Martin v. Gard

• Decision Date: 26 January 1993
• Docket Number: No. 93-4006-SAC.,93-4006-SAC.
• Citation: 811 F. Supp. 616
• Parties: Lynn MARTIN, Secretary of Labor United States Department of Labor, Applicant, v. David Joseph GARD, Jeffrey B. Wilson, and Gregory S. Wilson, Respondents.
• Court: U.S. District Court — District of Kansas

811 F. Supp. 616

Lynn MARTIN, Secretary of Labor United States Department of Labor, Applicant, v. David Joseph GARD, Jeffrey B. Wilson, and Gregory S. Wilson, Respondents.

No. 93-4006-SAC.

United States District Court, D. Kansas.

January 26, 1993.

Stephen G. Reynolds, Marshall J. Breger, Kansas City, MO, Evert H. Van Wijk, Office of the Sol., Kansas City, KS, Tedrick A. Housh, Jr., U.S. Dept. of Labor, Kansas City, MO, for applicant.

Thomas M. Moore, Moore & Bucher, P.C., Kansas City, MO, for respondents.

MEMORANDUM AND ORDER

CROW, District Judge.

On July 24, 1992, a trench collapsed burying two employees of Wilson Construction, Inc. at a storm sewer construction site located in Salina, Kansas. One of the employees died from his injuries. The Secretary of Labor brings this action pursuant to Occupational and Safety and Health Act of 1970 ("Act") (29 U.S.C. § 651 et seq.), specifically 29 U.S.C. § 657(b), seeking an order to compel the respondents, David Joseph Gard, Jeffrey B. Wilson and Gregory S. Wilson, to appear before Mr. Homer Groves, a Compliance Safety and Health Officer with Occupational Safety and Health Administration ("OSHA"), and produce sworn testimony as required by the subpoenas served on them on January 4, 1993.

David Joseph Gard is a site superintendent for Wilson Contractors, Inc., Jeffrey B. Wilson is the president of Wilson Contractors, and Gregory S. Wilson is its secretary/treasurer and safety director. Wilson Constructors is a Kansas corporation with its principal place of business in Salina, Kansas. Wilson Constructors uses materials and supplies manufactured in other states and is engaged in business affecting commerce. It employs between 25 to 75 persons in its business. Wilson Constructors is an employer as that term is defined in the Act at 29 U.S.C. § 652(5).

The day after the fatal trench collapse, a representative of Wilson Constructors notified the Area Office of OSHA in Wichita, Kansas, of this accident. Two days later on July 27, 1992, Homer Groves, a Compliance Safety and Health Officer ("CSHO"), travelled to Salina, Kansas, and inspected the accident site accompanied by a representative of Wilson Constructors. Mr. Groves continued his inspection and investigation of the trench collapse on a daily basis through August 4, 1992. The representatives and employees of Wilson Contractors cooperated with Mr. Groves' investigation by providing the requested documents and records, by submitting to interviews, and, in the case of David Joseph Gard, by giving a handwritten statement.

On or about September 22, 1992, Mr. Groves scheduled a closing conference with Greg Wilson. Both later attended the closing conference during which Mr. Groves advised that his report to the Area Director would recommend that several safety standards were violated on July 24, 1992. Mr. Groves gave Greg Wilson a copy of those safety standards explaining that the Area Director made the final decision whether to issue a citation. Mr. Groves told him not to expect any citation for a couple of months and if a citation were to be issued that it would be done within six months of the accident.

In December of 1992, six employees of Wilson Constructors received subpoenas to appear before the CSHO Homer Groves. Four of the six employees gave sworn statements pursuant to an examination conducted by Evert Van Wijk, an attorney in Kansas City, Missouri, with the Office of the Solicitor for the United States Department of Labor. Mr. Groves was also present during some of these sworn statements.

On January 4, 1983, the three respondents were served with subpoenas ad testificandum to appear before Homer Groves on January 8, 1993, "to testify regarding the working conditions maintained by Wilson Constructors, Inc., at the storm sewer project in Salina, Kansas, from March 1992 until the present and about Wilson Constructors, Inc." Counsel for respondents and counsel for the Secretary of Labor ("Secretary") exchanged through correspondence their respective positions and arguments over the purpose, need, and propriety of these administrative subpoenas. The court will not summarize them here, for the issues that are before the court have been framed by the Secretary's verified application and memorandum in support and the respondents' response to the order to show cause. Suffice it to say, the respondents' counsel wrote that they would not appear as requested by the subpoenas. The Secretary now asks this court to order the respondents to comply with the subpoenas.

ACT

The declared purpose of the Act is "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). Towards that end, the Act obligates an employer to furnish employment and a workplace free from serious hazards to its employees and to comply with standards promulgated under the Act. 29 U.S.C. § 654(a). The Act empowers the Secretary to conduct inspections and investigations, to issue citations and to propose penalties for alleged violations. At 29 U.S.C. § 657(a), the Secretary's authority to enter, inspect and investigate places of employment is set forth:

In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized —

(1) to enter without delay and at reasonable times any ... construction site, or other area, workplace or environment where work is performed by an employee of an employer; and (2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

(emphasis added). The authority to issue citations is found at 29 U.S.C. § 658(a), which provides in pertinent part:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 654 of this title, of any standard, rule or order promulgated ..., he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.

After issuing a citation and completing his investigation or inspection, the Secretary must notify the employer of any proposed penalty to be assessed. 29 U.S.C. § 659(a).

In carrying out his authority to inspect and investigate and to issue citations upon the belief that a violation has occurred, the Secretary is given the means to compel testimony and the production of documents:

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. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States.

29 U.S.C. § 657(b) (emphasis added). When the authority to compel testimony or evidence is defied, the Secretary may apply to the federal courts for an order requiring compliance under threat of contempt:

In case of a contumacy, failure, or refusal of any person to obey such an order any district court of the United States or the United States courts of any territory or possession, within the jurisdiction of which such person is found, or resides or transacts business, upon the application by the Secretary, shall have jurisdiction to issue to such person an order requiring such person to appear to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question, and any failure to obey such order of the court may be punished by said court as a contempt thereof.

29 U.S.C. § 657(b). By statute then, this court may compel the respondents to give sworn statements to the Secretary if (1) the respondents are found, reside or transact business in Kansas; (2) the respondents have failed or refused to obey the Secretary's subpoenas; and (3) the Secretary has filed an application for an order requiring the respondents to comply with the subpoenas. It is without issue that these statutory requirements have been satisfied.

CASE LAW

In the exercise of their lawful investigatory powers, administrative agencies are conferred "broad discretion to require the disclosure of information concerning matters within their jurisdiction." Phillips Petroleum Co. v. Lujan, 951 F.2d 257, 260 (10th Cir.1991) (citations omitted). Over forty years ago, the Supreme Court described this discretion as the power of "original inquiry:"

The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.

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