Marshall v. Wollaston Alloys, Inc.

• Citation: 479 F. Supp. 1102
• Decision Date: 30 November 1979
• Docket Number: Civ. A. No. 79-827-Z.
• Parties: Ray MARSHALL, Secretary of Labor, United States Department of Labor v. WOLLASTON ALLOYS, INC. and Binney Tibbetts, Individually and as Vice President.
• Court: U.S. District Court — District of Massachusetts

479 F. Supp. 1102

Ray MARSHALL, Secretary of Labor, United States Department of Labor v. WOLLASTON ALLOYS, INC. and Binney Tibbetts, Individually and as Vice President.

Civ. A. No. 79-827-Z.

United States District Court, D. Massachusetts.

November 30, 1979.

Johanna Harris, U.S. Dept. of Labor, Boston, Mass., for plaintiff.

Robert D. Moran, Washington, D.C., for defendants.

MEMORANDUM OF DECISION

ZOBEL, District Judge.

Plaintiff petitioned, pursuant to 28 U.S.C. § 636(d), for an adjudication of contempt against defendants for an alleged refusal of defendants to comply with an administrative search warrant. Defendants moved to quash the warrant.

Defendants deny the charge of contempt. They contend that they acceded to the search insofar as it was authorized by the warrant, but that certain requests of plaintiff's compliance officers exceeded the express terms of the warrant. They also attack the validity of the warrant on the ground that it was improperly issued upon an insufficient showing of probable cause. As the search exceeded the scope of the warrant and the petition for contempt must therefore be dismissed, I do not reach the issue of probable cause.

The parties do not dispute the essential facts. On April 9, 1979 a United States Magistrate, upon an ex parte application by Patrick J. Catino, an Occupational Safety and Health Administration ("OSHA") compliance officer, issued the warrant in question for "an inspection of the worksite described as Wollaston Alloys, Inc., 205 Wood Road, Braintree, Massachusetts 03184." During the afternoon of April 9, 1979, two OSHA compliance officers presented the warrant to defendant Tibbetts at the worksite. They subsequently entered and inspected the premises. On the following day, in the course of the physical inspection of the workplace, one of the compliance officers asked defendant Tibbetts to absent himself so that she might interview an employee privately. Tibbetts refused and explained that he would not permit any private employee interviews on the premises of defendant Wollaston Alloys. The compliance officers proceeded to other phases of the inspection without conducting private employee interviews. Tibbetts later, on advice of counsel, refused a second request for private interviews; both compliance officers left without completing the inspection and this proceeding ensued.

The warrant describes certain specific inspection activities in which the compliance officer is authorized to engage during the search pursuant to various cited statutory and regulatory provisions and certain Supreme Court cases.¹ Defendants rely on the fact that the warrant did not authorize private employee interviews, and argue that their refusal to allow such interviews cannot, therefore, be contumacious. Private employee interviews, although admittedly not among the specifically described activities, are clearly authorized by the cited statutes and regulations and plaintiff argues that citation of the applicable statutes and regulations sufficiently defines the scope of the search that defendants' refusal to permit the interviews mandates a finding of contempt against them.

In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court held that warrantless OSHA inspections violate the Fourth Amendment safeguards against unreasonable searches. By imposing a warrant requirement on OSHA inspections, the Court interposed a neutral probable cause finding between OSHA regulatory authorities and OSHA-regulated establishments. Id., at 320, 98 S.Ct. 1816. The Court thereby sought to ensure to such employers one of the "important functions" of a warrant— "to then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed." Id., at 323, 98 S.Ct. at 1826.

The statutory and regulatory provisions cited in the warrant before me list a variety of inspection activities all of which are permitted, but not required, in the course of an OSHA inspection. Plaintiff argues that the mere reference to such provisions adequately advises owners of the extent to which they may object to the inspection without risking contempt of court. In Marshall v. Pool Offshore Co., 467 F.Supp. 978 (D.C.W.D.La.1979), plaintiff lost an overbreadth challenge to a warrant which at least tracked statutory and regulatory language and refused to find contempt without more specificity. This warrant which merely cites the statutory and regulatory...