689 F.2d 950 (11th Cir. 1982), 80-7898, West Point-Pepperell, Inc. v. Donovan

Docket Nº:80-7898.
Citation:689 F.2d 950
Party Name:P 26,275 WEST POINT-PEPPERELL, INC., Plaintiff-Appellee, v. Raymond J. DONOVAN, Secretary of Labor, U. S. Department of Labor, et al., Defendants-Appellants.
Case Date:October 21, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 950

689 F.2d 950 (11th Cir. 1982)

P 26,275

WEST POINT-PEPPERELL, INC., Plaintiff-Appellee,

v.

Raymond J. DONOVAN, Secretary of Labor, U. S. Department of

Labor, et al., Defendants-Appellants.

No. 80-7898.

United States Court of Appeals, Eleventh Circuit

October 21, 1982

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Lawrence E. Gill, Atlanta, Ga., Charles I. Hedden, Allen H. Feldman, Andrea C. Casson, U. S. Dept. of Labor, Washington, D. C., for defendants-appellants.

Costangy, Brooks & Smith, Charles A. Edwards, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN [*], District Judge.

KRAVITCH, Circuit Judge:

This is an interlocutory appeal under 28 U.S.C. § 1292(a)(1) from the grant of a preliminary injunction by the district court staying the execution of an OSHA inspection warrant issued by a duly authorized magistrate. 1 After conducting an evidentiary hearing the district court issued the injunction primarily on the basis that the warrant was not supported by probable cause. The court also found that the warrant was overly broad. We agree with appellant that the district court erred in both conclusions.

I.

Appellee, West Point-Pepperell, Inc. (WPP), operates a cotton mill at Lindale, Georgia. Pursuant to OSHA regulations, WPP instituted a program requiring employees to wear respirators when working in areas of the mill in which cotton dust exceeded permissible exposure levels. In response to the program, WPP employees sent a petition and numerous letters to OSHA and others, complaining about the OSHA's cotton dust and respirator regulations and insisting that employees informed of the hazards of cotton dust should be required to wear respirators only on a voluntary basis. At least one of the letters received by OSHA stated that use of the respirators was causing physical ailments such as nausea, headaches, dizziness, and fainting. 2 Pursuant to the agency's internal

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complaint verification procedures, 3 OSHA conducted off-site interviews of 57 employees who had signed either the petition or letters. The interviews allegedly revealed that the employees disliked wearing the respirators, that seven interviewees had fainted as a result of such use, and that several complained that the respirators made breathing difficult, caused chest pain and dizziness, and interfered with their vision. Moreover, the interviews indicated that the employees were not aware of having been medically examined to determine their physical ability to wear respirators.

Based upon this information, the agency decided that there were reasonable grounds to suspect violations of OSHA's respirator and cotton dust standards, and on July 8, 1980, attempted to conduct an inspection of the mill. OSHA compliance officers held an opening conference with WPP representatives and walked through the plant to orient themselves with its layout. During that time, two agency physicians conducted interviews of 13 WPP employees and learned that workers received little or no instruction on the adverse health effects of cotton dust. A few had seen a company-produced film on cotton dust hazards, but in almost all cases, the employees had not had personal discussions with company officials on the subject. Moreover, the interviews also revealed that most workers received no medical evaluation prior to their being given respirators; that many employees experienced symptoms of fainting, dizziness, blackouts, "phobia," nervousness, shortness of breath, breathing difficulty, chest pains, nausea, and blurriness of vision; that although 24 employees reported to the clinic with these symptoms, none were medically examined; that the company made no evaluation of fit when the respirators were issued, although a few employees received instructions on how to insure a proper fit; and that an employee whose own physician determined him unsuited to wear a respirator was transferred to another department in the mill but with a severe cut in pay.

After the interviews were completed and the compliance officers returned from their general walk-around, the company refused to permit OSHA to continue with its inspection. The following week representatives of both parties met to review the attempted inspection. The company's respirator program was discussed and its training film viewed. Moreover, WPP identified fourteen areas of the mill that its monitoring indicated were above permissible cotton dust exposure levels and admitted that the use of respirators was required in those areas. WPP had hoped that the information provided at the meeting would be sufficient to evaluate the employee complaints, obviating the need for an inspection. The company continued to refuse OSHA permission to inspect the mill.

On July 28, 1980, OSHA applied to a federal magistrate for an administrative warrant for inspection of WPP's Lindale facility. Based upon the 70 employee interviews, OSHA averred that seven specific violations of OSHA cotton dust and respirator regulations may exist or have existed at the Lindale mill. 4 The application also stated

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that the requested inspection differed from prior OSHA inspections of the mill because it was based upon the respirator and new cotton dust standards, rather than the old cotton dust standards. In support of the application, OSHA provided the magistrate with a copy of the employee petition, an employee letter representative of those received by the agency, and the relevant OSHA regulations. The magistrate granted the warrant, limiting it in scope to "as much of the workplace as is reasonably necessary" to investigate compliance with respirator and cotton dust standards. The warrant specifically designated 10 areas of the mill in which OSHA could place air sampling devices (vertical elutriators) for the testing of cotton dust levels.

The next day, and before the warrant was executed, WPP brought this action in federal district court, seeking to enjoin the execution of and quash the warrant. It alleged that the inspection and warrant were contrary to OSHA's internal operating procedures which preclude follow-up inspections when a citation is under contest, 5 that there was no probable cause to support the issuance of the warrant, that OSHA regulations do not permit ex parte warrants, and that the WPP would suffer irreparable harm if the agency were allowed to conduct its inspection. On August 4, 1980, the district court granted a 15-day temporary restraining order and ordered the Secretary of Labor to show cause why a preliminary injunction should not issue. A hearing on the preliminary injunction was held on August 19 and 22, 1980. Finding that the warrant was issued in the absence of probable cause, the district court granted a preliminary injunction and quashed the warrant. The court also addressed several other issues, including the scope of the warrant, which it found to be overly broad. 6

II.

  1. Standard of Reviewing the Issuance of the Preliminary Injunction

    We begin by observing that the grant or denial of a preliminary injunction

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    rests in the sound discretion of the district court. The court's discretion, however, is not unbridled. "It must exercise that discretion in light of what we have termed 'the four prerequisites for the extraordinary relief of preliminary injunction.' " Canal Authority of the State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (citing Allison v. Froehlke, 470 F.2d 1123, 1126 (5th Cir. 1972)). The four prerequisites are 1) a substantial likelihood that the movant will prevail on the merits; 2) a substantial threat that the movant will suffer irreparable injury if the injunction is not granted; 3) that the threatened injury to the movant outweighs the threatened harm an injunction may cause the opponent; and 4) that granting the preliminary injunction will not disserve the public interest. Southern Monorail Co. v. Robbins & Myers, Inc., 666 F.2d 185 (5th Cir. 1982); Canal Authority of State of Florida v. Callaway, supra, 489 F.2d at 572. A preliminary injunction may issue only if the movant carries the burden of persuasion as to all four prerequisites. Id. Here, the district court concluded that the appellee met its burden of persuasion by establishing that the agency lacked probable cause to obtain the warrant. 7 OSHA contends that the district court erred in finding no probable cause, and urges us to find that the court abused its discretion in granting the preliminary injunction.

  2. The Finding of Probable Cause

    The Secretary of Labor is authorized by Section 8 of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 657, to conduct health and safety inspections of workplaces within the Act's jurisdiction. Section 8(a) clothes the Secretary with the general power to enter and inspect workplaces in order to carry out the purposes of the Act; 8 section 8(f)(1) specifically requires the Secretary to conduct a "special inspection" as soon as practicable whenever the Secretary receives a written employee complaint that leads the Secretary reasonably to believe that a violation exists at the workplace. 9 Neither provision expressly

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    states that the Secretary must secure a warrant before conducting a search. The Supreme Court, however, in addressing the propriety of warrantless nonconsensual searches under section 8(a) has held that the Fourth Amendment requires that an administrative search warrant be obtained prior to such inspections. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Similarly, the Secretary must procure a warrant before conducting a nonconsensual search under...

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