ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 79-0719)
Before Seitz, Chief Judge, and Gibbons and Rosenn, Circuit Judges.
The Secretary of Labor appeals from an order of the district court refusing to hold North American Car Co. (the employer) in contempt for failure to comply with an inspection warrant issued pursuant to § 8(f) of the Occupational Safety & Health Act of 1970, 29 U.S.C. § 657(f) (1976) (the Act).
The employer operates a railroad car repair facility in Sayre, Pennsylvania. The Sayre plant covers an area of approximately 70 acres, about 40 of which are used to store cars awaiting maintenance, and the remainder are actual service areas. In general, cars are taken either to the F.R.A. area (short for Federal Railroad Administration) for lighter work or to the steelyard for heavier work. Work is done either outside or in separate buildings. For example, there is a steamrack, an outside area the size of four railroad cars where tankers are cleaned prior to maintenance. A variety of specialized tasks are performed in the separate buildings, including painting, wood fabrication, air brake repair, and so forth.
In early April of 1979, the Occupational Safety & Health Administration (OSHA) received a complaint from an employee at the Sayre plant who worked in the steelyard. The alleged violations of the Act covered three basic physical areas of the plant: the steamrack, an overhead crane that ran between some of the buildings, and one of the paint shops.*fn1
After the employer refused entry to OSHA inspectors, they secured a warrant from a magistrate. The application merely recited the employee complaint. There is no allegation that the employer had ever been found in violation of the Act in the past. The warrant authorized the inspectors "to enter the (employer's) premises . . . to inspect . . . the workplace or environment where work is performed by employees of the employer and all pertinent conditions, structures, machines, apparatus, devices, equipment, materials, and all other things therein (including records, files, papers, processes, controls, and facilities)."
The inspectors returned to the plant and conducted an inspection for three days. After examining safety records, they inspected the wood fabrication shop, a tool storage area, and the air brake shop. They checked both the wiring and the noise and air quality levels in some of these areas. Due to inclement weather, the inspectors did not look at the crane or the steamrack violations listed in the complaint. Some inspection activity did take place in the paint shop.
After the third day, the employer refused to permit the inspection to continue. The Secretary then made a motion in the district court to hold the employer in contempt, arguing that an inspection of the entire plant (known as a "wall-to-wall" inspection) was proper. After a hearing, the district court concluded that the warrant and the inspection as conducted were overbroad in that they were not limited to the physical areas specified in the employee complaint. See Marshall v. North American Car Co., 476 F. Supp. 698 (M.D. Pa. 1979). It proceeded to enter an order quashing the warrant and dismissing the petition for contempt. This appeal followed.
As our recitation of the facts indicates, the scope of the inspection exceeded the areas covered by the complaint. On appeal, the Secretary's sole argument is that such a wall-to-wall search is permissible in any case where OSHA has received an employee complaint. Although the parties have spent considerable time arguing constitutional issues, we must first turn to the statute because if it provides a basis for affirming the district court we need not reach the constitutional questions presented.
The Act authorizes two types of inspections: § 8(a) inspections, which usually are done pursuant to some sort of a general administrative plan, and § 8(f) inspections, which are the result of an employee complaint. Only § 8(f)(1) is involved here, and it provides:
Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. (The second sentence then specifies complaint procedures.) If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines ...