Donovan v. Sarasota Concrete Co.

Citation693 F.2d 1061
Decision Date16 December 1982
Docket NumberNo. 81-5621,81-5621
Parties, 11 O.S.H. Cas.(BNA) 1001, 1983 O.S.H.D. (CCH) P 26,352 Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. SARASOTA CONCRETE COMPANY and Occupational Safety and Health Review Commission, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Charles I. Hadden, Asst. Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, D.C., Edward G. Hoban, Earl R. Ohman, Jr., Sect. OSHRC, Washington, D.C., for petitioner.

Fisher & Phillips, Michael C. Towers, Atlanta, Ga., James E. Holmes, Tampa, Fla., for Sarasota Concrete Co.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before HILL and CLARK, Circuit Judges, and SCOTT *, District Judge.

JAMES C. HILL, Circuit Judge:

The Secretary of Labor brings this petition to review an order of the Occupational Safety and Health Review Commission ("OSHRC" or "Commission") vacating a citation issued against Sarasota Concrete Company. The Commission ruled that the evidence supporting the citation was obtained as a result of an unconstitutional search of the company's workplace. In granting Sarasota's suppression motion, the Commission concluded that a magistrate's warrant, authorizing a full scope inspection of the company on the basis of a very specific employee complaint, was not supported by sufficient probable cause. 1 Lacking evidentiary support, the citation necessarily was vacated.

To evaluate the Commission's order properly, we must address four questions relating to the parameters of an employer's rights under the fourth amendment.

1. Whether OSHRC may evaluate the probable cause determination of a federal magistrate when determining whether to admit evidence in an administrative hearing.

2. Whether a specific employee complaint is insufficient probable cause to support a full scope inspection of a commercial workplace.

3. Whether OSHRC may apply an exclusionary rule.

4. Whether OSHRC may refuse to apply a good faith exception to its exclusionary rule.

For the reasons set forth below, we answer each of the questions in the affirmative and uphold the Commission's order.


On March 8, 1978, Samual Storey was discharged from his position with Sarasota Concrete Co. ("Sarasota"). Six days later he filed a complaint with OSHA's Tampa area office. Storey alleged that the company's cement-mixer transit trucks were maintained improperly and suffered defects such as worn tires, faulty springs and lights, and erratic brakes and steering. When filing his complaint, Storey failed to indicate that he no longer was employed by the company.

Responding to the complaint, an OSHA compliance officer went to Sarasota's work area and requested permission to conduct an administrative inspection. He was informed, however, that the company maintained a policy against warrantless inspections and was denied admission.

More than six months later, on October 6, 1978, OSHA applied to a federal magistrate for an administrative inspection warrant authorizing an investigation of Sarasota's entire workplace. OSHA made its request solely on the basis of Storey's complaint. The complaint was attached to the application, and the application alleged that OSHA had reasonable grounds to believe the alleged violations existed. After determining that administrative probable cause had been shown, the magistrate granted the warrant as requested. 2 Four days later an OSHA compliance officer served Sarasota's plant manager with a copy of the warrant and conducted a full scope investigation. As a result of the investigation, OSHA cited Sarasota for twelve "non-serious" violations of standard regulations or sections of the Occupational Health and Safety Act. None of the violations, however, related to Sarasota's cement-mixer trucks.

Although no penalty attached to any of the alleged violations, Sarasota contested each charge, and the matter was set for a hearing before an Administrative Law Judge (ALJ). At the onset of the hearing, Sarasota filed a motion to suppress all evidence gathered during the investigation which was beyond the scope of Storey's complaint. 3 In essence, Sarasota maintained that Storey's complaint about the cement-mixer trucks was not sufficient probable cause to support a search of the company's entire workplace. The ALJ agreed, granted the motion to suppress, and accordingly vacated the citation. 4

Upon a petition for discretionary review by the Secretary of Labor, the Occupational Safety and Health Review Commission affirmed the decision of the ALJ. Relying on Chromalloy American Corp., 7 OSHRC (BNA) 1547 (No. 77-2788, 1979), and Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir.1979), the Commission concluded that it was competent to determine the constitutionality of an OSHA inspection by looking to the evidence presented to the magistrate when the warrant was sought. It ruled further that if the evidence failed to support a finding of administrative probable cause, then the evidence would not be admitted in the administrative hearing. Although the Commission applied an exclusionary rule, it refused to adopt a good faith exception to the rule. Instead, the Commission held that when an employee complaint forms the basis of an administrative inspection, "an inspection beyond the scope of the alleged violation is not permissible where the Secretary can determine the precise location of the alleged violation." Because Storey's complaint was restricted to a discrete area of Sarasota's facility, the Secretary's inspection of the entire workplace violated the fourth amendment. 5 Accordingly, the evidence pursuant to the unconstitutional search was suppressed by the Commission. From this decision, the Secretary filed a timely notice of appeal.


The threshold issue is whether the Commission is competent to evaluate the sufficiency of the evidence supporting the magistrate's determination of probable cause. According to the Secretary, such review by OSHRC violates the concept of separation of powers by allowing an executive agency to review a judicial determination. The Commission, however, maintains that by reviewing the grounds for probable cause, it does not seek to overturn the magistrate's issuance of the warrant; rather, it merely seeks to determine whether the evidence is admissible for the purpose of the administration hearing. This issue is one of first impression in this circuit, and one that the court expressly refused to reach in Baldwin Metals Co. v. Donovan, 642 F.2d 768, 773-74 n. 11 (5th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981). 6 Yet we do not write on a clean slate. We are guided not only by the general principles articulated in Baldwin and the decisions of other circuits, but also by the principles and policies that underlie the constitutional requirement of a warrant for administrative searches.

Baldwin held that an employer must exhaust its administrative remedies before asking a court to declare an administrative warrant unconstitutional. To reach this conclusion the court reasoned,

An OSHRC decision favorable to Baldwin or Mosher would moot constitutional issues and make judicial intervention unnecessary. In addition, requiring exhaustion of remedies serves to protect the autonomy of OSHRC proceedings. Moreover, since judicial review of the allegedly unconstitutional warrants is provided in the appellate review of OSHRC decisions by a federal circuit court of appeals, no irreparable injury is suffered. Based upon the above analysis and upon the Third Circuit's thoughtful opinion in Babcock & Wilcox, supra, we hold that judicial review of the administrative warrants in these cases should be postponed until Baldwin and Mosher have exhausted their administrative remedies.

642 F.2d at 775. 7 The Secretary argues that in requiring administrative exhaustion, the court anticipated that OSHRC would defer constitutional considerations and decide only the merits of the claim. Had the court premised its exhaustion requirement solely on the ability of OSHRC to moot constitutional issues, the Secretary's point may have been well taken. However, the two additional considerations enunciated to support the exhaustion requirement offer equally persuasive support for allowing OSHRC to review a magistrate's determination of probable cause: the preservation of administrative autonomy and the assurance of judicial review by a federal appellate court. In addition, the court's favorable reference to Babcock & Wilcox v. Marshall, 610 F.2d 1128 (3d Cir.1979), which favored OSHRC review of probable cause determinations, lends further support for Sarasota's position that the Court anticipated judicial review would come from the federal courts of appeals.

The Commission's review of a magistrate's determination of probable cause is akin to the formulation of a rule of evidence. Clearly "[t]he Commission is authorized to make such rules as are necessary for the orderly transaction of its proceedings." 29 U.S.C. Sec. 661(f). In the interest of maintaining their autonomy, administrative agencies are not restricted to rigid rules of evidence. FTC v. Cement Institute, 333 U.S. 683, 705-06, 68 S.Ct. 793, 805-806, 92 L.Ed. 1010 (1948). An administrative body even may exclude evidence otherwise admissible under federal rules. See Carpenter Sprinkler Corp. v. NLRB, 605 F.2d 60, 66 (2d Cir.1979). We therefore see no reason why OSHRC should be restricted from reviewing the magistrate's determination of probable cause to evaluate whether the evidence meets the standards of admissibility for an OSHRC proceeding. Indeed, to prohibit such review would be to allow the magistrate to control admissibility determinations in contravention of administrative autonomy.

On the other hand, review by OSHRC does not directly affect the substance of the magistrate's determination. As explained...

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