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In re Establishment Inspection of Caterpillar Inc.

May 25, 1995

IN THE MATTER OF: ESTABLISHMENT INSPECTION OF CATERPILLAR INCORPORATED,

RESPONDENT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois.

No. 94 C 60--Michael M. Mihm, Chief Judge.

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

ARGUED MARCH 30, 1995

DECIDED MAY 25, 1995

After receiving complaints about the conditions of cranes at one of Caterpillar's work sites, the Occupational Safety and Health Administration ("OSHA") sought to inspect that site. The district court issued a warrant permitting both an OSHA compliance officer and a striking Caterpillar employee representative to inspect part of the premises. The district court then denied Caterpillar's motion to quash the warrant. After permitting the inspection, Caterpillar appealed that decision. We now affirm.

I.

On June 7, 1994, OSHA received a written complaint signed by Keith Hacker, James Turney, and W.B. Crowden, employees of Caterpillar who worked in "Building G" of Caterpillar's Mossville Technical Center. The complaint alleged the existence of violations of OSHA's overhead crane standard. 29 C.F.R. sec. 1970.179. In mid-June, the United Auto Workers ("UAW"), which represents a number of Caterpillar workers, voted to strike the plant. Hacker, Turner, Crowden and Steven Mitchell all participated in the strike and chose not to cross the picket line.

After investigating the complaint, OSHA concluded that there were reasonable grounds for believing that violations existed and that an inspection under Section 8(f)(1) of the Occupational Safety and Health Act of 1970 (the "Act"), 29 U.S.C. sec. 657(f)(1), was therefore required. On September 12, 1994, an OSHA compliance officer requested Caterpillar's consent to perform an inspection of certain cranes in the Mossville Center and to review records relating to those cranes. Mitchell accompanied the compliance officer. While Caterpillar did not object to the compliance officer's inspection, it refused to allow Mitchell to accompany him. OSHA decided not to conduct the inspection without Mitchell's presence.

OSHA then applied for an Inspection Warrant and requested that Mitchell be permitted to observe the inspection. Magistrate Judge Robert J. Kauffman granted this motion, ex parte, allowing Mitchell to accompany the OSHA compliance officer. Later, on his own initiative, the magistrate judge vacated the warrant and issued a new one that deleted that portion that allowed Mitchell to observe the inspection. After OSHA filed exceptions with the district court, the court issued a warrant authorizing Mitchell to accompany the compliance officers during the inspection, although the warrant expressly limited the inspection to specific items contained in the sec. 8(f)(1) complaint and any hazardous conditions found in plain view.

Caterpillar initially refused to comply and moved to quash the warrant "to the extent that it allows a striking employee to accompany the compliance officer on his inspection." The Secretary of the Department of Labor (the "Secretary") petitioned the court to find Caterpillar in civil contempt. On October 19, 1994, the district court denied Caterpillar's Motion. On October 20, 1994, Caterpillar filed its notice of appeal and at the same time moved this court for a stay of the district court's order. This court first granted a temporary stay and then, on October 26, 1994, denied the motion and lifted the stay. Rather than risk contempt, Caterpillar complied with the district court's order and allowed the inspection. Caterpillar then appealed.

II.

Caterpillar does not challenge the OSHA compliance officer's right of entry to inspect its premises. Rather, it asserts that the district court lacked authority to compel it to allow a private party to accompany the officer during the inspection. Specifically, Caterpillar maintains that as a matter of statutory interpretation, the Act prohibits striking employees from accompanying OSHA compliance officers on inspections. While we ordinarily review statutory interpretations de novo, here we adhere to the general rule that the Secretary's interpretations of the Act and its ...


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