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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
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No. 92-4017
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1994.C06.41955 <http://www.versuslaw.com>; 16 F.3d
1455
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decided: February 24, 1994.
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TRINITY INDUSTRIES, INC., PETITIONER,
v.
OCCUPATIONAL SAFETY
AND HEALTH REVIEW COMMISSION, RESPONDENT.
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ON PETITION for Review of an Order by the Occupational Safety and
Health Review Commission. Nos. 89-2168, 89-2169.
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For TRINITY INDUSTRIES, INC., Petitioner: Robert E. Rader, Jr.,
ARGUED, BRIEFED, Rader, Smith, Campbell & Fisher, Dallas,
TX.
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For THE OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION,
Respondent: Ray Darling, Secretary, OSHRC, Washington, DC. Charles F.
James, ARGUED, BRIEFED, U.S. Department of Labor, Office of the Solicitor,
Washington, DC. Janice L. Thompson, Office of the Solicitor, U.S.
Department of Labor, Cleveland, OH.
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Before: Martin, Siler, and Batchelder, Circuit Judges. Martin, Circuit
Judge, delivered the opinion of the court, in which Siler, Circuit Judge,
joined. Batchelder, Circuit Judge, delivered a separate Concurring
opinion.
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Author: Martin
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BOYCE F. MARTIN, JR., Circuit Judge. Trinity Industries, Inc. appeals
an order of the Occupational Safety and Health Review Commission affirming
an administrative law Judge's decision to deny Trinity's motion to
suppress evidence. For the following reasons, we enforce the order of the
Commission.
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I
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The facts, which are essentially undisputed, and the procedural
history of this matter have already been set forth comprehensively in the
Commission's order. See Secretary of Labor v. Trinity Industries, Inc.,
1992 OSAHRC LEXIS 122, 15 O.S.H. Cas. (BNA) 1827 (Rev. Comm. 1992).
Nevertheless, we summarize some of the background in order to answer the
issues raised by the parties before us.
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Trinity Industries manufactures tanks and what are referred to as
pressure vessels at its plant in Sharonville, Ohio. On February 23, 1988,
a Trinity employee filed a formal complaint with the Occupational Safety
and Health Administration, alleging that portable grinders and rollers
used in the plant were improperly wired, that compressed gas cylinders
were unsecured and not fitted with valve protection caps, and that
oil-slick floors and stored materials impeded safe access to workplace
aisles and passageways. After Trinity refused to grant OSHA permission to
inspect the facility, the agency sought an administrative inspection
warrant from a federal magistrate Judge.*fn1 In its warrant application, OSHA explained
that the employee complaint it had received met the formality requirements
of Section 8(f)(1), 29 U.S.C. § 657(f)(1), of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678, and that a special inspection
was required under the terms of that section of the Act.
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In the same warrant application, OSHA also sought conditional
authorization to conduct a full-scope ("comprehensive" or "wall-to-wall")
inspection of the Trinity worksite pursuant to an administrative plan
detailed in OSHA Instruction CPL 2.45A. Under that plan, a facility is
subject to a full-scope inspection if: (1) an employee complaint has been
filed that sets forth reasonable grounds for the Secretary of Labor to
believe that a violation or danger exists; (2) the establishment is in an
industry with a high lost workdays injury rate; (3) a complete safety
inspection of the facility has not been carried out in the current year or
in the last two fiscal years; and (4) the facility's safety records show a
lost workday injury rate at or above the national average. Trinity's
Sharonville worksite, OSHA maintained, met the first three of these four
conditions. Accordingly, the Secretary sought authorization to review
Trinity's safety and health records to determine whether the facility also
met the remaining condition: that the establishment had a lost workday
injury rate at or above the national average. If so, OSHA proposed to
conduct a full-scope inspection of the worksite.
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On February 25, the magistrate issued a warrant granting the agency
the authority to conduct a limited "special inspection" of Trinity's
Sharonville facility focusing on the allegations of the employee
complaint, a review of the facility's injury and illness records, and a
full-scope establishment inspection if the facility's lost workday injury
rate met or exceeded 4.2, the Bureau of Labor Statistics National Average
for manufacturing. Arguing in part that the Secretary's use of OSHA
Instruction CPL 2.45A to expand a complaint inspection under Section 8(f)
into a comprehensive facility inspection under Section 8(a) did not
comport with the rule established in Marshall v. Barlow's, Inc., 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978), Trinity filed a motion to
quash the warrant. On July 29, the magistrate denied the motion, but
stayed the provisions of the warrant allowing OSHA to conduct a records
review and authorizing OSHA to conduct a comprehensive inspection. On
August 5 and 8, OSHA conducted the limited-complaint inspection of
Trinity's Sharonville facility, and subsequently issued citations to
Trinity for specific alleged violations of OSHA standards.
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On October 20, the district court affirmed the magistrate's order
denying Trinity's motion to quash the warrant. On April 25, 1989, this
Court denied an application by Trinity for a stay of the district court's
order. Shortly thereafter, Trinity agreed to allow OSHA to review the
company's safety and health records, and to conduct a comprehensive
inspection if the records revealed an establishment lost workday injury
rate of 4.2 or more. After calculating a lost workday injury rate of 13.6,
OSHA safety specialists and industrial hygienists undertook two concurrent
but independent comprehensive inspections of the Sharonville facility.
Their recommendations resulted in the issuance of one set of health
citations and one set of safety citations. Trinity challenged these
citations in two separate administrative actions. Altogether, OSHA issued,
and Trinity contested, five citations that alleged numerous violations of
the Act. The penalties proposed by OSHA totaled almost
$33,000.
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On January 20, 1990, an administrative law Judge granted a motion by
the Secretary to consolidate Trinity's two actions challenging the
citations, and denied a motion by Trinity to suppress the evidence
obtained by OSHA in its full-scope investigation. In denying the latter
motion, the administrative law Judge rejected Trinity's argument that the
February 25, 1988, warrant was overly broad because it authorized a
wall-to-wall inspection based on a limited employee complaint. Following a
hearing on the merits of the contested citation items, at which Trinity
chose not to appear, the Judge upheld each of the alleged violations in
the two consolidated cases (with the exception of a single vacated subitem
and a corresponding $100 penalty reduction) and assessed the proposed
penalties.
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Thereafter, Trinity sought and obtained review by the Occupational
Safety and Health Review Commission on the sole issue of whether the
administrative law Judge erred in denying Trinity's pre-hearing motion to
suppress evidence. In affirming the administrative law Judge's ruling, the
Commission found that: (1) Trinity was targeted for an expanded,
full-scope establishment inspection pursuant to the provisions of an
administrative plan detailed in OSHA Instruction CPL 2.45A, and not
because of specific evidence of an existing violation; (2) the
administrative plan, CPL 2.45A, was derived from neutral criteria; (3)
OSHA's warrant application properly established administrative probable
cause under the Barlow's administrative plan test; (4) the Judge's denial
of Trinity's motion was not contrary to precedent of the Commission nor
those cases reviewed by courts of appeals; and (5) the warrant's records
review provision was not overly broad. Trinity continues to press its
objections before us.
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II
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Trinity raises four arguments. First, Trinity contends that
inspections of employers selected on the basis of specific evidence of
existing violations, such as employee complaints, must be limited to the
scope of the complaint, whereas inspections of employers selected on the
basis of a reasonable administrative plan may be comprehensive in nature.
Accordingly, as OSHA initially selected Trinity for inspection solely on
the basis of an employee complaint and request for special inspection,
pursuant to Section 8(f) of the Act, the warrant issued should have
limited the scope of both the physical inspection of the Sharonville
worksite and of the records review to the allegations in the complaint.
OSHA Instruction CPL 2.45A, Trinity maintains, is merely an improper
attempt to expand limited inspections into full-scope inspections.
According to Trinity, CPL 2.45A is not a reasonable administrative plan,
which would authorize a full-scope search under Section 8(a), because it
selects employers for inspection on the basis of employee complaints and
thus is not derived from neutral criteria.
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Second, Trinity argues that the exclusionary rule should be applied in
Occupational Safety and Health Review Commission proceedings. The
full-scope inspection of its facility, Trinity maintains, was conducted
pursuant to an invalid search warrant and thus violated its Fourth
Amendment rights. According to Trinity, the search was overbroad and
conducted in an unreasonable manner and thus violated Sections 8(a)(2) and
8(f) of the Act and Trinity's Fifth Amendment rights. Moreover, Trinity
contends that a reasonably well-trained OSHA compliance officer could not
have relied in objective good faith on the warrant in question. Given the
violations of Trinity's constitutional rights and the fact that the good
faith exception to the exclusionary rule does not apply, Trinity concludes
that the rule should be applied to suppress all the evidence gathered
pursuant to the full-scope inspection.
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Third, Trinity contends that even if CPL 2.45A is deemed a reasonable
administrative plan under the Supreme Court's decision in Barlow's, OSHA's
warrant application did not adequately describe the plan or how the
desired inspection of Trinity's facility fit into that plan. Finally,
Trinity argues that even if the description of the plan in the warrant at
issue in this case is deemed sufficient, the full-scope search of
Trinity's facility still violated the Fourth Amendment because the
inspection involved both safety and health components. The application for
the warrant, Trinity asserts, provided only that if the conditions of CPL
2.45A were met, the scope of the inspection would extend to the entire
establishment with respect to safety. According to Trinity, even if
otherwise valid, such a plan could not also authorize a full-scope health
inspection.
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III
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As this Court held in National Engineering & Contracting Co. v.
OSHA, 928 F.2d 762, 767 (6th Cir.
1991):
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In a case of this kind, a reviewing court's task is limited to
determining whether the Commission's factual findings are supported by
substantial evidence in the record taken as a whole, 29 U.S.C. § 660(a),
and whether its legal Conclusions are "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law," 5 U.S.C. §
706(2)(A).
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Because Trinity appeals from a denial of a motion to suppress,
moreover, "we must consider the evidence in the light most favorable to
the government." Id. at 765. Finally, we note that great deference is due
when reviewing a magistrate's determination of probable cause. United
States v. Establishment Inspection of: Jeep Corp., 836 F.2d
1026, 1028 (6th Cir. 1988).
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In considering Trinity's challenge to the scope of the February 25,
1988, warrant, we agree with Trinity's assertion that OSHA Instruction CPL
2.45A, upon which the provision of the warrant authorizing the conditional
full-scope inspection was based, does not comport with an established rule
of law. See Barlow's, 436 U.S. at 320. In Barlow's,
the Supreme Court held that warrants are required for administrative
inspections under the Act. Id. at 325. The Court also stated that probable
cause justifying the issuance of a warrant for administrative purposes may
be based either on "specific evidence of an existing violation" or "on a
showing that 'reasonable legislative or administrative standards for
conducting an . . . inspection are satisfied with respect to a particular
[establishment].'" Id. at 320. Expounding on the second basis, the Court
noted that 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 . . . would protect an
employer's Fourth Amendment rights." Id. at 321 (emphasis added). Because
administrative and legislative guidelines ensure that employers selected
for inspection pursuant to neutral administrative plans have not been
chosen simply for the purpose of harassment, courts have held that
administrative plan searches may properly extend to the entire workplace.
Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1068
(11th Cir. 1982). In the case of searches based on employee complaints,
however, such safeguards are absent. Given the "increased danger of abuse
of discretion and intrusiveness" presented by such searches, we agree with
those circuits that have explicitly recognized that "a complaint
inspection must bear an appropriate relationship to the violation alleged
in the complaint." Id. (citing cases).
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The flaw in OSHA Instruction CPL 2.45A is that it circumvents the
purpose behind the reasonable administrative plan envisioned by the
Supreme Court. Barlow's, 436 U.S. at 321. By allowing
an employee complaint to trigger an administrative plan search, OSHA
attempts to authorize a full-scope inspection of an employer in the
absence of the probable cause showing required by Barlow's for such an
inspection. See Sarasota Concrete, 693 F.2d at 1068
(inspections pursuant to employee complaints require individualized
inquiry to ensure that the target of the search was not chosen for the
purpose of harassment); Marshall v. Horn Seed Company, 647 F.2d
96, 100-101 (10th Cir. 1981) (same). In support of CPL 2.45A,
OSHA argues that an employee complaint is only one of four conditions that
must be satisfied before the Secretary may expand a limited complaint
inspection under Section 8(f) into a full-scope inspection under Section
8(a). This argument, however, ignores the primary importance placed by the
Court in Barlow's on the neutrality of the initial selection process
provided by an administrative plan. In short, no matter how objective the
other criteria of CPL 2.45A may be, the initiation of a search under the
plan hinges on the filing of an employee complaint. Thus, the full-scope
inspection authorized by the regulation cannot be the product of the kind
of reasonable administrative inspection plan proposed in Barlow's.*fn2 To the extent that OSHA Instruction CPL
2.45A allows the Secretary to conduct a full-scope inspection authorized
by a single warrant initially obtained only on the basis of an employee
complaint, therefore, the regulation is invalid.
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Having agreed with Trinity's assertion that the February 25, 1988,
warrant invalidly authorized a comprehensive physical inspection of the
Sharonville workplace, we disagree with the company's contention that the
same warrant improperly authorized OSHA to review all of Trinity's injury
and illness records, rather than just those records related to the
complaint that triggered the special inspection of the facility. First, as
a practical matter, it would be difficult to discern which of these
records are and are not "related to the complaint." Moreover, contrary to
Trinity's assertions, this Court has held only that a warrant that limits
an inspection of records to those which were directly related to the
purpose of the proposed inspection was not overbroad. Jeep Corp., 836 F.2d at 1028. This does not preclude our holding
today that, on the facts of this case, OSHA, having secured a search
warrant for a Section 8(f) limited physical inspection of the Sharonville
facility, was also authorized to review all of the injury and illness
records that Trinity, like all employers, is required to keep and make
available for inspection under the Act. In holding that the Secretary,
after receiving an employee complaint, could then subpoena records to
determine whether a facility's lost workday incidence called for broader
inspection of the workplace, the Third Circuit has noted that "requiring
that an employer produce for the Secretary's inspection records that by
law he must keep for her use is hardly equivalent to undertaking a
comprehensive plant inspection." Dole v. Trinity Industries, Inc., 904 F.2d 867, 873 (3rd Cir.), cert. denied, 498 U.S. 998, 112 L. Ed. 2d 562,
111 S. Ct. 555 (1990). Although the law in this
Circuit seems to allow OSHA to use either a warrant or an administrative
subpoena to inspect a company's injury and illness records, see McLaughlin
v. Kings Island, 849 F.2d 990, 997 (6th Cir. 1988),
we agree with the Third Circuit that limiting the scope of a physical
inspection of a worksite while also allowing review of all injury and
illness records is consistent with the goals and provisions of the Act.
See 29 U.S.C. § 651 (Occupational Safety and Health Act intended to
"assure so far as possible every working man and woman in the Nation safe
and healthful working conditions and to preserve our human
resources").
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The proper procedure in cases such as this one, in light of Barlow's
and those cases decided since, is thus for the Secretary to secure a
search warrant limited in scope to the employee complaint that triggers
the inspection. If this limited search and a review of the employer's
injury and illness records leads the Secretary to suspect that further
physical investigation of the worksite is necessary, the Secretary should
then apply for a second warrant based on these findings authorizing a
full-scope inspection.
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We turn next to the applicability of the exclusionary rule in
Occupational Safety and Health Review Commission proceedings. Initially,
we note that by reviewing an appeal from a Commission Judge's denial of a
motion to suppress evidence without commenting on the applicability of the
exclusionary rule, this Court has at least implicitly endorsed use of the
rule in such proceedings. National Eng'g, 928 F.2d at 765. In addition, the Commission itself has explicitly found
that when "the Secretary fails to meet the relaxed standard of
administrative probable cause as articulated by the [Supreme] Court in
Barlow's, the resulting inspection is invalid and [the Commission is]
required to exclude the illegally-seized evidence." Donovan v. Sarasota
Concrete Co., 9 O.S.H. Cas. (BNA) 1608, 1614 (Rev. Comm. 1981), aff'd, 693 F.2d 1061 (11th Cir. 1982). In response, the
Secretary relies on INS v. Lopez-Mendoza, 468 U.S. 1032, 1050, 82 L. Ed. 2d 778,
104 S. Ct. 3479 (1984), in which the Supreme Court
found that the likely costs of excluding unlawfully seized evidence in
civil deportation hearings outweighed the social benefits, and thus that
the exclusionary rule need not apply in such deportation proceedings.
Contending that the costs of applying the exclusionary rule in Commission
proceedings would likewise consistently outweigh the benefits, the
Secretary urges this Court to hold that the exclusionary rule is
inapplicable in all OSHA enforcement proceedings. We are not
persuaded.
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The Fifth Circuit specifically has addressed the effect of
Lopez-Mendoza on the applicability, and proper scope, of the exclusionary
rule in Commission proceedings. Smith Steel Casting Co. v. Brock, 800 F.2d 1329, 1334 (5th Cir. 1986). The court's
Smith Steel opinion succinctly resolves this issue:
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Based on Justice O'Conner's [sic] reasoning [in Lopez-Mendoza ], we do
not believe that the exclusionary rule should be invoked to prevent the
Secretary of Labor from ordering correction of OSHA violations involving
unsafe or unhealthy working conditions, even though the evidence
supporting the order was improperly obtained. However, illegally obtained
evidence must be excluded for purposes of "punishing the crime," i.e. the
exclusionary rule should be applied for purposes of assessing penalties
against an employer after the fact for OSHA violations, unless it can be
shown that the good faith exception applies to the Secretary's actions.
Therefore, we hold pursuant to Lopez-Mendoza that the exclusionary rule
does not extend to OSHA enforcement actions for purposes of correcting
violations of occupational safety and health standards. Further, again
under Justice O'Conner's [sic] reasoning in Lopez-Mendoza, we hold that
the exclusionary rule applies where the object is to assess penalties
against the employer for past violations of OSHA regulations, unless,
under the reasoning announced in [ United States v. ] Leon [,
468 U.S. 897 (1984)], the good faith exception can be
applied to the Secretary's actions in obtaining the tainted
evidence.
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Smith Steel, 800 F.2d at 1334. We find this
Conclusion to be well-reasoned and persuasive, and adopt it as this
Circuit's rule regarding the applicability of the exclusionary rule to
OSHA proceedings.
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As OSHA's object in introducing the evidence gathered in its
full-scope inspection of the Sharonville facility was to assess penalties
against Trinity for past violations, the exclusionary rule does have
potential application in this case. OSHA's warrant application, however,
was detailed and factually accurate. Moreover, before conducting a
full-scope inspection of the facility, the Secretary obtained decisions
from both the magistrate and the district court upholding the warrant, and
a decision from this Court denying Trinity's application for a stay. We
find, therefore, that the Secretary relied in objectively reasonable good
faith on a facially valid warrant in conducting the full-scope inspection
of the Sharonville facility, and thus the good faith exception announced
in Leon to the exclusionary rule applies. See Leon, 468 U.S. at
918-920 (evidence need not be suppressed when obtained by
police who act in good faith reliance on a facially valid warrant that is
later found to lack probable cause because suppression in this situation
would not further the deterrent function of the exclusionary rule).
Accordingly, the Commission did not err in affirming the administrative
law Judge's decision to deny Trinity's motion to suppress the evidence
gathered by OSHA.
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Trinity's third contention is that the Secretary did not adequately
describe OSHA Instruction CPL 2.45A in the warrant application. Despite
our holding that CPL 2.45A is not a reasonable administrative plan under
Barlow's, we conclude that the Secretary sufficiently described CPL 2.45A,
and how the desired inspection of Trinity's facility fit into that plan,
so as not to upset our finding that the Secretary acted in objectively
reasonable good faith in securing and executing the February 25, 1988,
warrant.
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Trinity's final contention is that OSHA's full-scope search of the
Sharonville facility, which was conducted pursuant to a warrant that only
authorized a comprehensive safety inspection, involved both safety and
health components, and thus violated Trinity's Fourth Amendment rights. We
agree that probable cause for a full-scope safety inspection is not the
equivalent of probable cause for a full-scope health inspection, and that
warrants should specify the precise nature of the Secretary's proposed
search. Cf. Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 7 (1st Cir. 1982) (suggesting that a warrant obtained
pursuant to program confined to safety inspections that nonetheless
authorized safety and health inspections could be overbroad). Again,
however, we find that, on the facts of this case, OSHA executed its
full-scope inspection of the Sharonville facility in a manner that the
agency believed in objectively reasonable good faith to be authorized by
the facially valid warrant it had obtained.
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IV
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For the foregoing reasons, the decision of the Occupational Safety and
Health Review Commission is affirmed.
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Disposition
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Affirmed
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ALICE M. BATCHELDER, Circuit Judge, Concurring. I agree completely
with the majority opinion in this case, and I write separately simply to
emphasize (1) that the court has invalidated OSHA Instruction CPL 2.45A
because it does not comport with the requirements of Marshall v. Barlow's,
Inc., (2) why it is necessary for us to hold CPL 2.45A invalid, and (3)
what this means for future OSHA inspections and searches.
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The relevant language from Marshall v. Barlow's, Inc., 436
U.S. 307, 56 L. Ed. 2d 305, 98
S. Ct. 1816 (1978), is as follows:
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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 (1967)]. 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.
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Barlow's, 436 U.S. at 320-21 (footnote omitted).
The Court also wrote, "A warrant . . . would provide assurances from a
neutral officer that the inspection is reasonable under the Constitution,
is authorized by statute, and is pursuant to an administrative plan
containing specific neutral criteria." Id. at 323.
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We have invalidated CPL 2.45A because it uses an employee's complaint
as a component to trigger a full-scope search of the workplace.*fn3 This element involves human action and thus
brings the potential to add a subjective input to the calculus. Trinity
argues, and we agree, that the addition of this element destroys the
neutrality of the administrative inspection plan and violates Barlow's;
when Barlow's discussed permissible administrative plans, it described a
neutral plan as one that relied upon either random selection or selection
by relevant statistics that have no individual human component for the
reason that searches flowing from these types of plans could not be the
product of an agency's arbitrary decision.
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OSHA argues that the employee-complaint element is unobjectionable
because it does not vest in the agency any discretion that might be abused
or arbitrarily exercised because all OSHA does when a complaint comes in
is verify, pursuant to 29 U.S.C. § 657(f)(1), that the complaint furnishes
reasonable grounds to believe that the violation exists. OSHA contends
that because it cannot file complaints on its own or otherwise instigate
their filing, it therefore cannot produce the harms that Barlow's sought
to prevent.
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The OSHRC agreed with OSHA's position. In upholding the Secretary's
administrative plan and the search conducted under it, the OSHRC quoted
with approval the following passage from the magistrate Judge's
opinion:
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In order for the plan to establish probable cause, it must provide for
inspection on the basis of neutral criteria, thus ensuring that OSHA
officials do not have unbridled discretion to target an employer for
improper reasons. Neutrality and discretion are integrally linked; if the
evidence submitted in the application shows the plan is based on the type
of criteria that does not permit an arbitrary decision to conduct the
inspection, then we may find the plan is derived from neutral
criteria.
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Secretary of Labor v. Trinity Indus., Inc., Nos. 89-2168 &
89-2169, slip op. at 20 (OSHRC Aug. 18, 1992) (citations omitted). The
OSHRC went on to reach the same decision as did the magistrate Judge and
the district court, namely, that because the employee complaint element
did not vest in OSHA any discretion, it was a neutral
criterion.
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We reject this view. As the panel notes, Barlow's requires that
Trinity have been "chosen for an OSHA search on the basis of a general
administrative plan for the enforcement of the Act derived from neutral
sources." 436 U.S. at 321 (emphasis added). The issue
then is whether a policy that uses an employee complaint as one of four
factors that trigger an inspection is a plan "derived from neutral
sources." Although I concede that CPL 2.45A has no ability to create the
potential for one of the harms that the Barlow's Court sought to avoid,
namely, the "unbridled discretion [of] executive and administrative
officers, particularly those in the field, as to when to search and whom
to search," Barlow's, 436 U.S. at 323, a search has
the potential to be just as arbitrary (and possibly more so) when the
triggering factor is an employee complaint. The OSHRC held that because
the complaint came from outside OSHA, the policy did not violate "the
basic purpose of the Fourth Amendment, which is 'to safeguard the privacy
and security of individuals against arbitrary invasions by government
officials. '" OSHRC decision at 15 (quoting Barlow's, 436 U.S.
at 312) (emphasis added by OSHRC). But, the invasion is no less
arbitrary simply because the OSHA official himself cannot inject his own
arbitrariness into the process. If the employee who files the complaint
intends to harass or retaliate against his employer, the full-scope
investigation by a government official has been prompted not by neutral
factors, but by a person with an improper motive. Unless it can be shown
that OSHA officials act from improper motives more often than employees,
the harm to be avoided is exactly the same whether the source is an OSHA
official or an employee. And the harm would, in fact, be greater if it
could be shown that employees more often than OSHA officials act
vindictively or unjustifiably.
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OSHA attempts to counter this argument by saying that it screens
employee complaints to determine whether there are "reasonable grounds to
believe that such violation or danger exists," 29 U.S.C. § 657(f)(1); CPL
2.45A, ch. IX, sec. (A)(2)(d), before it seeks a search warrant. However,
OSHA must concede that it sometimes is difficult to identify from the face
of the complaint whether it is a justifiable or reasonable complaint. And
it is at this point that OSHA is vested with some discretion in deciding
which complaints provide "reasonable grounds to believe . . . ." This risk
of unjustified and overbroad searches based on an employee's complaint is
the very reason that searches must be limited to the area about which the
employee complains.
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It may be true that "neutrality and discretion are integrally linked"
as the magistrate and the OSHRC have said, but it is equally true that
neutrality and objectivity are integrally linked. Objectivity may take the
form of a neutral decisionmaker or adjudicator, but in the absence of such
a person, objectivity often requires that factors be limited to those that
are not subject to human manipulation. Because the employee-complaint
element in CPL 2.45A is a subjective element, we hold that this
instruction, which permits full-blown inspections triggered in part by an
employee complaint, is unconstitutional under Barlow's because it violates
the company's Fourth Amendment right to be free from unreasonable searches
and the right to have the scope of the search bear some relation to the
evidence sought.
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| [55] |
Finally then, I emphasize that although we ultimately rule that the
Secretary was permitted to use the results of the inspection in this case,
since we have held invalid Instruction CPL 2.45A, our decision
prospectively will result in the suppression of any evidence obtained in a
search pursuant to CPL 2.45A (or similar policy), for OSHA investigators
in the Sixth Circuit may no longer rely in good faith on a warrant that is
issued contrary to the law of this circuit.
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Opinion Footnotes |
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| [56] |
*fn1 Section 8 of the Occupational Safety and
Health Act of 1970 generally empowers the Secretary of Labor to inspect
workplaces. 29 U.S.C. § 657. Because the Secretary of Labor's
responsibilities under the Act have been delegated to the Assistant
Secretary for Occupational Safety and Health--who heads the Occupational
Safety and Health Administration--we employ the terms "Secretary" and
"OSHA" interchangeably for the purposes of this opinion.
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| [57] |
*fn2 We might view the full-scope search of
Trinity's Sharonville facility differently if the site had been due for a
programmed, wall-to-wall inspection even in the absence of an employee
complaint, or if the complaint alleged a hazard that permeated the entire
workplace, but neither of these scenarios is the case in the instant
matter. See In the Matter of Inspection of the Workplace Located at 526
Catalan Street, 741 F.2d 172, 177 (8th Cir. 1984)
(upholding a comprehensive search when, among other factors, OSHA would
have carried out a programmed search within several months even if an
employee complaint had never been filed); Hern Iron Works, Inc. v.
Donovan, 670 F.2d 838, 841 (9th Cir.) (involving a
violation pertaining to the company's ventilation system), cert. denied, 459 U.S. 830, 74 L. Ed. 2d 69, 103 S. Ct. 69 (1982).
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Concurrence Footnotes |
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