Marshall v. North Am. Car Co.

• Decision Date: 30 October 1979
• Docket Number: Civ. No. 79-719.
• Citation: 476 F. Supp. 698
• Parties: Ray MARSHALL, Secretary of Labor, U.S. Department of Labor, Plaintiff, v. NORTH AMERICAN CAR COMPANY, Defendant. In the Matter of Establishment Inspection of North American Car Company, N. Thomas Avenue, Sayre, Pennsylvania.
• Court: U.S. District Court — Middle District of Pennsylvania

476 F. Supp. 698

Ray MARSHALL, Secretary of Labor, U.S. Department of Labor, Plaintiff, v. NORTH AMERICAN CAR COMPANY, Defendant In the Matter of Establishment Inspection of North American Car Company, N. Thomas Avenue, Sayre, Pennsylvania.

Civ. No. 79-719.

United States District Court, M. D. Pennsylvania.

July 25, 1979.

As Amended October 30, 1979.

COPYRIGHT MATERIAL OMITTED

Marshall H. Harris, Regional Sol., U.S. Dept. of Labor, Philadelphia, Pa., for plaintiff.

Mark Lies, Chicago, Ill., John M. Humphrey, Williamsport, Pa., for defendant.

OPINION

MUIR, District Judge.

I. Introduction.

The above action was instituted under Miscellaneous No. 79-81 by the filing of an application for an inspection warrant pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., by Leo Carey, the area director of the Wilkes-Barre Office of the Occupational Safety and Health Administration (OSHA), on May 17, 1979. That application sought a warrant for the inspection of a railroad car repair facility owned and operated by North American Car Company in Sayre, Pennsylvania. On the same day, a United States Magistrate to whom the application for inspection warrant was made issued such a warrant permitting an inspection of the North American Car facility and directing that a return be made within 30 days showing that the inspection had been completed. An inspection was commenced at the Sayre plant by OSHA Health and Safety Compliance Officers but prior to the completion by the inspectors of what they believed to be the inspection authorized by the warrant, employees of North American Car directed them not to return to North American Car's facility. Thereafter, on June 8, 1979, a petition for an issuance of a rule to show cause why North American Car should not be held in civil contempt was filed in this Court. On June 11, 1979, this Court issued a rule to show cause directing that North American Car appear on June 28, 1979 at which time the issue of whether it should be held in contempt of court would be heard. Prior to the hearing, both parties filed pre-trial memoranda. On June 28, 1979, at 4:12 P.M. a hearing commenced. That hearing was adjourned at 10:00 P.M. on June 28 and resumed the following day with additional testimony being taken prior to the start of another case at 10:00 A.M. and continuing for a brief period during the lunch hour. The following represent this Court's findings of fact, discussion, and conclusions of law with respect to the question of whether North American Car should be held in contempt for refusing to comply with an administrative search warrant.

II. Findings of Fact.

1. The petitioner in the above-captioned action is Ray Marshall, the Secretary of Labor.

2. The Respondent in this case, North American Car Company (North American Car) is a corporation with its principal place of business at 222 South Riverside Plaza, Chicago, Illinois.

3. North American Car maintains offices and a railroad car repair facility in Sayre, Bradford County, Pennsylvania, which is within the Middle District of Pennsylvania.

4. On May 9, 1979, following receipt of an employee complaint from Ronald J. Haney, a worker at the Sayre Plant, representatives of OSHA appeared at the North American Car facility and requested permission to conduct an inspection.

5. The OSHA officers were told at that time that they could conduct an inspection without a warrant if they limited the scope of their search to those matters set forth in the employee complaint which OSHA had received.

6. Representatives of North American Car requested permission to see the employee complaint at that time but it was not released to them.

7. On May 17, 1979, the director of the Wilkes-Barre area office of OSHA applied for and was granted an inspection warrant from the United States Magistrate in Wilkes-Barre, Pennsylvania, relating to the North American Car plant.

8. OSHA representatives, including Robert J. Farronato, a safety compliance officer, returned to North American Car on May 21, 1979 and served a copy of the search warrant on Messrs. Sweeney and Haggerty, representatives of North American Car.

9. The OSHA compliance officers were informed on May 21, 1979 that they could enter the premises for purposes of conducting a search but that they would not be permitted to photograph North American Car employees without the consent of such employees although the search warrant authorizes the taking of photographs of employees during the course of the search.

10. Mr. Farronato deemed North American Car's actions to be a refusal to honor the search warrant and he left the premises.

11. Mr. Farronato and other compliance officers returned to North American Car on May 24, 1979 after having been informed by their director that an inspection pursuant to the warrant would be permitted.

12. On May 24, 1979, the inspectors were admitted to the North American Car plant in Sayre and, following such admission, a copy of Mr. Haney's complaint was made available to North American Car.

13. Mr. Haney, the employee who made the complaint, had been fired by North American Car on March 16, 1979 based upon an alleged falsification of a medical report.

14. Mr. Haney's complaint was made to the Wilkes-Barre OSHA office on April 2, 1979.

15. Mr. Haney was reinstated by North American Car on April 10, 1979 by way of a letter from Dominic J. Pace, the plant manager, indicating that although grievance procedures would not avail Mr. Haney with respect to his discharge, it was Mr. Pace's decision to permit Mr. Haney to return to work based upon his prior work performance and his family responsibilities.

16. Mr. Haney's complaint related to specific areas of the North American Car facility which he believed to be unsafe, including lack of ventilation in a building in which employees worked in tank cars, unsafe conditions with respect to an overhead crane in the steel yard, the use of metal tools in the steam rack area of the plant which could cause sparks inside tank cars, exposure of tank cars to cutting torches and welding equipment without being properly cleaned, the heating of the paint shop area with an open flame gas heater, and the fact that the paint shop area was not equipped with non-sparking electrical hook-ups.

17. Upon being admitted to the North American Car facility on May 24, 1979, Mr. Farronato conferred with North American Car officials for approximately one-half of that day and spent the remainder of the day reviewing injury and equipment records which were maintained in the North American Car office, completing that review on the morning of May 25, 1979.

18. Mr. Farronato began the safety inspection on the afternoon of May 25, 1979. He inspected the wood fabrication shop, a tool storage area, and the air brake shop on that day. Mr. Farronato also inspected the metal fabrication shop and the "cripple" track. On the afternoon of May 25, 1979, Mr. Farronato was informed by North American Car representatives that he would have one more day to complete his inspection because they considered the scope of his inspection to be unreasonable.

19. Mr. Farronato returned on May 29, 1979 and spent another day in his "walkaround" inspection of the plant. During such inspection, he did not enter the storage building, the steam rack, and main steel area, the FRA area, and did not view any storage track facilities. Mr. Farronato also did not inspect the crane or any other item listed in Mr. Haney's complaint.

20. Following the completion of his inspection on May 29, 1979, Mr. Farronato was not permitted to return to the North American Car plant.

21. Mr. Farronato estimated that it would take another 15 working days for him to complete the inspection which he believed was authorized by the search warrant.

22. William F. Davis is a compliance hygiene officer associated with the Wilkes-Barre office of OSHA.

23. Mr. Davis and one other hygiene officer conducted hygiene inspections of the North American Car plant on May 24, May 25, May 29, and May 30, 1979.

24. Upon being admitted to the North American Car plant on May 24, Mr. Davis conducted a "walkaround" inspection after which he conducted two days of "full shift" sampling for silica dust, lead, and excessive noise exposure.

25. Mr. Davis was not permitted to return to North American Car after the completion of his fourth day of testing at the plant.

26. During the time which he spent at the North American Car plant, Mr. Davis did not inspect the sandblasting and paint areas, did not conduct tests for lead, solvents, heavy metals, or hydrogen in the welding area, and did not inspect the "steam rack" area for ventilation as fully as he would have liked to.

27. Mr. Davis is of the view that five more days would be required in order for him to complete the health inspection which he believed was authorized by the search warrant.

28. North American Car also operates a railroad car repair facility at Texarkana, Texas which is three and one-half times as large as the facility in Sayre, Pennsylvania.

29. A safety inspection was performed at the Texarkana plant by OSHA in June of 1979 which took three man-days to complete.

30. The decision to exclude the hygiene officers from North American Car's plant in Sayre, Pennsylvania, after four days of testing, was made by Scott Merrifield, North American Car's safety manager, who has some training in the performance of air sampling tests such as the ones done by Mr. Davis and his associate.

III. Discussion.

The primary issue to be decided by the Court in this case is whether North American Car should be held in contempt based upon its refusal to permit health and safety compliance officers of the Occupational Safety and Health Administration to continue their inspection of the North American Car plant at Sayre, Pennsylvania pursuant to an inspection warrant issued by the United States Magistrate after the inspectors had completed...