Reynolds Metals Co. v. Secretary of Labor

• Decision Date: 13 October 1977
• Docket Number: Civ. No. 770215.
• Citation: 442 F. Supp. 195
• Parties: REYNOLDS METALS COMPANY, Plaintiff, v. SECRETARY OF LABOR and U. S. Department of Labor, Defendants.
• Court: U.S. District Court — Western District of Virginia

442 F. Supp. 195

REYNOLDS METALS COMPANY, Plaintiff, v. SECRETARY OF LABOR and U. S. Department of Labor, Defendants.

Civ. No. 770215.

United States District Court, W. D. Virginia, Roanoke Division.

October 13, 1977.

George I. Vogel, II, Wilson, Hawthorne & Vogel, Roanoke, Va., for plaintiff.

Joel D. Gusky, U. S. Dept. of Labor, Philadelphia, Pa., for defendants.

MEMORANDUM OPINION and ORDER

TURK, Chief Judge.

Plaintiff Reynolds Metals Company seeks to have the court quash an inspection warrant issued to the defendant Secretary of Labor by the Honorable Samuel G. Wilson, United States Magistrate, United States District Court, Western District of Virginia on October 11, 1977. The court has jurisdiction over this case under 28 U.S.C. § 1337.

Reynolds Metals Company is a Delaware Corporation with its principal place of business located at 6601 Broad Street, Richmond, Virginia. It owns and operates a plant located at 750 Old Abingdon Highway, Bristol, Virginia where it is engaged in the production of aluminum cans. Specifically, the Bristol plant produces "ends" for aluminum beverage containers. The products of the Bristol plant are shipped in interstate commerce.

On September 1, 1977, Compliance Safety and Health Officer Leon Christiansen, of the Roanoke Field Office of the Occupational Safety and Health Administration appeared unannounced at the Bristol plant. He presented his credentials to plant authorities and sought to make a general inspection. Because he did not carry a search warrant, plant authorities refused him entry, whereupon he left. Subsequently, the Secretary sought, and was granted, a warrant for inspection of the Bristol plant.

Acting pursuant to 29 U.S.C. § 657(a),¹ Officer Christiansen applied for a warrant to inspect the Bristol facility on October 11, 1977. In his affidavit in support of his application Officer Christiansen swore to the following facts:

1. On or about Monday, August 29, 1977, he telephoned the Richmond Area Office of the Occupational Safety and Health Administration to inform them that he was going to make an inspection of the Reynolds Metals Company located in Bristol, Virginia, as a general schedule inspection in accordance with OSHA's Field Operations Manual which set forth a priority list for inspections beginning with imminent danger situations, fatality and catastrophe investigations, complaints, follow-up inspections, and general schedule inspections.

2. Prior to making the inspection he checked a computer printout and information available at the Roanoke Field Office to determine whether the Reynolds Metals Company at Bristol, Virginia, had been inspected. His search indicated the Reynolds plant in Bristol, Virginia, had never been inspected by OSHA.

3. At the time he telephoned the Richmond Area Office, there were no imminent danger situations, fatalities or catastrophes, complaints, or follow-up inspections to be made by him. Pursuant to the Field Operations Manual and long-standing instructions concerning how to make general schedule inspections, he consulted OSHA's "Worst-First" list for industries having the highest incidence of occupational safety and health accidents and injuries to determine which type of facility to inspect next.

4. The "Worst-First" list was compiled by the United States Department of Labor's Bureau of Labor Statistics from data supplied to it from each state which is derived from information obtained from Workmen's Compensation claims. Each industry was given a Standard Industrial Code and was ranked by the frequency of occupational accidents and injuries occurring in each particular type of industry with the most hazardous industries appearing at the top of the list.

5. There were over one thousand separate industries which were ranked on the "Worst-First" list and each industry received a Standard Industrial Code number. The Standard Industrial Code for the metal-can manufacturing industry was 3411.

6. The "Worst-First" list was used by OSHA as a planning guide for general schedule inspections to make certain that industries which have experienced a high incidence of accidents were inspected first thereby maximizing the resources of OSHA in an attempt to reduce the number and severity of occupational accidents and injuries.

7. The "Worst-First" list available to the Roanoke Field Office of OSHA was received during October, 1976, and was compiled from data from the period 1971-1974. There were 34 industries on the list which represented the most hazardous industries in the Nation.

8. The metal-can manufacturing industry appeared 20th on the Roanoke Field Office's "Worst-First" List, placing it within the range of the most hazardous industries in the Nation. Prior to August 29, 1977, the nineteen (19) industries preceding the metal-can manufacturing industry had been inspected by Compliance Safety and Health Officers of the Roanoke Field Office with the exception of the Babcox-Wilcox facility located in Lynchburg, Virginia, which was performing contract work for the United States Navy.

9. The purpose of the inspection sought in this Application for an Inspection Warrant is to determine whether employees of Reynolds Metals Company are exposed to any safety and health hazards resulting from non-compliance with Section 5(a) of the Act and the Safety and Health Standards adopted pursuant to the Act.

10. The inspection and investigation will be conducted during regular working hours or at other reasonable times, within reasonable limits, and in a reasonable manner. The CSHO's credentials will be presented to agents of Reynolds Metals Company, and the inspection and investigation will be commenced as soon as practicable after the issuance of this warrant and will be completed with reasonable promptness.

11. The inspection and investigation will extend to the workplaces and environments where work is performed by employees of the Reynolds Metals Company, and will include 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 Reynolds Metals Company is furnishing to its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to their employees, and whether Reynolds Metals Company is complying with the Occupational Safety and Health Standards promulgated under the Act and the rules, regulations, and orders issued pursuant to the Act.

12. A return will be made to the court at the completion of the inspection and investigation.

The sole issue before the court is whether the Secretary produced enough evidence in support of his application for the warrant to demonstrate to Magistrate Wilson that probable cause existed for an inspection of the Bristol plant.² Both sides concede that if the Secretary adduced enough evidence to demonstrate probable cause that the warrant is valid.

Plaintiff contends that before the warrant may issue, the Secretary must demonstrate that probable cause exists to believe that violations of specific OSHA regulations exist at the Bristol facility. Reynolds challenges the system used to select Reynolds for inspection in this case and argues that specific facts or complaints must form the basis for a finding of probable cause. Reynolds stresses its good safety record at the Bristol plant in support of its position. Plaintiff also argues that because an employer may be subjected to monetary penalties under the act for violations, that a showing of probable cause must be analogous to the showing required in a criminal case.

Defendant contends that probable cause may be established for an OSHA inspection by demonstrating that the inspection is part of a rational plan prepared and approved by the agency in an attempt to effectuate the enforcement of the act. Defendant rejects the position that it must demonstrate that specific violations of the act have taken place at the Bristol plant, or that the act is quasi-criminal in nature and the showing of probable cause is therefore higher. Defendant asserts the facts adduced by agent Christiansen demonstrate probable cause.

Although the Supreme Court has never considered the evidentiary showing required to establish probable cause for issuance of an OSHA inspection warrant, the Court has discussed the warrant requirement and the probable cause showing required in regard to administrative inspections for health and safety violations. The holdings in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967) provide the standards for adjudication of plaintiff's claim.

The Camara court held the Fourth Amendment's proscription against unreasonable searches prohibited warrantless housing inspections to enforce municipal safety ordinances. After holding that warrants were required, the court considered the evidentiary showing required to establish probable cause. In considering the probable cause requirement, the court specifically rejected the city's argument that a warrant could only issue if the inspector had probable cause to believe that a particular dwelling contained violations of the applicable municipal ordinance. Camara, supra 387 U.S. at 534, 87 S.Ct. 1727.

Mr. Justice White prefaced his discussion of the requirements for probable cause by writing:

In cases in which the Fourth Amendment requires that a warrant to search be obtained, "probable cause" is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. To apply this standard, it is obviously necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen. For example, in a criminal investigation,

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