Reich v. Manganas

• Decision Date: 27 November 1995
• Docket Number: No. 94-3698,94-3698
• Citation: 70 F.3d 434
• Parties: , 17 O.S.H. Cas. (BNA) 1444, 1995 O.S.H.D. (CCH) P 30,922 Robert REICH, Secretary of Labor, Plaintiff-Appellee, v. Andrew MANGANAS and Manganas Painting Company, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 434

70 F.3d 434

64 USLW 2368, 17 O.S.H. Cas. (BNA) 1444,

1995 O.S.H.D. (CCH) P 30,922

Robert REICH, Secretary of Labor, Plaintiff-Appellee, v. Andrew MANGANAS and Manganas Painting Company, Inc.,

Defendants-Appellants.

No. 94-3698.

United States Court of Appeals,

Sixth Circuit.

Argued Sept. 26, 1995.

Decided Nov. 27, 1995.

Edward Falkowski (argued and briefed), Barbara Werthmann, U.S. Department of Labor, Office of Solicitor, Washington, DC, for Plaintiff-Appellee.

Roger L. Sabo (argued and briefed), Schottenstein, Zox & Dunn, Columbus, OH, for Defendants-Appellants.

Before: JONES and DAUGHTREY, Circuit Judges; GIBSON, ^* District Judge.

DAUGHTREY, Circuit Judge.

The defendants-appellants, Andrew Manganas and Manganas Painting Co., Inc., appeal from an order mandating compliance with the terms of an administrative subpoena issued on behalf of the Occupational Safety and Health Administration. Before this court, the defendants contend that Sec. 10(b) of the Occupational Safety and Health Act, 29 U.S.C. Sec. 659(b), excuses such compliance while the employer is awaiting an administrative decision on earlier alleged violations of the Act. We conclude that the defendants read the protective language of Sec. 10(b) too broadly and affirm the judgment of the district court in all respects.

PROCEDURAL AND FACTUAL BACKGROUND

Andrew Manganas is the vice-president of Manganas Painting Co., Inc., a Pennsylvania corporation that contracted with the Ohio Department of Transportation to paint interstate highway bridges spanning the Little Miami River near Lebanon, Ohio. During the summer and early fall of 1993, the company conducted blasting operations at the site to prepare the bridges for repainting. As a result of those operations, employees of the company were exposed to high levels of lead. In fact, in late July 1993, a physician at the University of Pittsburgh Medical Center contacted OSHA to report his treatment of a Manganas employee suffering from excessive lead exposure as a result of working at the bridge site.

Subsequent investigations at the site by OSHA inspectors confirmed the fact that recently promulgated interim standards for lead exposure, 29 C.F.R. Sec. 1926.62, were being violated by Manganas in its work. Before all administrative data collection and analysis regarding the matter could be completed, however, Manganas ceased its operations at the site for the duration of the 1993-1994 winter season. Nevertheless, on February 1, 1994, OSHA issued citations to the company for 30 "serious" violations and 18 "willful" violations of applicable regulations in 1993 and assessed penalties against the company totaling $1,319,850. Manganas disputed the allegations and, on February 17, 1994, filed a notice of contest with the Occupational Safety and Health Review Commission.

In March of 1994, OSHA sent correspondence to Manganas prior to the initiation of the abrasive blasting on the bridges scheduled for the spring and summer. In that letter, the agency requested from the company "written documentation which specifies what actions have been or will be taken to ensure that employees will not be exposed to imminent danger conditions during your 1994 abrasive blasting season." Furthermore, OSHA suggested that exposure of employees to such imminent danger conditions could be avoided by ensuring that workers exposed to airborne lead levels greater than 50 micrograms per cubic meter are protected by Manganas replied to the written request for information with a letter advising OSHA of the company's belief that the filing of a notice of contest to the allegations of 1993 violations "operates as a stay of any further proceedings to enforce this Act, including compliance." The company thus did not produce the information sought by OSHA.

"proper respirators," "an effective respirator program," and "proper respirator fit testing and training," and that employees with blood lead levels greater than 50 micrograms per deciliter "are receiving medical surveillance and medical removal protection in accordance with 29 C.F.R.1926.62(j) and (k)."

In response, the agency issued an administrative subpoena duces tecum directing Andrew Manganas to appear on June 15, 1994, to provide the following information:

1) Air sampling for lead performed by or for the Manganas Painting Co., Inc. during 1994; 2) Sampling and analysis for lead and zinc protoporphyrin levels in the blood of persons who have worked for Manganas Painting Co., Inc. during 1994; 3) Fit testing of persons, who have worked for Manganas Painting Co., Inc., for respiratory protection; 4) The manufacturer, model number and type of respiratory protection being worn by each employee; 5) Training of employees concerning the donning, wearing, use, removal, cleaning and storage of respirators.

The subpoena was personally served upon Andrew Manganas on May 23, 1994, but he failed to appear as directed. OSHA then filed suit in district court seeking enforcement of its subpoena.

Before the district court, Manganas again argued that the provisions of 29 U.S.C. Sec. 659(b) toll the running of the time period provided to correct OSHA violations "until the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties." Consequently, the company contended, OSHA could not seek further information regarding the challenged violations during the pendency of the administrative proceedings.

The district court agreed with Manganas that OSHA was statutorily precluded from requiring the company to provide additional information relating to the alleged 1993 violations of the Act during the period in which the OSHRC was considering the contested matter. The court found, however, "that as far as the operation in 1994 is concerned, that the OSHA has an obligation and a duty and a statutory right to investigate conditions as they exist today." (Emphasis added.) The court thus ordered Manganas to comply with the subpoena, but limited the subpoena's applicability to "matters arising after March, 1994." It is from this order that the defendants now appeal.

ANALYSIS

The Occupational Safety and Health Act was enacted explicitly "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." 29 U.S.C. Sec. 651(b). In furtherance of that goal, Congress provided:

Each employer shall make, keep and preserve, and make available to the Secretary ... such records regarding his activities relating to this chapter as the Secretary ... may prescribe by regulation as necessary or appropriate for the enforcement of this chapter or for developing information regarding the causes and prevention of occupational accidents and illnesses.

29 U.S.C. Sec. 657(c)(1). Furthermore, 29 U.S.C. Sec. 657(b) states broadly, and without limitation, that "[i]n making his inspections and investigations under this chapter, the Secretary may require the attendance and testimony of witnesses and the production of evidence under oath."

Manganas insists, however, that the Secretary's right to obtain such information or issue such subpoenas is limited by the provision in 29 U.S.C. Sec. 659(b), which explains that the period permitted for correction of cited OSHA violations "shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section...." Because Manganas sought administrative review of the...