Pelton Casteel, Inc. v. Marshall

• Decision Date: 20 December 1978
• Docket Number: No. 78-1770,78-1770
• Citation: 588 F.2d 1182
• Parties: 6 O.S.H. Cas.(BNA) 2137, 1978 O.S.H.D. (CCH) P 23,213 PELTON CASTEEL, INC., et al., Plaintiff-Appellant, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1182

588 F.2d 1182

6 O.S.H. Cas.(BNA) 2137, 1978 O.S.H.D. (CCH) P 23,213

PELTON CASTEEL, INC., et al., Plaintiff-Appellant, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Defendant-Appellee.

No. 78-1770.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 7, 1978.

Decided Dec. 20, 1978.

John W. Brahm, Milwaukee, Wis., for plaintiff-appellant.

Charles I. Hadden, Washington, D. C., for defendant-appellee.

Before CUMMINGS, PELL and WOOD, Circuit Judges.

CUMMINGS, Circuit Judge.

The question before us is whether the district court properly denied Pelton Casteel, Inc.'s motion to quash an administrative inspection warrant, simultaneously holding that company in civil contempt for refusing to comply with the warrant. We affirm.

The warrant involved in this case originally stemmed from an inspection of the Company's former plant in Milwaukee, Wisconsin, by compliance officers representing the Secretary of Labor under the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 Et seq.). Such officers are authorized to inspect workplaces and issue citations describing safety and health violations and to fix abatement times and civil penalties if they discover violations of the Act (29 U.S.C. §§ 657-659). The Act is administered by the Department of Labor's Occupational Safety and Health Administration (OSHA).

Pursuant to that statute and regulations thereunder representatives of the petitioner Secretary of Labor inspected the Company's Milwaukee plant on December 20, 1973. As a result of this health inspection, a "nonserious violation" citation ¹ was issued on June 5, 1974, with respect to six items. ² Various abatement dates were proposed together with penalties of $240. Since the Company did not contest the citation within 15 days, it became a final abatement order under 29 U.S.C. § 659(a). ³

On September 12 and 13, 1977, OSHA inspectors conducted another health inspection of the Milwaukee plant to determine compliance with the 1974 abatement order and found unabated "other than serious" exposures to respirable silica. This resulted in the imposition of various abatement dates but no penalty. At the same time, there was an inspection with respect to coal tar pitch volatiles resulting in a November 22 "serious violation" citation with a $600 penalty and additional abatement dates, but the serious portion of this citation was withdrawn by the Area Director of OSHA on December 13, 1977. However, his letter said the "serious" designation was being withdrawn "only because of a technicality in procedure * * * and that the citation did reflect a serious hazard and that the withdrawal of the citation in no way indicates that a potential hazard does not exist" (App. 39). On April 6, 1978, the Area Director reminded the Company that OSHA expected a report from the Company as to corrective action with respect to all violations. The letter of April 6 closed by stating: "May we have this report by April 17, 1978, so this file can be closed." The Company submitted the requested report by letter of April 11, 1978 (App. 22).

In March 1977, the Company opened a new facility in Oak Creek, Wisconsin. It became fully operational in May 1977. Some of the operations which had given rise to the 1974 citation were moved to the new Oak Creek plant, whereas others remained at the old Milwaukee plant (App. 22). The latter were the subject of the September follow-up inspection at the Milwaukee plant, and the moved operations were the target of the attempted inspection at issue in this case. OSHA had asserted that Casteel asked for more time to abate the 1974 violations on the ground that some of the operations would be moved to the new plant, which would ameliorate the problem. Casteel has not contested this. On September 13, 1977, on the occasion of the follow-up inspection of the Milwaukee plant, Fred Boelter, compliance safety and health officer of OSHA, allegedly told Harold M. Sotski, the Company's vice president, manufacturing, that "any operation that had been previously cited (by OSHA) but was no longer at the Milwaukee location would now be removed from the active citation list." No employee complaints have been submitted to the Secretary of Labor concerning the Oak Creek facility. Both plants are still in operation.

On March 27, 1978, two compliance officers of OSHA presented themselves at the Company's Oak Creek plant to conduct an investigation. One of the officers, Fred Boelter, told Company Vice President Sotski that "the purpose of the investigation was a follow-up inspection as well as a new inspection at a new facility." However, Boelter admitted that the investigation was not precipitated by an employee complaint. When Sotski refused entry, Boelter told him that because of his refusal, he should expect a more thorough and detailed inspection when the compliance officers returned (App. 22).

On March 28, Boelter and a fellow compliance officer of OSHA applied to Magistrate McBride in Milwaukee for an inspection warrant for the Oak Creek plant. In paragraph 2 of the application the officers stated that the desired inspection was part of a follow-up to a previous inspection at the Company's Milwaukee workplace where they had found that the Company's employees were exposed to numerous "serious health hazards" involving "respirable quartz silica, respirable nuisance dust, iron oxide and copper fumes." Coal tar pitch volatiles, the cause of the serious violation citations of November 22, 1977, were not mentioned, perhaps because coal tar pitch was apparently used only at the Milwaukee plant. The applicants stated that an inspection of the new plant was required to ensure abatement of the previous health hazards.

The application also stated in "boilerplate" language:

"6. The inspection and investigation will extend to the factory, plant, establishment or other area, workplace, or environment where work is performed by employees of the employer, and to all pertinent conditions, structures, machines, apparatus, devices, equipment, materials, and all other things therein (including records, files, papers, processes, controls, and facilities) bearing on whether this employer is furnishing to its employees employment and a place of employment which are free from recognized health hazards that are causing or are likely to cause Death or serious physical harm to its employees, and whether this employer is complying with the occupational safety and health standards promulgated under the Act and the rules, regulations, and orders issued pursuant to the Act." (Emphasis supplied.) ⁴

Acting upon this application and pursuant to Section 8(a) of the Act (29 U.S.C. § 657(a)) Magistrate McBride issued the requested warrant on the same date after finding that probable cause had been shown by OSHA's sworn application. The warrant stated that it was "based on the grounds set forth in this warrant application" and was issued so that OSHA could determine whether the Company's Oak Creek place of employment was free "from recognized hazards that are causing or are likely to cause death or serious physical injuries to its employees, and whether this employer is complying with the occupational safety and health standards promulgated under the Act and the rules, regulations, and orders issued pursuant to the Act." This language was derived from paragraph 6 of the application.

Two days later, the same compliance officers returned to the Oak Creek plant with the warrant for inspection signed by Magistrate McBride. Boelter repeated that the inspection was a follow-up of the old citations at the Milwaukee plant as well as a new inspection, although there were no employee complaints. Again Sotski denied entry to the compliance officers.

On April 24, 1978, the Secretary of Labor petitioned the district court to hold the Company, Vice President Sotski and factory superintendent Jerome Dziedzic in civil contempt of court for their refusal to comply with the March 28 inspection warrant. Nine days later the Company filed a motion to quash the inspection warrant. The motion was supported by two affidavits. The affidavit of superintendent Dziedzic stated that in 1977 and in 1978 there had been no occupational illnesses, no fatalities, and no permanent disabilities at the Oak Creek facility and that in 1977 there had been only 11 lost workday cases and in 1978 only one. Sotski's affidavit showed that the Company had received no serious citations at its Milwaukee plant except the coal tar pitch one that had been withdrawn. The affidavit also showed that in constructing its Oak Creek plant the Company had contracted with environmental engineers to insure installation of equipment in its new plant according to OSHA standards, that the Company had spent in excess of $1,000,000 to comply with OSHA's dust and fume standards, and that an "in-plant engineering department constantly monitors equipment to insure compliance with OSHA's standards" (App. 22).

On May 5, 1978, the district court heard legal arguments with respect to the Secretary's petition for contempt and the Company's motion to quash the inspection warrant. At the conclusion of the arguments, the district judge announced his decision holding the respondents in contempt and denying their motion to quash the inspection warrant. First of all, he ruled that the obtaining of a warrant by the Secretary avoided a Fourth Amendment problem, citing Marshall v. Chromalloy American Corporation, 433 F.Supp. 330 (E.D.Wis.1977). ⁵ He then held that the Magistrate had jurisdiction under Rule 1(7) of the Rules of the United States District Court for the Eastern District of Wisconsin promulgated under 28 U.S.C. § 636(a).

As to the representation to the Magistrate that "serious health hazards" had been found at the Company's Milwaukee plant, Judge Gordon stated that this did not mislead the Magistrate because the application "described in detail the nature of the...