McLaughlin v. A.B. Chance Co.

• Decision Date: 23 March 1988
• Docket Number: No. 87-3829,87-3829
• Citation: 842 F.2d 724
• Parties: , 13 O.S.H. Cas.(BNA) 1620, 1988 O.S.H.D. (CCH) P 28,166 Ann E. McLAUGHLIN, Secretary of Labor, Petitioner, v. A.B. CHANCE COMPANY; Occupational Safety & Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 724

842 F.2d 724

56 USLW 2547, 13 O.S.H. Cas.(BNA) 1620,

1988 O.S.H.D. (CCH) P 28,166

Ann E. McLAUGHLIN, Secretary of Labor, Petitioner, v. A.B. CHANCE COMPANY; Occupational Safety & Health Review

Commission, Respondents.

No. 87-3829.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 3, 1987.

Decided March 23, 1988.

Steven J. Mandel, for appellate Litigation (George R. Salem, Sol. of Labor, Allen H. Feldman, Associate Sol., for Sp. Appellate and Supreme Court Litigation.

Ellen L. Beard, Atty., U.S. Dept. of Labor, Washington, D.C., on brief), for petitioner.

William Thomas Weidle, Jr. (Frank L. Pellegrini, A Professional Corp., St. Louis, Mo., on brief), for respondents.

Before PHILLIPS, CHAPMAN and WILKINSON, Circuit Judges.

CHAPMAN, Circuit Judge:

This is a petition for review of a decision and order of the Occupational Safety and Health Review Commission (Commission) holding that a regulation, 29 C.F.R. Sec. 1904.7(a), promulgated by the Secretary of Labor (Secretary) under the authority of the Occupational Safety and Health Act (Act), 29 U.S.C. Sec. 651, et seq., violates the Fourth Amendment to the extent that it purports to authorize an inspection of required records without a warrant or a subpoena. The dispute arose during a visit by an Occupational Safety and Health Administration (OSHA) compliance officer to a plant operated by A.B. Chance Company in Parkersburg, West Virginia, in response to an employee health and safety complaint. While at the plant the compliance officer asked for production of OSHA forms No. 101 and 200. Form 200 is a log and summary of all recordable occupational injuries or illnesses, and Form 101 is a supplemental record of such injuries and illnesses. The compliance officer also requested permission to see certain machinery that had been cited in the complaint. Chance's designated representative permitted the compliance officer to examine the machinery but refused to produce forms No. 101 and 200.

A week later, the compliance officer contacted Chance officials at the Parkersburg plant in an effort to examine forms No. 101 and 200, but he was advised that these forms would not be produced without a search warrant. On May 3, 1984, the compliance officer notified Chance of its violation of the Act, and regulations promulgated thereunder, particularly 29 C.F.R. Sec. 1904.7(a), which provides that an employer shall provide, upon request, the records provided for in Secs. 1904.2, 1904.4, and 1904.5 for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provisions of the Act, and by representatives of the Secretary of Health, Education, and Welfare during any investigation under Sec. 20(b) of the Act, 29 U.S.C. Sec. 669(b), or by any representative of a state accorded jurisdiction for occupational safety and health inspections or for statistical compilation under Secs. 18 or 21 of the Act, 29 U.S.C. Secs. 667, 670.

At no time did OSHA or its representative seek or obtain an inspection warrant or an administrative subpoena for the forms No. 101 and 200. The Secretary sought enforcement of its citation before the Occupational Safety and Health Review Commission. In January 1985 an administrative law judge (ALJ) found that Chance had no reasonable expectation of privacy in the OSHA forms No. 101 and 200, because these forms were maintained in accordance with OSHA regulations and were not general business records. He also ruled that as regulatorily required records, the forms were part of a group of items sufficiently limited in scope so that the production and examination of the forms would be considered a "reasonable" search for Fourth Amendment purposes.

In March 1987, upon discretionary review, the Commission reversed the ALJ and found that under the Fourth Amendment production of OSHA forms No. 101 and 200 may not be required without a warrant or a subpoena. The Commission relied upon its decision in Secretary of Labor v. King's Island, Division of Taft Broadcasting Co., No. 82-1016 (OSHRC Mar. 18, 1987), in which it held that the warrantless inspection scheme provided in 29 C.F.R. Sec. 1904.7(a) was not "a constitutionally adequate substitute for a warrant." It found the regulation invalid as applied to the present case, and the Secretary seeks review.

I

OSHA form No. 200 is required by 29 C.F.R. Sec. 1904.2(a), which provides:

(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the Form and instructions on form OSHA No. 200.

OSHA form No. 101 is required by 29 C.F.R. Sec. 1904.4, which provides:

In addition to the log of occupational injuries and illnesses provided for under Sec. 1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for that establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101. Workmen's compensation, insurance, or other reports are acceptable alternative records, if they contain the information required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

An employer is required to post an annual summary of all occupational injuries and illnesses for each establishment. 29 C.F.R. Sec. 1904.5 provides that this summary "shall consist of a copy of the year's totals from the form OSHA No. 200 and the following information from that form: Calendar year covered, company [n]ame[,] establishment name, establishment address, certification signature, title, and date." The summary shall be completed by February 1 of each year.

The Secretary's regulations, 29 C.F.R. Secs. 1904.2, 1904.4 and 1904.5, which require the keeping of logs and records of occupational injuries and illnesses, and Sec. 1904.7, which provides the Secretary with access to these records, are in keeping with the congressional declaration of purpose and policy set forth in 29 U.S.C. Sec. 651 and particularly Sec. 651(b)(12) "by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this chapter and accurately describe the nature of the occupational safety and health problem."

In the present action there is no question as to the authority of the OSHA compliance officer to be at the Parkersburg facility of A.B. Chance to investigate an employee safety complaint. The issue presented is whether such an OSHA compliance officer, who is lawfully upon the employer's premises to investigate an employee safety complaint, may examine and copy OSHA forms No. 101 and 200 without an inspection warrant or an administrative subpoena, when OSHA regulations require the maintaining of such forms and the production thereof for inspection and copying by a representative of the Secretary of Labor for the purpose of carrying out the provisions of the Act. We hold that Chance had no reasonable expectation of privacy in OSHA forms No. 101 and 200 and the information contained therein, and that requiring the production of these records to an OSHA compliance officer, who was on the premises investigating an employee's safety complaint, was not an unreasonable search in violation of the Fourth Amendment.

II

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

In Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985) the court stated, "A search occurs when 'an expectation of privacy that society is prepared to consider reasonable is infringed.' " The inquiry becomes whether Chance had a reasonable expectation of privacy in the OSHA forms No. 101 and 200 so as to require a search warrant or an administrative subpoena before allowing the forms to be inspected and/or copied by an OSHA compliance officer. The Supreme Court has recognized that there may be a legitimate expectation of privacy in business premises, See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), and that as a general rule, procurement of some type of warrant is required before an administrative search of business premises. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).

However, there is a limit to privacy expectations such as the one asserted here. See California Bankers Ass'n v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (holding that regulations for the reporting of financial transactions by financial institutions under the Bank Secrecy Act of 1970 abridge no Fourth Amendment rights of such institutions); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (upholding the validity of a warrantless search of firearms or ammunition dealer); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774 25 L.Ed.2d 60 (1970) (granting agents of Alcohol and...