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DONOVAN v. METAL BANK OF AMERICA

June 17, 1981

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Petitioner,
v.
The METAL BANK OF AMERICA, INC., Defendant-Respondent. In the Matter of Establishment Inspection of The METAL BANK OF AMERICA, INC.



The opinion of the court was delivered by: LORD, III

I. Introduction

The Secretary of Labor (Secretary) seeks an order holding the Metal Bank of America, Inc. (Metal Bank) in civil contempt of court for Metal Bank's failure to comply with a search warrant issued by Magistrate Edwin E. Naythons. Metal Bank has moved to quash the warrant. For the reasons which follow, I will deny Metal Bank's motion to quash and will hold Metal Bank in civil contempt of court.

 II. Defendant's Motion to Quash Warrant

 On April 20, 1980, Walter Wilson, Area Director of the Philadelphia Area Office of the Occupational Safety and Health Administration (OSHA) applied to Magistrate Naythons for a warrant to inspect Metal Bank for occupational health and safety violations. Magistrate Naythons conducted an adversary hearing *fn1" on the application on May 6 and May 7, 1980. Counsel for Metal Bank appeared and cross examined witnesses presented by the Secretary.

 Magistrate Naythons found that the Secretary had shown "that reasonable legislative and administrative standards (had) been satisfied with respect to the selection of (Metal Bank) for inspection," under the Occupational Safety and Health Act (the Act), 29 U.S.C. § 651 et seq., and "reasonable grounds to believe that hazardous and unhealthful working conditions exist at (Metal Bank)." In Re Metal Bank of America, Inc., Misc. No. 80-0353 (E.D.Pa., May 7, 1980) (order granting warrant for inspection). He therefore signed the warrant authorizing designated OSHA representatives to enter Metal Bank's premises

 Id. The warrant authorized the inspection to begin within five working days and to continue for up to ten working days.

 Magistrate Naythons considered both the warrant application and the evidence presented at the warrant hearing *fn2" in finding the warrant justified. Two reasons for the inspection were set forth in the warrant application. OSHA cited Metal Bank for safety violations on January 26, 1979, as a result of an inspection conducted between November 29, 1978 and January 10, 1979. OSHA sought this warrant to conduct an inspection to determine if those violations had been corrected. In addition, OSHA received two informal telephone complaints charging unsafe conditions at Metal Bank. On November 8, 1979, an anonymous caller, identifying himself as a Metal Bank employee, charged that Metal Bank employees were being exposed to lead and copper fumes without adequate ventilation. On February 1, 1980, a person identifying himself as a physician of a Metal Bank employee telephoned OSHA. The physician stated that he had treated the employee for lead poisoning, and that the employee had told him that many other Metal Bank employees had sought such treatment from other doctors. The physician did not give his name to OSHA.

 At the warrant hearing, Area Director Wilson testified that his decision to inspect Metal Bank was also based on the 1977 health referrals of safety staff inspectors who had previously inspected Metal Bank, and on OSHA's experience in enforcing the revised lead standard, 29 C.F.R. § 1910.1025, et seq.

 Metal Bank argues that the warrant was invalid because there was no probable cause, in the criminal law sense, for its issuance. The warrant clause of the fourth amendment applies to commercial buildings. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978). A warrant is required for OSHA to inspect without the consent of an employer. The warrant, however, need not be supported by the probable cause required in criminal cases. Id. at 320, 98 S. Ct. at 1824. Barlow's dealt explicitly with general administrative inspections under section 657(a) of the Act, but its holding applies to warrants to investigate specific complaints as well. Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir. 1980); B.P. Oil, Inc. v. Marshall, 509 F. Supp. 802 (E.D.Pa.1981).

 The criminal standard is not imposed even though the Act provides for some criminal sanctions. See, e.g., 29 U.S.C. § 666(e)-(g). Metal Bank raises the specter of criminal sanctions here as a basis for its argument that criminal probable cause must support this warrant. But OSHA has petitioned for civil, not criminal contempt. The stated purpose of the inspection was civil, not criminal. If OSHA attempts to use evidence gathered under this administrative warrant in a criminal proceeding against Metal Bank, Metal Bank then can move to suppress the evidence for want of probable cause in the criminal sense. See Marshall v. Rochester Shoe Tree Co., Misc. No. 306 (N.D.N.Y. Apr. 4, 1981).

 The parties dispute whether the basis of the warrant is a general administrative plan under section 657(a) or allegations of specific existing violations. OSHA cites both as grounds for the inspection. Ordinarily the distinction is important because it determines the appropriate scope of the search. Marshall v. North American Car Co., 626 F.2d 320 (3d Cir. 1980). Because the scope of this warrant is reasonably related to the allegations of specific violations, id., I need not determine if section 657(a) properly supported its issuance.

 Magistrate Naythons found reasonable grounds to believe that hazardous and unhealthful working conditions exist at Metal Bank. Thus, issuance of the inspection warrant was reasonable unless Magistrate Naythons' factual conclusion was clearly erroneous or contrary to law. See B.P. Oil, supra, 509 F. Supp. at 807. The evidence the affirmed citations, the referrals, and the complaints sufficiently support his conclusion.

 The Seventh Circuit has found an inspection warrant valid where it was requested to follow up on an earlier inspection which revealed OSHA violations. Pelton Casteel, Inc. v. Marshall, 588 F.2d 1182 (7th Cir. 1978). In Pelton, probable cause for a follow up inspection was found even though the employer had moved the site of the work place since the time of the earlier inspection.

 Magistrate Naythons did not err in considering the informal complaints of the anonymous employee and physician. Metal Bank incorrectly argues that these complaints could not be considered because they do not meet the criteria of formal complaints under section 657(f) of the Act. Section 657(f) sets forth criteria of complaints which require action by OSHA. The section does not prohibit OSHA from investigating less formal complaints where a reasonable basis for an inspection is otherwise ...


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