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MARSHALL v. NORTH AMERICAN CAR CO.

July 25, 1979

RAY MARSHALL, SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR, Plaintiff
v.
NORTH AMERICAN CAR COMPANY, Defendant; IN THE MATTER OF: ESTABLISHMENT INSPECTION OF NORTH AMERICAN CAR COMPANY, N. THOMAS AVENUE, SAYRE, PENNSYLVANIA



The opinion of the court was delivered by: MUIR

I. Introduction.

The above action was instituted under Miscellaneous No. 79-81 by the filing of an application for an inspection warrant pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., by Leo Carey, the area director of the Wilkes-Barre Office of the Occupational Safety and Health Administration (OSHA), on May 17, 1979. That application sought a warrant for the inspection of a railroad car repair facility owned and operated by North American Car Company in Sayre, Pennsylvania. On the same day, a United States Magistrate to whom the application for inspection warrant was made issued such a warrant permitting an inspection of the North American Car facility and directing that a return be made within 30 days showing that the inspection had been completed. An inspection was commenced at the Sayre plant by OSHA Health and Safety Compliance Officers but prior to the completion by the inspectors of what they believed to be the inspection authorized by the warrant, employees of North American Car directed them not to return to North American Car's facility. Thereafter, on June 8, 1979, a petition for an issuance of a rule to show cause why North American Car should not be held in civil contempt was filed in this Court. On June 11, 1979, this Court issued a rule to show cause directing that North American Car appear on June 28, 1979 at which time the issue of whether it should be held in contempt of court would be heard. Prior to the hearing, both parties filed pre-trial memoranda. On June 28, 1979, at 4:12 P.M. a hearing commenced. That hearing was adjourned at 10:00 P.M. on June 28 and resumed the following day with additional testimony being taken prior to the start of another case at 10:00 A.M. and continuing for a brief period during the lunch hour. The following represent this Court's findings of fact, discussion, and conclusions of law with respect to the question of whether North American Car should be held in contempt for refusing to comply with an administrative search warrant.

 II. Findings of Fact.

 1. The petitioner in the above-captioned action is Ray Marshall, the Secretary of Labor.

 3. North American Car maintains offices and a railroad car repair facility in Sayre, Bradford County, Pennsylvania, which is within the Middle District of Pennsylvania.

 4. On May 9, 1979, following receipt of an employee complaint from Ronald J. Haney, a worker at the Sayre Plant, representatives of OSHA appeared at the North American Car facility and requested permission to conduct an inspection.

 5. The OSHA officers were told at that time that they could conduct an inspection without a warrant if they limited the scope of their search to those matters set forth in the employee complaint which OSHA had received.

 6. Representatives of North American Car requested permission to see the employee complaint at that time but it was not released to them.

 7. On May 17, 1979, the director of the Wilkes-Barre area office of OSHA applied for and was granted an inspection warrant from the United States Magistrate in Wilkes-Barre, Pennsylvania, relating to the North American Car plant.

 8. OSHA representatives, including Robert J. Farronato, a safety compliance officer, returned to North American Car on May 21, 1979 and served a copy of the search warrant on Messrs. Sweeney and Haggerty, representatives of North American Car.

 9. The OSHA compliance officers were informed on May 21, 1979 that they could enter the premises for purposes of conducting a search but that they would not be permitted to photograph North American Car employees without the consent of such employees although the search warrant authorizes the taking of photographs of employees during the course of the search.

 10. Mr. Farronato deemed North American Car's actions to be a refusal to honor the search warrant and he left the premises.

 11. Mr. Farronato and other compliance officers returned to North American Car on May 24, 1979 after having been informed by their director that an inspection pursuant to the warrant would be permitted.

 12. On May 24, 1979, the inspectors were admitted to the North American Car plant in Sayre and, following such admission, a copy of Mr. Haney's complaint ...


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