Donovan v. Enterprise Foundry, Inc.

• Decision Date: 01 March 1984
• Docket Number: Misc. No. 83-124 P.
• Citation: 581 F. Supp. 1433
• Parties: Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. ENTERPRISE FOUNDRY, INC. and John Legendre, Defendants.
• Court: U.S. District Court — District of Maine

581 F. Supp. 1433

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. ENTERPRISE FOUNDRY, INC. and John Legendre, Defendants.

Misc. No. 83-124 P.

United States District Court, D. Maine.

March 1, 1984.

Albert H. Ross, Regional Sol., Merle D. Hyman, U.S. Dept. of Labor, Office of the Sol., Boston, Mass., for plaintiff.

Jack Simmons, Steven Silin, Berman, Simmons & Goldber, P.A., Lewiston, Maine, for defendants.

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S PETITION FOR ADJUDICATION OF CIVIL CONTEMPT

GENE CARTER, District Judge.

I. Introduction

Section 8(a) of the Occupational Safety and Health Act of 1970 (OSHA or Act) empowers agents of the Secretary of Labor (Secretary) to search the work area of any employment facility within the Act's jurisdiction. 29 U.S.C. § 657. The purpose of the search is to inspect for safety hazards and violations of OSHA regulations. No search warrant or other process is expressly required under the Act. The United States Supreme Court has, however, addressed the question of whether a search warrant is required in order to implement the inspection provisions of the Act over the objection of the employer. The Court held in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) that the public policies sought to be implemented by the inspection provisions of the Act and the difficulties of enforcement encountered by the Secretary "do not suffice to justify warrantless inspections under OSHA or vitiate the general constitutional requirement that for a search to be reasonable a warrant must be obtained." Id. at 324, 98 S.Ct. at 1826.

It is significant that the Court in mandating the requirement of a warrant in order to accomplish inspection over the objections of an employer pursuant to the Act placed special emphasis upon "the incremental protections" thought to be associated with the issuance of a warrant by a detached decision-maker not involved directly in the administratively-based effort to conduct the inspection. Barlow's, 436 U.S. at 322, 98 S.Ct. at 1825.

II. Historical Facts

The record before this Court consists of the record made before the United States Magistrate on the application for the issuance of the administrative search warrant here in question and the affidavits of James R. Mitchell,¹ the Plaintiff's Compliance Safety and Health Officer, John Legendre, the President of the corporate Defendant, and Jack Simmons and Steven Silin, counsel for the Defendants. On the basis of this record the Court finds the following to be the facts pertinent to the resolution of the controversy presented by the Plaintiff's Order to Show Cause and Petition for Adjudication of Civil Contempt filed with the Court on December 2, 1983.

The Defendant, Enterprise Foundry, Inc., is a private corporate enterprise which employs approximately 51 persons and is engaged in the manufacture of molded castiron products at a work site maintained at South Street, Lewiston, Maine. The Defendant, John Legendre, is the corporate president of Enterprise Foundry, Inc. Raymond A. Legendre is the Vice-President of the corporation and Bertrand Desrochers is its Office Manager.

James R. Mitchell is a duly authorized Compliance Officer of the United States Department of Labor, Occupational Safety and Health Administration. As a result of the activities of Mr. Mitchell, and of other OSHA officials, corporate Defendant's workplace at South Street in Lewiston, Maine was chosen to be inspected in accordance with OSHA's Scheduling System for Programmed Inspections as described in OSHA's Field Operations Manual Instructions for Inspection Scheduling, as that is modified by a tract entitled "Alternative Method for Targeting Health Inspections." The selection of the work site for inspection was in accordance with OSHA's overall policy that inspections conducted as programmed inspections be in the "high hazard" sectors of employment. Enterprise Foundry, Inc. was determined by OSHA authorities to be an employer in a high hazard industry.

Mr. Mitchell appeared at the premises of the corporate Defendant on October 13, 1983, at approximately 2:20 P.M. for the purpose of inspecting the work site and investigating the working conditions in order to determine if there was compliance with OSHA-established standards. He presented his credentials to the President, Mr. Legendre, and informed the President and Mr. Desrochers, the Office Manager, of the purposes of his inspection, the scope of the inspection and the method used to select the corporate Defendant for the inspection. The corporate officers then present allowed him to conduct an opening conference and to inspect the corporate Defendant's OSHA 200 Log. It was mutually decided that it was too late in the day to begin the walk-around inspection since the workday at the work site ended at 3:30 P.M. Mr. Mitchell agreed to do the walk-around inspection the next day.

He returned to the establishment the following day, October 14, 1983, at approximately 10:10 A.M. On arriving in the office area he was informed by President Legendre that he, Mr. Mitchell, would not be permitted to conduct the inspection of the work site "without a warrant to do so." He informed Mitchell that this action was in accordance with established corporate policy since 1980 and provided Mr. Mitchell with a copy of that policy. Mr. Mitchell then left the establishment, indicating to President Legendre that he would return with a warrant.

Thereafter, on November 8, 1983, Mr. Mitchell filed with the United States Magistrate, the Honorable D. Brock Hornby, an "Application for Inspection Warrant Under the Occupational Safety and Health Act." The application was made by Mr. Mitchell under oath and recounted the substance of the immediately previous factfindings. In addition, he stated that by making the application he sought to gain entry of himself and other authorized United States Department of Labor, Occupational Safety and Health Compliance Officers to the Defendant's work site for the purpose of conducting an inspection pursuant to 29 U.S.C. § 657.

The Application states that the inspection is to be conducted "within regular working hours," that it is to begin "as soon as practicable after the issuance of this Warrant," and that the inspection "will be completed with reasonable promptness." Application to the United States Magistrate, ¶ 5. The Application further states, "I do not believe that access to the premises at this time will cause any hardship to the employer or unduly interfere with the conduct of the business of any of the affected employees." Id. at ¶ 6. The Application concludes with a representation that a return will be made to the Magistrate at the completion of the inspection and with the citation of authorities for the issuance of the warrant. The Application makes no reference whatever to the utilization of any individual sampling devices.

Attached to the Application made to the Magistrate was a partial copy of OSHA's Field Operations Manual Instructions for Inspection Scheduling entitled "Chapter II — Compliance Programming." The attached extract bears page numbers II-1 through II-3, IX-1 through IX-3, and IX-7 through IX-10. This document bears identification markings as "Appendix A1" and is specifically referred to in the Application. Also attached and identified as "Appendix A2" is a modification of Appendix A1 entitled "Alternative Method for Targeting Health Inspections," which is also referred to specifically in the Application both by title and by identification number. Appendix A2 bears as a frontis page a memorandum for area directors from Donald E. MacKenzie on the subject of "Alternative Method for Targeting Health Inspections" and appears to be the memorandum by which transmittal of the ensuing pages of Appendix A2 were conveyed to OSHA's area directors.

Also attached to the Application, as submitted to the United States Magistrate, is a document entitled "Plant Inspections by Governmental Agencies." This document is the statement of "established corporate policy since 1980" given by President Legendre to Mr. Mitchell on October 14, 1983, as a basis for the refusal to permit the inspection of the work site without issuance of a warrant and referred to as "Exhibit B" in the Application. Application at ¶ 3. Also before the Magistrate at the time he acted on the Application was the warrant proposed by OSHA for issuance, to which was attached a portion of pages 32 and 33 of a prior edition of the Code of Federal Regulations reflecting a prior form of Regulation § 1903.7. The language of subsection (b) of this regulation reads as follows:

Compliance Safety and Health Officers shall have authority to take environmental samples and take or obtain photographs related to the purpose of the inspection, employ other reasonable investigative techniques, and question privately any employer, owner, operator, agent or employee of an establishment. (See § 1903.9 on trade secrets.)

INTERPRETATIVE NOTE: As used herein, the term "employ other reasonable investigative techniques" includes, but is not limited to, the use of devices to measure employee exposures and the attachment of personal sampling equipment such as dosimeters, pumps, badges and other similar devices to employees in order to measure their exposures.

The foregoing reference is the only reference to utilization of individual sampling devices contained in the materials before the Magistrate at the time he acted on the Application.²

On November 8, 1983, the United States Magistrate issued the warrant requested by Mr. Mitchell. On November 9, 1983, Mr. Mitchell returned to the corporate Defendant's premises and presented the warrant with the attached version of Regulation § 1903.7 containing the "INTERPRETATIVE NOTE" to President Legendre and Mr. Desrochers. There was not at that time attached to the warrant, as there was to the application,...