ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-1189).
Adams, Hunter and Weis, Circuit Judges.
During the consideration of the bills which ultimately became the Occupational Safety and Health Act of 1970 (OSHA), the intention to make the maximum use of the commerce power was repeatedly expressed by various Congressmen.*fn1 The Act is by its terms applicable to every "person engaged in business affecting commerce who has employees."*fn2 In this proceeding, a cemetery company seeks some definition of the scope of the phrase "affecting commerce." The issue is raised by way of an appeal from the district court's denial of a motion to quash a civil search warrant authorizing an inspection of the cemetery's business premises.
Restland Memorial Park, a cemetery, is operated by a corporation whose shares are owned by a husband and wife. These two shareholders and their son comprise three of the four employees of the company. The cemetery is located in Pennsylvania; a very high portion of those buried in it were Pennsylvania residents; its supplies and equipment are purchased from Pennsylvania dealers. The Secretary asserts that the caskets used for the burials in Restland have often been imported into Pennsylvania, that each year several persons who died outside of Pennsylvania are buried there, and that Restland's equipment is operated on public highways.
The operations of the cemetery require the use of a backhoe, mowing machinery, and two trucks. In view of the safety hazards created by such equipment, principally amputations that result from improperly guarded mowers, the agency has assumed the responsibility of inspecting cemeteries, golf courses, and similar establishments. At Restland, however, OSHA's representative was ordered off the premises. The Secretary then sought, and obtained, an inspection warrant. Despite this, his representative was again refused entry.
Before the Secretary could obtain enforcement of his warrant from the district court, Restland petitioned that court to quash the warrant, contending that the operations of the cemetery do not bring it within the jurisdiction of the agency under the interstate commerce clause and the provisions of the Act. The district court denied the petition to quash the warrant and ordered the officials and employees of the corporation to permit an authorized safety officer to enter the premises and conduct a reasonable inspection.
Restland has appealed the decision of the district court. We have jurisdiction under 28 U.S.C. § 1291.*fn3
Pursuant to his duties under the Act, the Secretary is authorized to enter any place of employment "affecting commerce," and to inspect that place, its structures, and equipment for violations of OSHA standards.*fn4 Whether the agency is authorized to enter Restland Memorial Park depends on whether the cemetery is an employer "affecting commerce." Restland seeks a determination of that issue prior to permitting entry by the Secretary or his representative. This Court, however, is precluded from considering that question at this stage of the proceedings.
The Occupational Safety and Health Act has created a central forum for adjudications in the Occupational Safety and Health Review Commission,*fn5 which is authorized to pass on all factual and statutory defenses available against the enforcement actions of the Secretary.*fn6
The Review Commission would appear competent to consider the scope of the Act's coverage. If a citation is issued, and if the employer chooses to contest the citation, the Secretary is obliged to serve a formal complaint setting forth, inter alia, the basis for jurisdiction.*fn7 The Review Commission must then decide whether the agency has exceeded its jurisdiction by attempting to enforce the Act against an employer who does not affect commerce -- an employer ...