Empire Steel Mfg. Co. v. Marshall

• Decision Date: 01 September 1977
• Docket Number: No. CV-77-48-BLG.,CV-77-48-BLG.
• Citation: 437 F. Supp. 873
• Parties: EMPIRE STEEL MANUFACTURING CO., Plaintiff, v. Ray MARSHALL, Secretary of Labor of the United States of America, in his official capacity, Harry C. Hutton, Area Director for Montana of the Occupational Safety and Health Administration, an agency of the United States Department of Labor, in his official capacity, and Louis O. Aleksich, United States Marshal, in his official capacity, Defendants.
• Court: U.S. District Court — District of Montana

437 F. Supp. 873

EMPIRE STEEL MANUFACTURING CO., Plaintiff, v. Ray MARSHALL, Secretary of Labor of the United States of America, in his official capacity, Harry C. Hutton, Area Director for Montana of the Occupational Safety and Health Administration, an agency of the United States Department of Labor, in his official capacity, and Louis O. Aleksich, United States Marshal, in his official capacity, Defendants.

No. CV-77-48-BLG.

United States District Court, D. Montana, Billings Division.

September 1, 1977.

Stephen H. Foster, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Mont., for plaintiff.

Donald R. McCoy, U. S. Dept. of Labor, Denver, Colo., for defendants.

OPINION AND ORDER

BATTIN, District Judge.

The issue presented in this case involves the authority of the Secretary of Labor under the Occupational Safety and Health Act of 1970 to conduct inspections of employers engaged in interstate commerce, under § 8(a), 29 U.S.C. § 657.

The plaintiff is a Montana corporation engaged in the manufacture of steel products in Billings, Montana, and conducting business affecting interstate commerce. Empire Steel employs approximately 55 persons who are represented by the United Steelworkers of America, AFL-CIO, Local Union 3169.

On March 1, 1977, an employee of Empire Steel was injured when his arm became engaged in the rolls of a steel bending and rolling machine on the plaintiff's premises, resulting in the amputation of his arm. Subsequently, on March 3, compliance officers of the Occupational Safety and Health Administration, Department of Labor, inspected the machine that caused the injury. A citation was issued which alleged that the machine was operated in violation of the Occupational Safety and Health Act.

On March 30, Local Union 3169 filed a notice with the Area Director of the Occupational Safety and Health Administration requesting a safety and health inspection of the Empire Steel premises. The anonymous request, authorized by § 8(f)(1), 29 U.S.C. § 657(f)(1), detailed some 80 items allegedly constituting recognized hazards likely to cause death or serious physical harm. Section 5(a)(1), 29 U.S.C. § 654(a)(1). The Area Director to whom the complaint was referred concurred in the opinion that the allegations were sufficient to constitute serious violations of the Act. The Director assigned a compliance officer to initiate an inspection of the Empire Steel premises based on the complaint.

On March 31, 1977, the compliance officer, Jerry Conn, appeared at the Empire Steel establishment during regular business hours. The vice president of Empire Steel, Thomas B. Breen, Jr., was shown Conn's credentials and was furnished with a copy of the complaint upon which the inspection was initiated. Section 8(f)(1), 29 U.S.C. § 657(f)(1). Conn explained to Vice President Breen the purpose of his visit. Breen, acting upon the advice of his attorney, refused to allow the compliance officer to conduct the inspection. Conn made no further attempt to gain entry to the Empire Steel premises but returned to his office and reported to the Area Director.

On April 1, 1977, the defendants applied to the United States Magistrate for a search warrant to conduct the inspection. The warrant application was accompanied by affidavits of two employees of Empire Steel, employees who are also officials of Local 3169. Additionally, the Area Director appended an affidavit setting forth facts indicating Empire Steel was subject to the Act and stating that in his opinion there were reasonable grounds to believe that violations existed on their premises.

On April 5, 1977, the United States Magistrate issued a warrant ordering that an inspection be conducted of "the structures, machines, apparatus, devices, equipment and materials more particularly described in a complaint filed pursuant to 29 U.S.C. § 658(f)(1) sic, a copy of which is attached hereto and made a part hereof, which are being used and/or maintained in a manner which violates 29 U.S.C. § 655654(a)(1) and 29 U.S.C. § 655654(a)(2)" and further ordering that the inspection be conducted as provided by 29 U.S.C. § 657(a). Before the warrant could be served, Empire Steel, acting through counsel, applied for a temporary restraining order and moved for a permanent injunction on the grounds that the corporation was in imminent jeopardy of having constitutional rights violated. The motion for a temporary restraining order was granted by the Court at 9:11 o'clock a. m. April 6, 1977.

On April 19, 1977, the defendants moved for a separate order compelling the inspection of the plaintiff's business premises. At the same time, the defendants moved to consolidate the hearing on the motion for a permanent injunction with the trial of the action on the merits. The motion was granted by order of this Court dated April 25, 1977. The initial trial date was vacated upon the defendants' request and rescheduled for May 23, 1977. On that day, the defendants offered certain exhibits into evidence and the parties agreed that the remaining facts were uncontested and submitted the matter to the Court for decision.

The Court, having considered the issues and authorities of the respective parties, finds that warrantless administrative inspections are not constitutionally permissible under 29 U.S.C. § 657(a)(1). However, where the Secretary is able to show that probable cause exists to believe a violation of the Act has occurred, then the subject premises may constitutionally be searched under a warrant issued by a magistrate when the search instrument complies with the mandate of the Fourth Amendment.

The facts of this case are inapposite to the issue of whether warrantless searches are authorized under Section 8(a) of the Act. However, the plaintiff's ultimate position is founded on a premise that any search or inspection conducted pursuant to § 8(a), 29 U.S.C. § 657(a) of the Act, is unconstitutional. There is little question that warrantless inspections under § 8(a) of the Act violate the Fourth Amendment's proscription against searches without warrants. This conclusion is based on several Supreme Court decisions which have established the scope and limits of warrantless searches.

In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), the Supreme Court overruled the position it had earlier taken in Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959), concerning administrative searches. In Camara, the United States Supreme Court held that the Fourth Amendment bars prosecution of a person who did not permit a warrantless administrative inspection of his personal residence. In articulating its reasoning in Camara, the Supreme Court recognized the axiom mirrored by history and experience, that, except in certain carefully defined classes of cases, a warrantless search of private property without proper consent is unreasonable within the meaning of the Fourth Amendment. Camara v. Municipal Court, supra, 387 U.S. at 528, 87 S.Ct. 1727. The Camara Court found the "probable cause" standard necessary for administrative kinds of inspections may not be as strict as the standard necessary to establish probable cause in criminal cases.

"The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant." Camara v. Municipal Court, supra at 539, 87 S.Ct. at 1736.

In concluding, the Court noted that there was no emergency demanding immediate access shown by the facts in Camara. Furthermore, the inspectors had made three trips to the building in an attempt to get the appellant's consent to search, yet no search warrant was obtained prior to any of those appearances. Thus, the appellant had a constitutional right to insist that the inspectors obtain a warrant to search. Camara could not be constitutionally convicted for refusing to consent to the inspection.

In a companion case, See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) the Court extended the Camara holding to commercial property. In See, the petitioner was convicted for refusing to permit a fire inspector to inspect a locked warehouse when the inspector did not have a warrant. The occasion for the inspection arose as part of a routine procedure by the Seattle Fire Department seeking to compel compliance with the Seattle Fire Code. The Court held that:

"The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property." See v. City of Seattle, supra at 543, 87 S.Ct. at 1739.

The Court found that administrative entry without consent on portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure.

"We hold only that the basic component of a reasonable search under the Fourth Amendment — that it not be enforced without a suitable warrant procedure — is applicable in this context, as in others, to business as well as to residential premises."

Following the Camara and See cases, several Courts, including the United States Supreme Court, approved narrower dispensations from the warrant strictures that had been approved in Camara and See.

The first of the cases which ostensibly narrowed the holdings in Camara and See came in the case of Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). In Colonnade, the Court seemed to take a step back from the broad proscription against warrantless searches. It did so in approving warrantless inspections of federally licensed liquor dealers on the ground that historically the industry had been subject to strict...