Donovan v. Union Packing Co. of Omaha

• Decision Date: 18 August 1983
• Docket Number: No. 82-2548,82-2548
• Citation: 714 F.2d 838
• Parties: 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.
• Court: U.S. Court of Appeals — Eighth Circuit

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.

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 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 Act." Id. at n. 18. It noted that the validity of an administrative subpoena in all contexts is judged by examining three factors: (1) whether the inquiry is within the authority of the agency; (2) whether the demand is sufficiently definite; and (3) whether the information sought appears to be reasonably relevant to the authorized inquiry. Id. All three factors are satisfied here.

A case closer to the present one is Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 8 (1st Cir.1983). In Wollaston Alloys, the First Circuit held that the Secretary may review forms required under OSHA section 657(c) through either a subpoena or a warrant. The Donovan Court noted the specific language of section 657(c), which requires employers to "make, keep, and * * * make available" records which the Secretary prescribes, and stated that it was "reasonable to assume that an employer would have less of a privacy interest in a document it is required by statute or regulation to maintain than in a document it produces and maintains on its own." Id. (Citation omitted).

We thus agree with the Secretary that the statute authorizes the use of the subpoena power, independent of an inspection of the premises, to obtain records the company is required to maintain under section 657(c) as well as other standard records which are necessary to compute the lost workday injury rate. Moreover, we believe that the company's position to the contrary is inconsistent with the purposes of the statute to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651(b). Adoption of the position advanced by the company would severely limit the Secretary's power to enforce the Act. In every instance, the Secretary would be required to find specific evidence of an existing violation before conducting even a limited review of the records a company is obligated to keep and make available under the statute. We cannot agree that the language of the statute compels this result.

The more difficult issue is whether the Secretary's exercise of the subpoena power conferred by the statute as construed 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). The company argues that even if the statute allows a subpoena to be used to inspect or review documents in circumstances where a warrant for a general investigation has not been obtained, the Constitution limits the statute in this manner. We disagree.

In Marshall v. Barlow's, Inc., supra, the Supreme Court held that the Secretary must obtain a warrant in order to inspect a workplace under section 657(a) of OSHA, which authorizes the Secretary to "inspect and investigate" places of employment to ensure compliance with the statute. 29 U.S.C. § 657(a). The Court indicated that such a warrant may be obtained either by presenting specific evidence of an existing violation of the Act at the workplace in question, or by showing that the workplace was selected in accordance with a general plan having neutral criteria. Id. at 320-321, 98 S.Ct. at 1824.

The Court was concerned that a warrant was necessary to protect against the use of "unbridled discretion" concerning "when to search and whom to search." Id. at 323, 98 S.Ct. at 1825. The Court noted that "[d]elineating the scope of a search with some care is particularly important where documents are involved," id. at 324 n. 22, 98 S.Ct. at 1826 n. 22, rejecting the Secretary's position that "records required by the Act and * * * other records which are directly related to the purpose of the inspection," and any "additional records" as an OSHA inspector requests may be inspected without a warrant. Id.

The Secretary's use of the subpoena power was not at issue in Barlow's, but...