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In re Establishment Inspection of Gilbert & Bennett Manufacturing Co.

decided: January 2, 1979.

IN THE MATTER OF: ESTABLISHMENT INSPECTION OF GILBERT & BENNETT MANUFACTURING COMPANY, A CORPORATION. APPEAL OF: RAYMOND H. ROUTH AND FRANK A. ELTON., RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF-APPELLEE,
v.
CHROMALLOY AMERICAN CORPORATION, FEDERAL MALLEABLE DIVISION, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-856 - Joel M. Flaum, Judge. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 77-C-291 - John W. Reynolds, Chief Judge.

Before Swygert and Pell, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Swygert

These appeals present questions concerning the legality of administrative inspection warrants issued pursuant to the Occupational Safety and Health Act of 1970 (hereinafter the "Act"), 29 U.S.C. §§ 651 et seq.*fn1

Gilbert & Bennett Manufacturing Company is appealing an April 17, 1977 order denying the Company's motion to quash an administrative inspection warrant issued pursuant to the Act, and holding the Company in civil contempt for refusing to comply with that warrant.*fn2 In this appeal the warrant to conduct an inspection was based on an employee complaint of an unsafe working condition. Pursuant to section 8(f)(1) of the Act, 29 U.S.C. § 657(f)(1), such inspections are required in response to an employee complaint.*fn3

Chromalloy American Corporation is appealing a similar order holding the company in contempt for refusing to comply with a duly-issued OSHA warrant authorizing inspection of its West Allis, Wisconsin plant. In the Chromalloy appeal the warrant to inspect was issued after a finding of probable cause based on the purpose of the Act, that is, to afford safe and healthful conditions in the workplace, and on the inherently dangerous nature of Chromalloy's foundry business.

The appeals were fully briefed and orally argued prior to the Supreme Court rendering its decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), holding non-consensual, warrantless OSHA inspections unconstitutional. As that decision was deemed relevant to the issues raised in these appeals, the parties were ordered to file supplemental briefs.

I

Appeal No. 77-1459

In Barlow's the Court did not deal directly with the workplace inspections conducted pursuant to section 8(a), 29 U.S.C. § 657(a),*fn4 because in that case the Secretary of Labor had not sought an inspection warrant and no warrant was, in fact, issued. The Court proceeded to indicate, however, that probable cause could be established if specific evidence of an existing violation was presented, or alternatively, if a showing was made that reasonable legislative or administrative standards for conducting an OSHA inspection were satisfied. The Court stated, in pertinent part:

Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular (establishment).' Camara v. Municipal Court, (387 U.S. 523,) 538, 87 S. Ct. (1727), 1736, (18 L. Ed. 2d 930.) A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights.

436 U.S. at 320-21, 98 S. Ct. at 1824-1825 (footnotes omitted) (emphasis added).

In its supplemental brief Gilbert & Bennett has interpreted this language to mean that when a warrant is applied for on the basis of an employee complaint, the general standard of probable cause applied in criminal matters is required.

We do not agree with Gilbert & Bennett's interpretation of the first alternative basis for establishing probable cause. The Barlow's Court quite clearly held that "probable cause in the criminal sense is not required." 436 U.S. at 320, 98 S. Ct. at 1824. Moreover, it later cited Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), a case involving inspections of private residential property as part of an enforcement program of a municipal housing code. In Camara the Court emphasized the controlling standard of "reasonableness" required by the Fourth Amendment and held that "in determining whether there is probable cause to issue a warrant for (an) inspection the need for the inspection must be weighed in terms of (the) reasonable goals of code enforcement." 387 U.S. at 535, 87 S. Ct. at 1734. Finding that the inspections in Camara were justified by a valid public interest, in that they were "aimed at securing . . . wide compliance with minimum physical standards for private property" in order "to prevent even the unintentional development of conditions which are hazardous to public health and safety," id., the Court held that a warrant for inspection could be issued if reasonable legislative or administrative standards for conducting the inspection were satisfied. Id. at 538, 87 S. Ct. 1727. Such standards, which would vary depending on the code being enforced, could be based

upon the passage of time, the nature of the building (E. g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.

Id. Thus, the Camara Court developed a probable cause test for administrative-type searches of residential buildings which was less stringent than that required in criminal investigations. See also See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967) (applying the same standard to administrative searches of business establishments). Because of the aforementioned quote from Barlow's negating the requirement of probable cause in the criminal sense and because the OSHA inspections involved in these appeals are similar to those in Camara and See, the less stringent probable cause test must be applied here.

The application for the inspection warrant for the Gilbert & Bennett plant alleged the following bases for the issuance of the requested warrant:

3. The desired inspection is also in response to an employee complaint that employees are required to climb on palletized stock (wire products), which is handled by forklift trucks. Further, the employee complaint alleges that the employer would "climb" (stack) stock as high as necessary. Both items represent potential violations of section 5(a)(1) of the Act which requires employers to furnish to each of his 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 employees' in that, if conditions are as alleged at said employer's ...


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