MATTER OF KELLY-SPRINGFIELD TIRE CO.

• Decision Date: 11 December 1992
• Docket Number: No. 91 M 008.,91 M 008.
• Citation: 808 F. Supp. 657
• Parties: In the Matter of the Establishment Inspection of: KELLY-SPRINGFIELD TIRE CO.
• Court: U.S. District Court — Northern District of Illinois

808 F. Supp. 657

In the Matter of the Establishment Inspection of: KELLY-SPRINGFIELD TIRE CO.

No. 91 M 008.

United States District Court, N.D. Illinois, W.D.

December 11, 1992.

Cyrus A. Alexander, U.S. Department of Labor, Office of the Solicitor, Chicago, IL, for plaintiff.

Thomas H. Riley, Jr., Hinshaw & Culbertson, Rockford, IL, for defendant.

AMENDED ORDER OF DECISION

REINHARD, District Judge.

INTRODUCTION

This matter comes before the court on Kelly-Springfield Tire Company's motion to quash an administrative warrant and the Secretary of Labor's motion to show cause why Kelly-Springfield and two of its employees should not be held in civil contempt for their failure to obey the warrant.¹

FACTS

On October 21, 1992, the United States Department of Labor, Occupational Safety and Health Administration OSHA, presented an application for a warrant to inspect the premises of Kelly-Springfield Tire Co., in Freeport, Illinois, based on an alleged employee complaint it had received on February 3, 1992, some eight months earlier. The complaint contained only two sentences and was nonspecific. OSHA obtained a warrant, ex parte, based on this application. On October 22, 1992, Kelly-Springfield filed a motion to quash this warrant, apparently contending that the underlying complaint violated the "reasonable particularity" requirement of 29 U.S.C. § 657(f)(1). When counsel for Kelly-Springfield attempted to set a hearing date for this motion to quash, he was informed that the warrant had been returned and that the application had been withdrawn by OSHA, ex parte, on October 27, 1992.

On November 9, 1992, John A. Rizzo, a compliance officer from OSHA appeared before Magistrate Judge P. Michael Mahoney, ex parte, and presented an application for an inspection warrant in order to inspect the premises of the Kelly-Springfield. The Magistrate Judge issued the warrant.

Compliance officers John A. Rizzo and Julia E. Evans served the warrant upon Duane Bartelt, Manager of Safety Employment and Industrial Hygiene. Bartelt reviewed the warrant and inquired as to whether it was a new complaint. Rizzo replied that it was not, but contained more specific information. Rizzo further stated that he and Evans were there to conduct an inspection and that they intended to videotape the inspection. Bartelt denied Rizzo and Evans access to the plant.

ISSUES

There are three issues raised in this matter: (1) whether there existed probable cause for the issuance of the warrant; (2) whether the language in the warrant was overbroad in scope, in that it allowed for OSHA to inspect areas of the plant not identified in the complaint; and (3) whether the use of videotape is a permissible means of inspecting the ergonomics² of the plant.

DISCUSSION

In enacting the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 651 et seq., Congress declared "it to be its purpose and policy ... to assure as far as possible every working man and woman in the Nation safe and healthful working conditions...." In re Metro-East Mfg. Co., 655 F.2d 805, 807 (7th Cir.1981) (quoting 29 U.S.C. § 651(b)). To carry out the purposes of the Act, the Secretary of Labor (Secretary) is authorized

to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, and materials therein, and to question privately any such employer, owner operator, agent or employee.

Metro-East, 655 F.2d at 807 (quoting 29 U.S.C. § 657(a)(2)).

The Secretary is empowered to prescribe rules and regulations which it deems necessary to carry out the responsibilities under the Act, "including rules and regulations dealing with the inspection of an employer's establishment." Metro-East, 655 F.2d at 807 (quoting 29 U.S.C. § 657(g)(2)). Pursuant to this authority, OSHA promulgated regulations which allow its compliance officers to "take or obtain photographs related to the purpose of the inspection" and "to employ other reasonable investigative techniques" in making their inspections. 29 C.F.R. § 1903.7(b).

I. PROBABLE CAUSE

Kelly-Springfield first contends that the warrant is invalid because the underlying application was insufficient to constitute probable cause. Specifically, Kelly-Springfield contends that the "additional details" in the second application for a warrant provided in response to OSHA's prompting do not establish probable cause according to the requirements for an employee complaint under 29 U.S.C. § 657(f)(1).

In order to protect an industry's Fourth Amendment right against unreasonable searches and seizures, a warrant is required whenever OSHA seeks a nonconsensual inspection of that company's premises. In re Cerro Copper Prods. Co., 752 F.2d 280, 282 (7th Cir.1985). Probable cause in the criminal sense is not required. Marshall v. Barlow, 436 U.S. 307, 320-21, 98 S.Ct. 1816, 1824-25, 56 L.Ed.2d 305 (1978). To establish probable cause, the Secretary must show: (1) specific evidence of an existing violation of the law; or (2) that neutral and reasonable legislative and administrative standards for conducting an inspection are satisfied. Marshall, 436 U.S. at 320-21, 98 S.Ct. at 1824-25; Cerro Copper, 752 F.2d at 282. The parties are in agreement that this case does not involve the second probable cause standard, only the first.

Kelly-Springfield argues that the application fails to establish probable cause because it does not identify an existing violation of any regulation because no ergonomics regulation exists. At oral argument, OSHA conceded that there were no specific regulations concerning ergonomics and argued that Kelly-Springfield violated the general duty clause of the Act, 29 U.S.C. § 654(a)(1).³

Kelly-Springfield counters that the application does not cite to the Act's general duty clause or to any other regulation. Because of OSHA's failure to identify a specific clause of the Act and the fact that there are no specific regulations regarding ergonomics, Kelly-Springfield, relying on In re Metro-East Mfg. Co., 655 F.2d 805 (7th Cir.1981), argues that it has not received "fair warning" of what is required or prohibited by the Act. This argument is unpersuasive. The application for warrant provided the following information:⁴

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

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

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

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

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

6. 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 are experiencing RMT but have not sought medical attention for fear of reprisal.

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

These alleged conditions are sufficient to lead an OSHA compliance officer to believe that there exists probable cause that an employer may be violating the general duty provision of the Act. The fact that OSHA did not explicitly state in its application that the suspected violation was of the general duty clause is not important. Under the Act, Kelly-Springfield is not entitled to any more notice than that provided in the general duty clause. If injuries exist in the numbers alleged in the application, Kelly-Springfield surely would have reason to suspect that it may not be providing its employees the safe workplace contemplated by the Act.

Kelly-Springfield next contends that In re Cerro Copper Prods. Co., 752 F.2d 280 (7th Cir.1985), sets forth criteria for analyzing whether probable cause exists and that it should be granted an evidentiary hearing. This criteria includes: (1) whether the employee complaint was motivated by a desire to harass the employer; and (2) whether the employer has experienced a comprehensive, wall-to-wall inspection within the past fiscal year. Cerro Copper, 752 F.2d at 283. Cerro Copper involved a determination that there was no probable cause to merit an inspection because the legislative and administrative standards for conducting an inspection were not neutral and reasonable as required under the second prong of the probable cause test (which the parties have indicated is inapplicable to the present case). See Cerro Copper, 752 F.2d at 282-83. Thus, the criteria cited by Kelly-Springfield do not apply. Further, Cerro Copper involved the scope of a wall-to-wall plant inspection based on an employee complaint alleging hazardous conditions in specific locations in the plant. Thus, Cerro Copper is inapplicable to the instant case.

Kelly-Springfield further contends that OSHA's act of soliciting a revised complaint negates a probable cause finding. Kelly-Springfield maintains that the Act's requirement of reasonable particularity for an employee complaint does not contemplate the extensive revision of an employee complaint at OSHA's urging. This contention is patently meritless. Evans, in her affidavit attached to the application for a warrant, states that she interviewed complainant to obtain more specific information regarding the complaint. This court declines to find anything inherently wrong in seeking a second warrant after securing more particularized details.

Kelly-Springfield next cites SEC v. Wheeling-Pittsburgh Steel Corp., 648 F.2d...