Simplex Time Recorder Co. v. Secretary of Labor, Nos. 83-2164

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtDAVIS; WALD
Citation766 F.2d 575
Parties, 12 O.S.H. Cas.(BNA) 1401, 1984-1985 O.S.H.D. ( 27,328 SIMPLEX TIME RECORDER COMPANY, Petitioner, v. SECRETARY OF LABOR, Respondent. William E. BROCK, Secretary of Labor, Petitioner, v. SIMPLEX TIME RECORDER COMPANY, Respondent.
Docket Number83-2297,Nos. 83-2164
Decision Date05 July 1985

Page 575

766 F.2d 575
247 U.S.App.D.C. 85, 12 O.S.H. Cas.(BNA) 1401,
1984-1985 O.S.H.D. ( 27,328
SIMPLEX TIME RECORDER COMPANY, Petitioner,
v.
SECRETARY OF LABOR, Respondent.
William E. BROCK, Secretary of Labor, Petitioner,
v.
SIMPLEX TIME RECORDER COMPANY, Respondent.
Nos. 83-2164, 83-2297.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 20, 1985.
Decided July 5, 1985.

Page 579

Petitions for Review of an Order of the Occupational Safety and Health Review Commission.

Robert D. Moran, Washington, D.C., for petitioner in No. 83-2164 and respondent in No. 83-2297.

Domenique Kirchner, Atty., Dept. of Labor, Washington, D.C., with whom Judith N. Macaluso, Asst. Counsel for Appellate Litigation, Dept. of Labor, Washington D.C., was on brief, for respondent in No. 83-2164 and petitioner in No. 83-2297.

Before WALD, BORK and DAVIS *, Circuit Judges.

Opinion for the Court filed by Circuit Judge DAVIS.

Opinion dissenting only as to Part VII(A) filed by Circuit Judge WALD.

DAVIS, Circuit Judge:

This is a case under OSHA (the Occupational Safety and Health Act, 29 U.S.C. Secs. 651-678 (1982)) in which both sides appeal. Simplex Time Recorder Co. (Simplex or the company) petitions for review of an order issued by the Occupational Safety and Health Review Commission (OSHRC or Commission), charging Simplex with several nonserious violations of OSHA, and assessing a $3600 penalty as well as directing abatement. The Secretary of Labor (Secretary) cross-petitions, alleging error in the Commission's determination that the charges are nonserious; the Secretary also seeks review of the Commission's decision that Simplex did not violate an Occupational Safety and Health Administration (the Administration) regulation which requires employers to report incidents resulting in the hospitalization of five or more employees. We affirm the Commission's decision insofar as properly appealed.

I. BACKGROUND

Simplex is a manufacturer of time clocks, fire detection equipment and other mechanical devices. The dispute concerns mainly the operations performed in Building 11 of Simplex's manufacturing facility in Springfield, Massachusetts. Building 11 contains three spray booths in which Simplex paints its products. Two of these booths are electrostatic, i.e., they contain automatic, mechanized painting equipment which requires no continuous employee supervision. The third booth is manual. Hanging from an overhead conveyor, the pieces to be painted pass through the electrostatic booths and into the manual booth where a company employee inspects the paint job and touches up spots the electrostatic sprayers missed. The three booths are separated by walls except for an opening through which the conveyor takes the parts from one station to the next.

On August 6, 1981, a fire erupted in Building 11 which resulted in the death of a Simplex employee. The deceased's brother filed a written complaint with the Administration asserting that hazardous conditions existed in the electrostatic spray booths. The Secretary decided to investigate these allegations.

On August 24, 1981, an Administration compliance officer (Mr. Barnes) arrived at Simplex to conduct that investigation. Before he was admitted onto company property, Simplex's safety engineer (Mr. Tremblay) took a copy of the complaint to the company's counsel. When Mr. Tremblay returned, he informed Mr. Barnes that Simplex would allow an inspection. The actual inspection took five days--through the end of August and beginning of September 1981. During the inspection, Mr. Tremblay escorted Mr. Barnes throughout Building 11, and was apparently quite solicitous overall. Neither Mr. Tremblay nor any

Page 580

other representative of Simplex objected to any aspect of Mr. Barnes' inspection at that time.

Later in 1981, the Secretary issued a citation charging Simplex with, inter alia, 1 four serious violations of Administration regulations concerning the use of flammable or combustible liquids (29 C.F.R. Sec. 1910.106 (1984)) and Administration regulations regarding spray finishing with flammable and combustible materials (id., Sec. 1910.107). The Secretary also charged Simplex with one willful violation of the provisions on cleaning spray booths under Sec. 1910.107. The particulars of these charges are set forth in our discussion, infra.

The Commission assigned this case (OSHRC Docket No. 82-12) to an Administrative Law Judge (ALJ), who consolidated the case with another (OSHRC Docket No. 82-301) also involving Simplex. In 82-301 the Secretary charged Simplex with violating Administration regulation 29 C.F.R. Sec. 1904.8 (1984), requiring that employers notify the Administration of employment-related accidents resulting in the hospitalization of five or more employees. This charge stemmed from a separate incident in which seventeen Simplex employees in the company's printed circuit department inhaled natural gas which leaked into their work area through cracks in the wall of the building. One employee remained in the hospital for nine days; the others were released on the same day they were examined.

The ALJ conducted a ten-day hearing in October 1982 and January 1983. At the hearing, Simplex presented several objections to the Secretary's citations generally, and denied each charge specifically. Simplex's general objections were: first, the search by Mr. Barnes exceeded the scope of Simplex's consent because it covered areas not specifically mentioned in the complaint to the agency; second, the regulations said to support the charges in Docket No. 82-12 are invalid because they purport to be national consensus standards promulgated pursuant to abbreviated procedures under 29 U.S.C. Sec. 655(a), but were actually modified standards which can only be promulgated under the more elaborate procedures of 29 U.S.C. Sec. 655(b); and, third, the Secretary's citation was improperly amended (after the six-month statute of limitations had run) to incorporate a period of time not included in the original citation. As to the single charge in Docket No. 83-301, Simplex argued that only one employee was actually "hospitalized," and no report was required.

The ALJ rejected Simplex's three general objections in Docket No. 82-12. With regard to the search, he ruled that Simplex impliedly consented to every aspect of the inspection by escorting Mr. Barnes throughout, and never voicing an objection. The ALJ also ruled that the regulations were valid for the purposes of this case because the only pertinent modification by the Secretary of a national consensus standard merely deleted a redundancy in the standard and did not affect Simplex's rights. The ALJ allowed the amendment to the complaint because it did not inject substantially different issues into the case, and the new time period better reflected Simplex's production processes and procedures.

Simplex contends that the ALJ erred in refusing to allow it to call certain witnesses. Some of these witnesses had already testified, and the ALJ determined that their testimony would be merely cumulative. Other proposed witnesses were top Department of Labor officials, who the ALJ found to have no personal knowledge of the facts surrounding this particular case. He refused to allow the company to call those witnesses.

On the four charges of serious violations, the ALJ ruled that the Secretary had proved a violation of the regulations, but had failed to demonstrate that the violations were "serious" within the OSHA definition, 29 U.S.C. Sec. 666(k). Because he found these violations to be nonserious, he

Page 581

imposed no monetary sanctions. The ALJ also sustained the charged willful violation (entailing a monetary penalty). However, the ALJ found that Simplex did not violate the reporting regulation since only one employee was actually "hospitalized."

Each side sought review by the Commission. On October 28, 1983, the Commission directed review only as to the finding of a willful violation. Three days later, the Commission issued an order severing Docket No. 82-301 and those items in Docket No. 82-12 not mentioned in the Direction for Review. As to these severed matters, the decision of the ALJ became the final order of the Commission. The current petition and cross-petition are from this final order.

II. THE SEARCH

The company argues that the search in this case was more extensive than allowed by its consent. It points out that the complaint which led to the search alleged violations only in the electrostatic booths, while the Administration inspector searched the manual booth also. Several of the resulting citation items concern the manual booth. Simplex concludes that the evidence supporting these charges should have been suppressed as the fruit of an unconstitutional search, citing Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), in which the Supreme Court held that Administration inspectors must obtain a search warrant prior to instituting a nonconsensual search. We conclude, however, that neither Simplex's premise nor its conclusion is correct.

To determine whether a party has consented to a search, a court must look to the circumstances surrounding the event. Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854 (1973); Donovan v. A.A. Beiro Construction Co., 241 U.S.App.D.C. 161, 746 F.2d 894, 901 (1984). No one factor is necessarily decisive, but the Supreme Court has held that knowledge by the party challenging the search of its right not to consent is "highly relevant" to the evaluation. United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879-80, 64 L.Ed.2d 497 (1980). Here, Mr. Tremblay consulted with Simplex's counsel after initially forbidding Mr. Barnes to enter. This indicates that Simplex knew it could object at any time to Mr. Barnes' continued inquiries and require him to obtain a warrant. For that reason its...

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73 practice notes
  • NEC Corp. v. U.S., No. 98-1020
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 7 Agosto 1998
    ...422, 61 S.Ct. 999; In re Office of Inspector General, 933 F.2d 276, 278 (5th Cir.1991); Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586 (D.C.Cir.1985) (absent "extraordinary circumstances," high agency officials should not "be called to testify regarding their reasons for......
  • Kiewit Power Constructors Co. v. Sec'y of Labor, No. 18-1282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 15 Mayo 2020
    ...(9th Cir. 1980) ; Deering Milliken , 630 F.2d at 1099. We adopted the latter approach in Simplex Time Recorder Co. v. Secretary of Labor , 766 F.2d 575 (D.C. Cir. 1985), concluding "that Congress intended review of the validity of section 6 standards to be available in enforcement proceedin......
  • U.S. v. Sensient Colors, Inc., Civil Action No. 07-1275.
    • United States
    • U.S. District Court — District of New Jersey
    • 22 Julio 2009
    ...circumstances. See Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir.2007) (citing Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 586 (D.C.Cir.1985); In re United States (Holder), 197 F.3d 310, 313 (8th Cir.1999); In re FDIC, 58 F.3d 1055, 1060 (5th Cir.1995); In re United Sta......
  • Sec. & Exch. Comm'n v. Comm. on Ways, 14 Misc. 193 (PGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 13 Noviembre 2015
    ...(Director of the Office of Thrift Savings is a high-ranking government official); Simplex Time Recorder Co. v. Secretary of Labor , 766 F.2d 575, 586 (D.C.Cir.1985) (the Solicitor of the U.S. Department of Labor, the Secretary of Labor's chief of staff, the Regional Administrator for the Oc......
  • Request a trial to view additional results
71 cases
  • NEC Corp. v. U.S., No. 98-1020
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 7 Agosto 1998
    ...422, 61 S.Ct. 999; In re Office of Inspector General, 933 F.2d 276, 278 (5th Cir.1991); Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586 (D.C.Cir.1985) (absent "extraordinary circumstances," high agency officials should not "be called to testify regarding their reasons for......
  • Kiewit Power Constructors Co. v. Sec'y of Labor, No. 18-1282
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 15 Mayo 2020
    ...(9th Cir. 1980) ; Deering Milliken , 630 F.2d at 1099. We adopted the latter approach in Simplex Time Recorder Co. v. Secretary of Labor , 766 F.2d 575 (D.C. Cir. 1985), concluding "that Congress intended review of the validity of section 6 standards to be available in enforcement proceedin......
  • U.S. v. Sensient Colors, Inc., Civil Action No. 07-1275.
    • United States
    • U.S. District Court — District of New Jersey
    • 22 Julio 2009
    ...circumstances. See Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir.2007) (citing Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 586 (D.C.Cir.1985); In re United States (Holder), 197 F.3d 310, 313 (8th Cir.1999); In re FDIC, 58 F.3d 1055, 1060 (5th Cir.1995); In re United Sta......
  • Sec. & Exch. Comm'n v. Comm. on Ways, 14 Misc. 193 (PGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 13 Noviembre 2015
    ...(Director of the Office of Thrift Savings is a high-ranking government official); Simplex Time Recorder Co. v. Secretary of Labor , 766 F.2d 575, 586 (D.C.Cir.1985) (the Solicitor of the U.S. Department of Labor, the Secretary of Labor's chief of staff, the Regional Administrator for the Oc......
  • Request a trial to view additional results
2 firm's commentaries
  • The Apex Doctrine And The C-Suite Deponent
    • United States
    • Mondaq United States
    • 3 Junio 2022
    ...319 (D.D.C. 1962); In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995) (collecting cases); Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586-87 (D.C. Cir. 1985); Nat'l Nutritional Foods Ass'n v. FDA, 491 F.2d 1141, 1144-46 (2d Cir. 1974); Kyle Engineering Co. v. Kleppe, 600 F.2d......
  • The Apex Doctrine And The C-Suite Deponent
    • United States
    • Mondaq United States
    • 3 Junio 2022
    ...319 (D.D.C. 1962); In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995) (collecting cases); Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586-87 (D.C. Cir. 1985); Nat'l Nutritional Foods Ass'n v. FDA, 491 F.2d 1141, 1144-46 (2d Cir. 1974); Kyle Engineering Co. v. Kleppe, 600 F.2d......

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