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MARSHALL v. WEYERHAEUSER CO.

September 7, 1978

Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
WEYERHAEUSER COMPANY, a corporation, Defendant



The opinion of the court was delivered by: BROTMAN

I. Procedural History

This action is before the court on application of plaintiff Ray Marshall, Secretary of Labor (hereinafter Secretary), United States Department of Labor, for a search warrant requiring defendant Weyerhaeuser Company of Tacoma, Washington, and any of its officers or agents to permit entry to and inspection of its corrugated box manufacturing plant in Barrington, New Jersey. The warrant is sought pursuant to the Occupational Safety and Health Act of 1970 (hereinafter the Act), 29 U.S.C. § 651 Et seq., specifically section 657(a), which provides as follows:

 
In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized
 
(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
 
(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

 II. Preliminary Considerations

 The court shall deal summarily with many of the contentions of the defendant. *fn2" Defendant first contends that this court is without jurisdiction to entertain this action because, under 28 U.S.C. §§ 1337 and 1345, there is no federal statute which expressly grants civil action authority to the Secretary of Labor in this instance. Defendant similarly argues that the Secretary of Labor is not the real party in interest under Fed.R.Civ.P. 17(a). While it is not completely clear from the face of the statute what rights were granted to the Secretary by Congress in enacting the Act, the Supreme Court in Barlow's concluded that § 657 and the accompanying regulations gave the Secretary the right to proceed in federal court to enforce his prerogative to enter and inspect business premises. See Barlow's, supra at 1823 n.12. Jurisdiction is therefore proper under 28 U.S.C. §§ 1345 and 1337 and the Secretary is the real party in interest within the meaning of Rule 17. See Reynolds Metals Co. v. Secretary of Labor, 442 F. Supp. 195 (W.D.Va.1977); Brennan v. Buckeye Industries, Inc., 374 F. Supp. 1350, 1352-53 (S.D.Ga.1974). The defendant also challenges the constitutionality of the inspection procedures employed pursuant to the Act. While this issue was certainly not free from doubt at the time of the hearing, Compare Buckeye Industries, supra, with Brennan v. Gibson's Products of Plano, Inc., 407 F. Supp. 154 (E.D.Tex.1976), it has been resolved in favor of the statute's constitutionality. Although the holding in Barlow's was limited to a declaration that the Act was unconstitutional insofar as it purported to authorize inspections without a warrant or its equivalent, See 98 S. Ct. at 1827, it is plain that inspections pursuant to § 657 are authorized once probable cause requirements are met. Id. at 1827 n.23.

 III. Administrative Probable Cause

 With the constitutionality of the Act no longer open to question, the court's attention must focus on the probable cause issue, specifically upon whether the procedures which formed the basis of the August 12, 1977 inspection attempt pass constitutional muster.

 A. The Facts Surrounding the Attempted Search

 The affidavit of Compliance Safety and Health Officer William Albano, which was the sole evidentiary material filed in support of the Order to Show Cause, provides the starting point of the court's analysis. Albano indicated therein that on the morning of August 12, 1977 he attempted to enter the Weyerhaeuser corrugated box plant in Barrington, New Jersey, but was rebuffed by several Weyerhaeuser officials. In paragraph three of the affidavit, Albano Indicates:

 
I arrived at the above noted workplace in order to inspect (sic) whether or not there were violations of the Occupational Safety and Health Act of 1970 and the regulations and standards promulgated thereunder. Specifically, I sought to determine if any violations existed including any similar to those found on a prior inspection of January 11, 1974 for which a citation had been issued and corrections undertaken. (A copy is attached hereto as Exhibit 1). Moreover, the Weyerhaeuser Company's Standard Industrial Classification is 2653 which means that it is engaged in the manufacture of corrugated boxes and which is associated with (a) U.S. Department of Labor, Bureau of Labor Statistics occupational injury industrial rate of 19.1 indicating a high hazard industry.

 Exhibit 1, referred to in Albano's affidavit, is a notice of citation which outlines the various violations found during the inspection of January 11, 1974. Also included is a sheet outlining the proposed penalties for these various violations.

 At the hearing on December 2, plaintiff's counsel summarized the various reasons why an administrative search warrant should be issued under all the circumstances: (1) placement on the "Worst-First" list (Transcript at 7 (hereinafter Tr.)); (2) previous violations occurring in January 1974 at the Barrington facility (Tr. 8); (3) a three year time span between inspections (Tr. 109); (4) classificatory changes in the 1974 Barrington facility violations (Tr. 8); and (5) previous health violations at a Weyerhaeuser-owned truckstop in Cherry Hill, New Jersey. (Tr. 26).

 Plaintiff's primary witness at the hearing was Harry D. Allendorf, Area Director for the Camden office of the Occupational Safety and Health Administration (hereinafter OSHA), who is in charge of managing the inspection program within southern New Jersey. *fn3" Allendorf first attempted to supplement the information which was provided in the affidavit of Officer Albano. He described, in order of priority, four types of inspections undertaken by OSHA: (1) emergency situations arising from employee fatalities or other disasters; (2) employee complaints; (3) National Emphasis Program inspections; and (4) general schedule inspections. The Weyerhaeuser visit was classified as a general schedule inspection based upon OSHA's Inspection Planning Guide (hereinafter IPG). (Tr. 27). The IPG is based upon a computer printout which ranks various commercial establishments according to a statistic known as the hazard rate. The hazard rate is arrived at by relating the injury rate *fn4" to the average number of employees per establishment in a particular standard industrial classification (hereinafter SIC). Essentially, the hazard rate is the rate of injury per average establishment within a given SIC. The IPG groups commercial establishments by SIC and ranks them according to their hazard rate. Each county in the state is analyzed with the most hazardous types of industries listed first. Not every establishment is listed on the IPG. Only those industries and establishments considered relatively hazardous appear; thus the nickname "Worst-First" has been given to the IPG-based inspection program. The corrugated box industry, of which Weyerhaeuser's plant is a part, was ranked 87th out of 141 high hazard industries without southern New Jersey. (Tr. 7).

 Area Director Allendorf then attempted to explain the reasons why Weyerhaeuser, as opposed to other IPG-listed establishments, was chosen for inspection by his office. The success of the plaintiff in attempting to fill this void left unanswered in Albano's affidavit was only partial, as the following colloquy between the witness and the court illustrates:

 
THE COURT: Why in the first place did you pick Weyerhaeuser out of a hat? All of a sudden you are going along in a normal course of business, how did Weyerhaeuser's name come to you?
 
THE WITNESS: Weyerhaeuser came from our MIS, not the MIS, it's on our Inspection Planning Guide, which lists all the establishments which we consider to be in the high hazard industry.
 
THE COURT: Why did you pick Weyerhaeuser out of were there other corrugated ...

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