that Plum Creek bears all the safety risks and pays the costs of all industrial accidents, and that OSHA could not guarantee that the testing devices would not cause any accidents. The court held that in the absence of a law requiring Plum Creek to accept the minimal risk, neither OSHA nor the court has the power to make Plum Creek rescind its policy of forbidding employees to wear the testing devices, merely because OSHA and the court believe use of the devices is a reasonable means of performing the inspection.
Plum Creek advances several challenges to the validity of the search warrants and the OSHA safety and health standards contained The Secretary of Labor, acting through OSHA compliance officers is invested with carefully limited authority to enter and inspect workplaces for occupational hazards "at reasonable times . . . within reasonable limits and in a reasonable manner." 29 U.S.C. § 657(a). In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court held that warrantless inspections pursuant to the Occupational Safety and Health Act are unconstitutional. Plum Creek contends that because the Supreme Court declared warrantless inspections unconstitutional, and because the Act does not specifically authorize inspections pursuant to a warrant, no nonconsensual administrative searches are possible under the Act. However, the court in Barlow's implied that searches pursuant to a warrant are contemplated by the Act and regulations. (436 U.S. at 317-18, 98 S.Ct. 1816). On a set of facts almost identical to those before us, the Tenth Circuit held that OSHA administrative searches pursuant to a warrant are authorized by statute and regulations. Marshall v. W. & W. Steel Co., Inc., 604 F.2d 1322 (CA10 1979). We agree. To hold otherwise would be to rule that inspections under the Act could only occur when an employer consents. Such a holding would frustrate the purposes of the Act and be susceptible to abuse by employers who could simply refuse to allow inspections.
in 29 C.F.R. § 1910.95. We shall dispose of these issues before moving onto the primary one of whether the district court has the power to order Plum Creek to rescind its policy forbidding employees to wear the noise level and air contaminant sampling devices.
Plum Creek also contends that the Fourth Amendment makes no distinction between the probable cause standard in the criminal sense and the standard for administrative searches. Therefore, it argues, a lesser showing of probable cause standard for administrative searches is unconstitutional. The Supreme Court destroyed this argument in Barlow's. We quote:
436 U.S. at 320, 98 S.Ct. at 1824. (Emphasis supplied.)
The facts in the instant case satisfy the tests established by the...
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