Walsh v. R&L Carriers Shared Servs.
| Decision Date | 12 May 2022 |
| Docket Number | 21-mc-67-SM |
| Court | U.S. District Court — District of New Hampshire |
| Parties | Martin J. Walsh, Secretary, U.S. Department of Labor v. R&L Carriers Shared Services, LLC |
REPORT AND RECOMMENDATION
The Secretary of Labor initiated this action pursuant to 2 9 U.S.C. § 657(b) to enforce a subpoena for documents issued by the Occupational Safety and Health Administration ("OSHA") to R&L Carriers Shared Services, LLC ("R&L"). The subpoena seeks documents pertaining to certain issues at R&L's facility in Manchester, New Hampshire, that were raised in a complaint sent to OSHA.
R&L opposes the petition to enforce the subpoena on the grounds that the subpoena is moot and, if not moot, the subpoena cannot be enforced because it is not reasonable and enforcement would violate the Fourth Amendment. A hearing was held on January 12, 2022, and the parties provided additional briefing thereafter. The Secretary requests attorneys' fees, and R&L opposes that request.
Background[1]
R&L operates a freight shipping facility in Manchester, New Hampshire. On June 9, 2021, the OSHA office in Concord, New Hampshire, received a complaint report about issues at R&L's facility in Manchester, as follows:
Roof leaks into the facility onto the smooth concrete floor creating slip hazards for foot traffic and fork lifts. Fork lifts are not maintained. Issues noted during inspections are not repaired, and equipment remains in use. Overhead doors at loading docks are broken, and cannot be safely secured for loading operations. Dock plates are not properly secured to the building and are falling off. [sic] multiple have come off of the building and have caused injuries. Overhead hazard where junction box is damaged and a sheet of steel is hanging overhead.
Doc. 1-2. In response to the complaint report, the Concord OSHA office opened an investigation into the allegations about R&L's facility. Bill Todd, a Safety and Health Compliance Officer in OSHA's Concord office, was assigned to the R&L investigation.
Todd went to the R&L facility on June 17, 2021, for an invited on-site inspection. While he was there, he met with R&L's service manager, Richard Fisher; R&L's associate general counsel, Dan Brake; R&L's employee health and safety compliance manager, Toni Scott; and R&L's director of safety, Steve Maupin. Todd reviewed inspection logs for some of the forklifts at the facility and found that that at least in one instance maintenance issues had not been repaired after they were reported.
The service manager, Fisher, accompanied Todd on his tour of part of the facility. Because it was not raining, Todd did not have an opportunity to observe whether the roof leaked, and Fisher refused to answer questions about that issue. The employee health and safety compliance manager, Scott, gave Todd OSHA 300 and 300A logs of work-related injuries and illnesses for 2018-2021, which Todd had asked to see.
Todd asked Scott for additional information on June 22, 2021. Later in the day, Todd inspected the loading dock area at R&L. He also took photographs at that time. Attorney Michael Clarkson, instead of Scott, responded to Todd's June 22 request for information that had been sent to Scott. Clarkson stated that Todd would have to show probable cause for the information requested.
On June 30, 2021, Todd was informed that R&L was represented by Clarkson. Thereafter, Todd directed his investigatory requests to Clarkson.
Todd sought to arrange interviews with non-supervisory employees at the facility about the complaint sent to OSHA. Clarkson said that R&L could not consent to the interviews without more information. After further communications between Clarkson and Todd, Clarkson stated that R&L did not consent to the interviews and that Todd would not be permitted to interview employees.
Todd then asked for maintenance records and inspection logs for specific forklifts during a specified period. He also sought contact information for employees who operated the forklifts. Communications continued between Todd and Clarkson about production of additional information from R&L and employee contact information. R&L provided a "sampling" of forklift maintenance records.
Clarkson contacted the Department of Labor's Office of the Solicitor about OSHA's investigation of R&L. Emily Wilkinson, a trial attorney in the Boston Regional Solicitor's Office of the Department of Labor, was the contact for the OSHA investigation of R&L. Clarkson and Wilkinson held a telephone conference on July 29, 2021, about the document requests. In response to the conference and Wilkinson's follow-up email, Clarkson produced more forklift inspection records but not all of the information Wilkinson was seeking.
The Area Director of the Concord OSHA office issued a subpoena for documents on August 24, 2021. The subpoena was issued to "Custodian of Records" at R&L.[2] The Custodian was directed to appear before the Area Director at the Concord OSHA office on August 31, 2021, at 12:00 p.m. and to bring and produce books, papers, and documents with the following information:
In response to the subpoena, R&L, through Clarkson, provided documents it had produced previously. R&L objected generally to the subpoena as "beyond the scope of OSHA's authority and not reasonably related to any authority OSHA may have with respect to its investigation of [the complaint against R&L]." Doc. 1-4, at 2. With respect to the request for information identifying employees, R&L stated that OSHA's request violated the employees' right to privacy. The letter included specific responses to the four categories of information requested in the subpoena and provided a "sampling" of maintenance records and inspection logs for the forklifts identified in the subpoena in Requests (1) and (2), refused to provide identifying information for Request (3), and did provide the Federal ID number for item (4).
OSHA, through Wilkinson, sent a letter to Clarkson about the subpoenaed records that had not been provided. Wilkinson stated that if all requested records were not provided by September 14, 2021, the Secretary would likely begin an enforcement action in this court. No response to that letter was received. The Secretary filed the petition to enforce the subpoena on October 4, 2021. R&L filed an answer. The Secretary filed a reply in which he limited Request 3 to the twenty-three forklift operators who previously had been identified by R&L.[7]
Todd held a "closing conference" with representatives from R&L, including Clarkson. He discussed his findings to date from his investigation and notified R&L's representatives that R&L would likely receive a citation for one of the forklifts that had brake issues. In his affidavit, Todd states that he told the representatives and Clarkson that he would submit his findings to his supervisors who would decide whether to issue a citation.
OSHA issued a "Citation and Notification of Penalty" to R&L on December 8, 2021. Doc. 13-1. The violation cited was: "On or about 6/7/2021, [R&L] did not ensure that a fork lift with defective brakes was removed from service before repairs could be made." Id., at 8. The penalty assessed was $9,753.00. R&L filed a notice of contest with OSHA.
On January 10, 2022, R&L filed a supplemental memorandum in opposition to the Secretary's petition to enforce the subpoena in this case. In the memorandum, R&L states that Todd told R&L representatives and Clarkson during the closing conference that the investigation of R&L had concluded. R&L argued that the subpoena was moot in light of the closed investigation, the citation, and the statute of limitations for issuing any other citations. In response, the Secretary disputed the mootness theories and provided Todd's affidavit in which he denied saying that the investigation had concluded.
The court held a hearing on January 12, 2022, at which the Secretary was represented by Emily Wilkinson and R&L was represented by Michael Clarkson. At the outset, R&L agreed that OSHA had made a prima facie case for enforcement of the subpoena by satisfying the four elements set out in United States v. Sturm, Ruger & Co., 84 F.3d 1, 4 (1st Cir. 1996). OSHA confirmed that Request 3 was limited to the twenty-three forklift operators that R&L had previously identified. The parties submitted additional briefing on the mootness issues after the hearing.
The Secretary petitions to enforce the subpoena under § 657(b), which grants jurisdiction to the district courts to order a person to produce evidence for purposes of the Secretary's investigation. As is noted above, R&L objects to enforcement on the grounds that the subpoena is moot and...
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