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In re Establishment Inspection of Kulp Foundry Inc.

decided: October 28, 1982.

IN THE MATTER OF ESTABLISHMENT INSPECTION OF KULP FOUNDRY, INC. STOKES AVENUE EAST STROUDSBERG, PA. KULP FOUNDRY, INC., APPELLANT IN 81-2450 SECRETARY OF LABOR, APPELLANT IN 81-2451


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA -- SCRANTON.

Adams, Hunter, and Becker, Circuit Judges.

Author: Hunter

Opinion OF THE COURT

HUNTER, Circuit Judge:

INTRODUCTION

1. On July 10, 1981 Kulp Foundry, Inc. was held in civil contempt by the United States District Court for the Middle District of Pennsylvania for its failure to honor an Occupational Safety and Health Administration ("OSHA") inspection warrant. The district court issued its contempt order after quashing and severing as overbroad that portion of the warrant which authorized the Secretary of Labor to inspect documents at the Kulp plant. The district court held that the quashed part of the warrant provided for inspection power beyond the Secretary's statutory authority under section 8(a) of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 (1976). At No. 81-2450 Kulp appeals from the district court's order holding it in contempt and from the district court's denial of its motion to quash the warrant in its entirety. At No. 81-2451 the Secretary of Labor appeals from the district court's order quashing and severing that part of the warrant authorizing the inspection of documents. We dismiss Kulp's appeal as moot and affirm the district court's order holding that the Secretary is without statutory authority to inspect documents pursuant to a section 8(a) search warrant.

FACTS

2. On April 16, 1980 the Wilkes-Barre OSHA Area Office received a written complaint alleging that employees at Kulp Foundry's East Stroudsberg plant were exposed to "high levels of dust."*fn1 The complaint alleged that the dust problems were the result of a damaged and inoperative vacuum system on the plant floor. Based on its evaluation of the complaint, see 29 C.F.R. § 1903.11 (1981), OSHA decided to perform an inspection of the plant site. On May 20, 1980 an OSHA industrial hygienist visited the plant but Kulp officials refused to permit his entry.

3. On November 14, 1980 OSHA made an ex parte application to United States Magistrate Raymond J. Durkin for an inspection warrant based on the previously received complaint. The application sought inspection authority extending to all foundry operations where silica was present, to health hazards in plain view, and to conditions brought to the inspector's attention during the course of the inspection. The application requested that the inspection include "all pertinent conditions, structures, machines, apparatus, devices, equipment, materials and all other things therein (including records, files, papers, processes, controls and facilities) bearing on whether this employer is complying with the Occupational Safety and Health standard for exposure to silica." App. at 15. In addition OSHA requested authorization to employ the attachment of personal samplers to employees to engage in private questioning of employees at the worksite.

4. The magistrate determined that probable cause existed and issued the requested warrant.*fn2 On November 17, 18, and 19, 1980 an OSHA compliance officer attempted to execute the warrant, but the "inspection was terminated due to the inability to agree on the meaning of the warrant and the terms of the inspection." App. at 23.*fn3

PROCEDURAL HISTORY

5. On April 6, 1981 the Secretary of Labor filed a Petition for Adjudication of Civil Contempt in the Middle District of Pennsylvania alleging that Kulp Foundry was in contempt because of its refusal to allow execution of the warrant. App. at 36; see 11 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 2960 (1973 & 1981 Supp.). In response Kulp filed a Motion to Quash Warrant, and on April 28, 1981 Judge Conaboy issued a Rule to Show Cause why Kulp's motion should not be granted. A hearing was convened on May 6, 1981.

6. On July 10, 1981 Judge Conaboy issued a Memorandum and Order in which he upheld the warrant in all respects except insofar as it authorized the inspection of records. The judge held that under the statute, if OSHA wanted to inspect records, it was required to seek a subpoena rather than a warrant. As to the other portions of the warrant, the court granted the Secretary's Petition for Adjudication of Civil Contempt and ordered Kulp to purge itself by permitting an inspection in accordance with the Court's order. An inspection was subsequently held, but OSHA issued no citations.*fn4

7. Kulp appealed to this court that part of the district court's order which denied Kulp's Motion to Quash and which held Kulp in civil contempt for failure to honor the warrant. Kulp claimed that no probable cause or statutory authority existed for the issuance of the warrant. Kulp also argued that the district court erred by not quashing the entire warrant when it determined that part of the warrant was overbroad and thus invalid. The Secretary filed a cross-appeal claiming that the ...


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