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In re Establish Inspection of Metal Bank of America Inc.

decided: February 17, 1983.

IN THE MATTER OF ESTABLISH INSPECTION OF THE METAL BANK OF AMERICA, INC. THE METAL BANK OF AMERICA, APPELLANT


Appeal from the United States District Court for the Eastern District of Pennsylvania.

Adams, Hunter and Becker, Circuit Judges.

Author: Hunter

Opinion OF THE COURT

HUNTER, Circuit Judge.

The Occupational Safety and Health Administration ("OSHA") obtained a warrant to inspect the premises of appellant Metal Bank of America, Inc. ("Metal Bank"). The United States District Court for the Eastern District of Pennsylvania denied Metal Bank's motion to quash the warrant and held it in civil contempt for impeding the warrant's execution. Donovan v. Metal Bank of America, Inc., 516 F. Supp. 674 (E.D. Pa. 1981). Metal Bank appealed. After argument, a remand to the district court and additional briefing, Metal Bank now renews its attack on the validity of the inspection. We do not reach the merits of Metal Bank's arguments, however, because one of its contentions is moot and the remainder must be exhausted before the Occupational Safety and Health Review Commission (the "Review Commission").

I. FACTS AND PROCEEDINGS BELOW

Metal Bank operates a scrap metal salvaging plant in Philadelphia. After receiving an anonymous telephone complaint from an individual claiming to be a Metal Bank employee, OSHA compliance officers went to the plant on December 11, 1979, and requested permission to conduct an inspection of the premises. Counsel for Metal Bank refused to consent to the search, and the compliance officers departed.

On April 28, 1980, the OSHA Area Director applied for a warrant to inspect the Metal Bank facility. In the warrant application the Area Director stated that OSHA had received the "employee's" telephone complaint which alleged, inter alia, that Metal Bank employees were being exposed to lead and copper fumes. The Area Director also stated that OSHA had received a phone call from someone claiming to be a physician who said that he had examined a Metal Bank employee for lead poisoning. The Area Director finally asserted that a follow-up inspection was necessary to determine whether Metal Bank had corrected safety violations discovered in an OSHA inspection conducted between November 29, 1978, and January 10, 1979.

An adversary hearing was conducted before a United States Magistrate.*fn1 At the hearing the Area Director added that in early 1978 a compliance officer had attempted to inspect Metal Bank's lead and copper processes, found that they were not operating, and recommended that OSHA inspect them when they were operating. On May 7, 1980, the magistrate issued an inspection warrant pursuant to 29 U.S.C. ยง 657(a) (1976). The warrant authorized the inspection of

those areas of the workplace covered by the employee complaint, those areas involved in the [violations found in the November 1978-January 1979 search], and any area in the establishment in which there is occupational exposure to lead and copper.

App. at 12. The warrant also authorized private interviews with employees and the inspection of all pertinent records, files and papers.

Pursuant to the warrant OSHA compliance officers entered the workplace over Metal Bank's protests on May 9, 12, and 13, 1980. Metal Bank admits that it refused to allow either private employee interviews on its premises or inspection of showers and other facilities for employees supposedly exposed to lead. Metal Bank also allegedly denied some of OSHA's requests for documents. OSHA then terminated the inspection.

On February 23, 1981, OSHA asked the district court to hold Metal Bank in civil contempt for obstructing the execution of the warrant. OSHA requested that the court issue an order compelling Metal Bank to allow private employee interviews, inspection of all pertinent records, and entry into all areas covered by the warrant. On March 6, 1981, Metal Bank moved to quash the warrant, alleging that the warrant was not supported by probable cause and was overbroad in scope. The district court held a hearing in which Metal Bank challenged the Secretary of Labor's authority to conduct private employee interviews during working hours and to obtain records by warrant.*fn2

On June 18, 1981, the district court filed an order denying Metal Bank's motion to quash the warrant and holding Metal Bank in civil contempt. 516 F. Supp. 674 (E.D. Pa. 1981). On June 25, 1981, Metal Bank filed a notice of appeal and requested that the district court issue a stay pending appeal. We dismissed the appeal as premature. On September 15, 1981, the district court entered an order requiring Metal Bank to purge itself of the contempt by permitting OSHA to inspect within ten ...


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