Donovan v. Union Packing Co. of Omaha, No. 82-2548

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore HEANEY; HEANEY
Citation714 F.2d 838
Decision Date18 August 1983
Docket NumberNo. 82-2548
Parties11 O.S.H. Cas. (BNA) 1648, 1983 O.S.H.D. (CCH) P 26,643 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Appellee, v. UNION PACKING COMPANY OF OMAHA, Appellant.

Page 838

714 F.2d 838
11 O.S.H. Cas. (BNA) 1648, 1983 O.S.H.D. (CCH)
P 26,643
Raymond J. DONOVAN, Secretary of Labor, United States
Department of Labor, Appellee,
v.
UNION PACKING COMPANY OF OMAHA, Appellant.
No. 82-2548.
United States Court of Appeals,
Eighth Circuit.
Submitted June 16, 1983.
Decided Aug. 18, 1983.

T. Timothy Ryan, Jr., Sol. of Labor, Frank A. White, Associate Sol. for Occupational Safety and Health, Dennis K. Kade, Counsel for Appellate Lit., Tedrick A. Housh, Regional Sol., Shelley D. Hayes, Atty., U.S. Dept. of Labor, Washington, D.C., for appellee.

Martin A. Cannon, Matthews, Cannon & Riedmann, P.C., Omaha, Neb., for appellant.

Page 839

Before HEANEY, Circuit Judge, and FLOYD R. GIBSON and ROSENN, * Senior Circuit Judges.

HEANEY, Circuit Judge.

Union Packing Company appeals from a district court order enforcing an administrative subpoena duces tecum issued by the Secretary of Labor. The Secretary sought to obtain company records concerning the number of worker illnesses and injuries to determine if the company's premises would be inspected for compliance with the Occupational Safety & Health Act (OSHA). We hold that the Secretary's use of the subpoena power for this purpose is authorized by OSHA, and that the statute as thus construed is constitutional. We therefore affirm the district court's enforcement order.

Union Packing Company operates a meat packing plant in Omaha, Nebraska. Following the Secretary's procedures for "programmed inspections," an OSHA compliance officer went to the company's premises to review certain selected records to determine from those records the company's lost workday injury rate. When the company refused to permit the officer on its premises, the Secretary issued a subpoena duces tecum, which required the company to produce a number of OSHA forms relating to occupational illnesses and injuries in its workforce, 1 along with workmen's compensation reports and records on the number of employees and number of hours worked. The company failed to respond, and the Secretary sought enforcement of the subpoena in district court. The court ordered the subpoena enforced, but stayed its enforcement pending this appeal.

On appeal, the company raises two major issues concerning the validity of the district court's enforcement order: (1) whether OSHA authorizes the Secretary to use the subpoena power absent a full-scale investigation, and (2) if so, whether such use is permissible under the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).

We have little difficulty with the first issue. Section 657(c) of OSHA requires employers to "make, keep and preserve, and make available" such records as the Secretary "may prescribe by regulation as necessary or appropriate for the enforcement of [OSHA]." 29 U.S.C. § 657(c)(1). This section also requires employers to maintain accurate records of and to make periodic reports on "work-related deaths, injuries and illnesses." Id. § 657(c)(2). Consistent with the statute, the Secretary has issued regulations which detail the specific records that must be maintained. See 29 C.F.R. §§ 1904.2, 1904.4, 1904.6 (1982) (OSHA Forms 100, 101, and 200). See generally id. §§ 1904.1-1904.22.

The company argues that the Secretary may subpoena such records only during an investigation of its premises. It calls attention to the language of section 657(b) of the Act, which states: "In making his inspections and investigations under this chapter the Secretary may require the attendance and testimony of witnesses and the production of evidence under oath." 29 U.S.C. § 657(b). While the argument that this language indicates that the Secretary may only require the production of evidence during an inspection authorized by a warrant has surface appeal, it must be rejected.

The Secretary's authority to conduct "inspections and investigations under this chapter" is not limited to comprehensive inspections or investigations. See Marshall v. Olean Title Co., 489 F.Supp. 32, 34-35 & n. 2 (E.D.Pa.), aff'd mem., 636 F.2d 1209 (3d Cir.1980). See also General Motors Corp. v. Director of NIOSH, 636 F.2d 163, 165 (6th Cir.1980), cert. denied, 454 U.S. 877, 102

Page 840

S.Ct. 357, 70 L.Ed.2d 187 (1981); E.I. du Pont de Nemours & Co. v. Finklea, 442 F.Supp. 821, 824 (S.D.W.Va.1977). The statute does not mandate an inspection of the premises in order to enforce a limited subpoena to determine whether there is a probable violation of the law. See United States v. Morton Salt Co., 338 U.S. 632, 652-653, 70 S.Ct. 357, 368-369, 94 L.Ed. 401 (1950). Indeed, the Secretary should not be expected to do more than the circumstances require.

The same is true of the regulations cited by the company. These regulations discuss the use of the subpoena power during inspections, but they do not limit the Secretary's power exclusively to situations in which there is an ongoing comprehensive inspection. See 29 C.F.R. §§ 1903.3 & 1903.4 (1982).

The company also contends that case law, particularly In re Establishment Inspection of Kulp Foundry, Inc., 691 F.2d 1125, 1132 (3d Cir.1982), establishes that the Secretary's subpoena power is adjunct to his power to conduct investigations with a warrant. We find the Kulp case inapposite. In Kulp, the Third Circuit held that even if the Secretary had obtained a warrant to inspect a company's premises, a broad request for documents could not be enforced without a subpoena, because "Congress intended the safeguards of a subpoena requirement to apply to the production of documents." Id.

The Kulp Court did not decide the issue presented in this case, and specifically declined to decide "whether or not a subpoena is necessary to reach records that an employer is required to 'make available' under * * * the...

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4 practice notes
  • U.S. Dept. of Labor v. Kast Metals Corp., No. 83-4311
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 29, 1984
    ...of rulemaking proceedings when all the agency seeks to do is operate in a rational manner. Cf. Donovan v. Union Packing Co. of Omaha, 714 F.2d 838, 840 (8th Cir.1983) (holding constriction of Secretary's independent subpoena power to be inconsistent with enforcement of OSH It has been almos......
  • Reich v. Sturm, Ruger & Co., Inc., Civ. No. 94-373-M.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • August 4, 1995
    ...documents, the court finds that the Secretary's subpoena was also reasonable and constitutionally sound. In Donovan v. Union Packing Co., 714 F.2d 838 (8th Cir.1983), the Court of Appeals for the Eight Circuit reached a similar conclusion, Disclosure of forms required by the Act and of seve......
  • U.S. v. Sturm, Ruger & Co., Inc., No. 95-1918
    • United States
    • U.S. Court of Appeals — First Circuit
    • April 5, 1996
    ...Inc., 904 F.2d 867, 871 (3d Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990); Donovan v. Union Packing Co., 714 F.2d 838, 840 (8th The respondent's central thesis boils down to this: the subpoena should not be enforced because OSHA issued it pursuant to an inspection......
  • Reich v. Manganas, No. 94-3698
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 27, 1995
    ...of an inspection of the premises, to obtain records the company is required to maintain...." Donovan v. Union Packing Co. of Omaha, 714 F.2d 838, 840 (8th Cir.1983) (emphasis added). In fact, to conclude otherwise would be tantamount to granting OSHA-violators a freedom to ignore healt......
4 cases
  • U.S. Dept. of Labor v. Kast Metals Corp., No. 83-4311
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 29, 1984
    ...of rulemaking proceedings when all the agency seeks to do is operate in a rational manner. Cf. Donovan v. Union Packing Co. of Omaha, 714 F.2d 838, 840 (8th Cir.1983) (holding constriction of Secretary's independent subpoena power to be inconsistent with enforcement of OSH It has been almos......
  • Reich v. Sturm, Ruger & Co., Inc., Civ. No. 94-373-M.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • August 4, 1995
    ...documents, the court finds that the Secretary's subpoena was also reasonable and constitutionally sound. In Donovan v. Union Packing Co., 714 F.2d 838 (8th Cir.1983), the Court of Appeals for the Eight Circuit reached a similar conclusion, Disclosure of forms required by the Act and of seve......
  • U.S. v. Sturm, Ruger & Co., Inc., No. 95-1918
    • United States
    • U.S. Court of Appeals — First Circuit
    • April 5, 1996
    ...Inc., 904 F.2d 867, 871 (3d Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990); Donovan v. Union Packing Co., 714 F.2d 838, 840 (8th The respondent's central thesis boils down to this: the subpoena should not be enforced because OSHA issued it pursuant to an inspection......
  • Reich v. Manganas, No. 94-3698
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 27, 1995
    ...of an inspection of the premises, to obtain records the company is required to maintain...." Donovan v. Union Packing Co. of Omaha, 714 F.2d 838, 840 (8th Cir.1983) (emphasis added). In fact, to conclude otherwise would be tantamount to granting OSHA-violators a freedom to ignore healt......

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