Equitable Shipyards, Inc.

Plain-English summary

OSHA cited Equitable Shipyards for inadequate mechanical ventilation and respirator protection against welding fumes. The Commission rejected Equitable’s request to suppress inspection evidence obtained under a limited warrant based on an employee complaint. It held, however, that the judge should have enforced a subpoena for Equitable’s former safety director, who accompanied the inspector and could provide important testimony about whether welders wore respirators approved for welding fumes. The record contained direct conflicts about the respirator models, and the parties had not stipulated that the employees used unapproved equipment. The Commission set aside inconsistent portions of the judge’s decision and remanded for further proceedings on the subpoena issue. It did not decide a separate employee-statement disclosure issue, and the release does not identify the cited standard numbers or penalties.

Decision snapshot

• Cited standard(s): No standard numbers are identified in the release.
• Outcome: Welding-fume items remanded for further proceedings involving the subpoenaed safety director’s testimony.
• Key point: A party must be allowed to present a potentially crucial witness when the existing evidence sharply conflicts and no stipulation resolved the disputed fact.

Full text (OSHRC public release)

Docket No. 81-1685 81-1762 81-2089

SECRETARY OF LABOR,

Complainant,

v.

EQUITABLE SHIPYARDS, INC.,

Respondent.

OSHRC Docket Nos, 81-1685, 81-1762,

& 81-2089

DECISION

BEFORE:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration ("OSHA").  It was established to resolve disputes
arising out of enforcement actions brought by the Secretary of Labor under the Act and has
no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

Administrative Law Judge Paul L. Brady affirmed a citation alleging that
Equitable Shipyards, Inc. ("Equitable") failed to protect certain employees
against overexposure to welding fumes by assuring that the employees wore appropriate
respirators and by providing sufficient mechanical ventilation.  In addition to
arguing that it did not violate the cited standards, Equitable contends that (1) all
evidence gathered by the Secretary of Labor during his inspection of Equitable's workplace
should be suppressed because there was no probable cause for the inspection; (2) the judge
erred in declining to enforce a subpoena Equitable had issued to Tim Dorman, Equitable's
safety director at the time of the alleged violations; and (3) the judge erred in not
ordering the Secretary to turn over to Equitable employees.  We conclude that
Equitable's motion to suppress was properly denied.  We further conclude, however,
that the judge erred in declining to enforce the Dorman subpoena and that remand for
further proceedings is therefore required.

I

Equitable operates a shipyard in Madisonville, Louisiana.  Following a complaint by
employees of unsafe working conditions, two OSHA compliance officers attempted to inspect
the facility.  When Equitable refused to consent to the inspection, OSHA obtained a
warrant from a federal magistrate authorizing it to inspect the areas in the shipyard that
were mentioned in the employee complaint.  Equitable again refused to permit the
compliance officers to conduct the inspection and filed suit in federal district court
seeking to have the warrant quashed on the ground it was not supported by probable cause.
 The district court found there was probable cause to support the warrant and ordered
that the inspection be conducted according to its terms.  Ultimately, the inspection
was conducted, and Equitable was cited for violating several OSHA standards on the basis
of information gathered during the inspection.

Equitable argues that the evidence gathered during the inspection should be
suppressed and the citations vacated because probable cause for issuance of the warrant
was lacking.  We reject the argument.

In Chairman Buckley's view, the Commission has no authority to review or set
aside the probable cause determination made by a federal judge or magistrate who issues a
search warrant.  Brooks Woolen Co ., OSHRC Docket Nos. 79-45 and 79-128, slip
op. at 2-3 (April 10, 1985)(view of Chairman Buckley).  Where an inspection was
conducted pursuant to a warrant, the Commission can consider challenges to the warrant
based on allegations that the Secretary acted illegally in obtaining or executing the
warrant.  Id .  In this case, Equitable claims no misconduct on the
Secretary's part; it argues only that the probable cause determination made by the
magistrate and upheld by the district court judge was in error.  As the Commission
has no authority to rule on such an argument, Chairman Buckley would deny the motion to
suppress.  Id .; Beauty Craft Tile of the Southwest, Inc ., 84
OSAHRC____,12 BNA OSHC 1082, 1083, 1984 CCH OSHD � 27,091, pp. 34,929-30 (No. 80-471,
1984).

Commissioner Cleary finds the warrant is supported by probable cause.
 The Secretary sought the warrant after receiving a formal, signed complaint from
five employees listing a number of purportedly unsafe conditions in the Erection and Rake
areas of Equitable's shipyard.  The complaint stated that employees were exposed to
toxic air contaminants from painting and welding operations, to fire hazards due to
improperly maintained welding equipment, to fall hazards due to improperly tightened
safety lines, to a slipping hazard due to oil leaking on barge decks, and to electrical
shock due to improperly maintained welding lines and to welding in wet and rainy weather.
 The warrant application set forth the substance of the employee complaint and sought
to inspect only those areas of the shipyard mentioned in the complaint.  The warrant
that was issued was similarly limited.  The information presented in the warrant
application was sufficient to establish probable cause for the limited-scope warrant that
the magistrate issued.  See Sarasota Concrete Co. , 81 OSAHRC 48/A2, 9
BNA OSHC 1608, 1615-16, 1981 CCH OSHD � 25,360, pp. 31,534-35 (No. 78-5264, 1981), aff'd ,
693 F.2d 1061 (11th Cir. 1982).

Even if the warrant was not supported by probable cause, Commissioner Cleary
would not suppress the evidence.  The Supreme Court has held that evidence should not
be suppressed when an officer acting with objective good faith has obtained a warrant from
a judge or magistrate and acted within its scope.  United States v. Leon , 104
S.Ct. 3405, 3420 (1984).  Commissioner Cleary would apply that same rule to
Commission proceedings.  Davis Metal Stamping, Inc ., OSHRC Docket No. 78-5775
(April 15, 1985).  In this case, the compliance officers who inspected Equitable's
workplace were clearly entitled to rely on the validity of the warrant. The warrant had
been duly issued by a magistrate and, prior to its execution, the magistrate's probable
cause determination had been upheld by the federal district court.  Equitable does
not argue that the compliance officers acted in other than good faith in obtaining and
executing the warrant and does not advance any reason why they were not entitled to rely
on the warrant's validity.  Cf . United States v. Leon , 104 S.Ct.
at 3421-22 (suppression of evidence is appropriate if magistrate was misled by knowingly
or recklessly false information in an affidavit, or if affidavit was "so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.").  Because the compliance officers conducted the inspection in
objectively reasonable reliance on the validity of the warrant, there is no basis to
suppress the evidence.  See Donovan v. Federal Clearing Die Casting Co .,
695 F.2d 1020 (7th Cir. 1982).

II

Equitable next asserts that the judge erred in refusing to enforce a subpoena issued to
Equitable's safety director, Tim Dorman. Dorman was the company's principal representative
during the inspection.  At the time of the hearing, Dorman was no longer employed by
Equitable and had moved to San Francisco.  Equitable attempted to obtain Dorman's
testimony by means of a subpoena.  See 29 C.F.R. � 2200.55 (Commission rule
governing subpoenas).  The facts surrounding service of the subpoena are not fully
developed in the record, but Dorman apparently received notice of it for he wrote a letter
to Equitable's counsel declining to appear at the hearing.  At the outset of the
hearing, Equitable moved for enforcement of the subpoena.  The judge reserved ruling
at that point.  When Equitable renewed its motion at the close of its evidence, the
judge denied the motion, stating that Dorman's testimony "is not crucial to this
proceeding."

We conclude that the judge erred in declining to enforce the subpoena on that
ground.  On at least one material issue of fact, there is a sharp conflict in the
evidence, and Dorman's testimony could be crucial in resolving that point.  Moreover,
as Equitable's safety director and representative during the inspection, Dorman would
ordinarily be expected to be an important witness for Equitable. Under the circumstances,
fundamental fairness requires that Equitable be given the opportunity to obtain Dorman's
testimony.

The issue on which there is conflicting evidence concerns the type of
respirator certain Equitable employees were using during the inspection.  One of the
citation items on review alleges that five welders were exposed to excessive levels of
welding fumes while not wearing respirators approved for use against welding fumes.
 Although four of the employees were observed by the Secretary's compliance officers
to be wearing respirators, the Secretary alleged that those respirators were not approved
for welding fumes.  The Secretary also alleged that the fifth employee was not
wearing any respirator at all.  Equitable contends that it provided respirators
approved for use against welding fumes and that its employees were required to wear such
respirators whenever welding. The company further contends that the evidence does not
support the Secretary's allegation that the five employees in question were not wearing
proper respirators.

During the inspection, OSHA compliance officers monitored the five employees
to determine the concentrations of welding fumes to which they were exposed.
 Compliance officer Crawford monitored three of the employees:  Glass, Revere,
and Sharp.  Crawford was accompanied by Dorman during this phase of the inspection.
 Crawford testified that Glass, Revere, and Sharp wore 3M model 8710 respirators,
which provide protection against dust but are not approved for welding fumes.  
Crawford stated that he wrote down the NIOSH approval number from the respirator that
Glass was wearing.  That number, TC-21C-132, corresponds to the approval number of
the 8710 respirator that was introduced into evidence.  Crawford further testified
that the 8710 respirator appeared significantly different from the 3M model 9920
respirator that Equitable claims the employees were wearing and which is approved for
welding fumes.  Samples of both respirators were introduced into evidence and support
Crawford's testimony that the two respirators are distinct in appearance and could not be
confused.

Of the three employees observed by Crawford, only Glass testified.  When
shown a 9920 respirator, Glass stated that it was the type of respirator he had been
wearing at the time of the inspection.  Glass answered affirmatively when asked if he
was absolutely positive that the 9920 was the type of respirator he had been wearing,
stating:  "You wear one every day of your life while you're working, you ought
to recognize it."  Glass was no longer working for Equitable at the time of the
hearing and had no apparent interest in the outcome of the case.

Two employees, Cooper and Mayfield, were monitored by compliance officer
Cannon, who was accompanied by Equitable's safety inspector Stein.  Cannon testified
that Cooper was wearing a model 8710 respirator.  He did not observe the model number
on the respirator but identified it as an 8710 because it possessed two straps instead of
only one.  Stein identified the respirator that Cooper was wearing as a 9920.
 The respirator samples introduced into evidence show that both the 8710 and 9920
have two straps.

Cannon testified that Mayfield was not wearing any type of respirator and had
no respirator with him when he went into the wing wall, where he performed welding that
day.  However, Cannon stated that he placed the sampling cassettes on the employees
before they went into the wing wall and would not have seen if Mayfield put on a
respirator inside the wing wall.  Nevertheless, Cannon was certain that Mayfield did
not use a respirator inside the wing wall.  He stated, "Every time he came out,
he didn't take one off, and as far as I know, he had none available.  He may have had
one available, but he was not utilizing one."  Stein testified that both Cooper
and Mayfield had respirators with them when they went into the wing wall, and he did not
observe either of them welding without wearing a respirator.

The judge did not resolve the conflicts in the evidence.  Instead, he
believed the parties had stipulated that the employees in question were wearing 8710
respirators at the time of the inspection and, on this basis, he affirmed the citation
item.  Equitable argues on review that no such stipulation was entered.

We agree.  At the beginning of the portion of the hearing devoted to the
welding fumes citation, Equitable's counsel did express a willingness to stipulate to the
type of respirators being worn, but no such stipulation was ever completed.  After
the Secretary's counsel stated her intention to call several Equitable employees as
witnesses, the following exchange ensued:

JUDGE BRADY:  You don't have any problem with that, do you, Mr. Rader?

MR. RADER [Counsel for Equitable]:  No, Your Honor.  Of course,
again, I don't know, but if the purpose of calling employees is to testify that they wore
this particular respirator, then we would stipulate that.

JUDGE BRADY:  Let's get off the record to discuss this.

(Off-the-record discussion).

JUDGE BRADY:  Let's go back on the record.  During the
off-the-record discussion meeting of the parties, there has been a stipulation reached.
 Do you want to cite the terms of the agreement, Mr. Rader?

MR. RADER:  Your Honor, it's my understanding that the Secretary intends
to call some employee witnesses for the purpose of establishing that on a day personal
monitoring was conducted, that their work load was normal, that the ventilation was
normal.  And we're certainly willing to stipulate to that point.

MS. GANNAWAY [Counsel for the Secretary]:  Right Your Honor.  For
clarification, the purpose being that the Secretary is establishing that this was a
routine work day, that it's representative of the nature and the extent and the quantity
of work performed by these workers on a typical work day, that there was nothing out of
the ordinary on the day of personal monitoring.

This exchange cannot be construed to include a stipulation that Equitable's
welders wore 8710 respirators.  The offer by Equitable's counsel to stipulate to the
type of respirator did not mention a model number, and there had been no previous mention
at the hearing of the 8710 respirator that would indicate that the reference to "this
particular respirator" meant the model 8710.[[1]] Moreover, the stipulation that was
ultimately entered involved only the representativeness of the work load and ventilation
on the day monitoring was performed, not the type of respirator being worn.  The
subsequent course of the hearing is also inconsistent with any suggestion that the parties
understood there was a stipulation concerning the type of respirator the welders were
using.  The parties introduced conflicting evidence on the point, and each side
cross-examined the other party's witnesses who testified on the subject.  At no time
during the hearing did either party suggest that this lengthy testimony was unnecessary
because a stipulation had resolved the issue.

In declining to enforce the subpoena on the basis that Dorman's testimony was
not crucial, the judge apparently acted on his belief that the parties had stipulated that
the welders wore unapproved respirators.  However, that issue not only remains in
dispute, the evidence on it is sharply contradictory.  In particular, Crawford's
testimony positively identifying the respirators worn by Glass, Revere, and Sharp as
8710's conflicts with Glass' equally unequivocal testimony that he was wearing a 9920.
 Dorman accompanied Crawford during the portion of the inspection when Crawford
observed Glass, Revere, and Sharp.  Equitable made an offer of proof that Dorman
would testify that the employees were wearing 9920 respirators.[[2]]  Under these
circumstances, Equitable is entitled to the opportunity to present Dorman's
testimony.[[3]]  We reject the Secretary's argument that Dorman's testimony is not
needed because other persons, Revere and Sharp, could shed additional light on the issue.
 We are unwilling to second-guess counsel's choice of one witness over another; that
several persons may have knowledge of a particular fact should not preclude a party from
presenting the witness of its choice.

The Secretary argues in his brief to the Commission that the subpoena should
not be enforced because it was not properly served on Dorman.  We see no reason to
resolve this point now.  First, it is not clear that the Secretary may raise this
objection; in general, a party lacks standing to raise objections to a subpoena issued to
another person.  See Lee Way Motor Freight , 75 OSAHRC 20/E12, 3 BNA
OSHC 1843, 1846, 1975-76 CCH OSHD � 20,250, p. 24,144-45 (No. 7674, 1975).  Second,
the judge did not base his ruling on the Secretary's objection and has not yet had
occasion to consider it.  Where there is a question as to whether a subpoena was
properly served, a definitive ruling can be made in a proceeding to enforce the subpoena.
  National Labor Relations Board v. Strickland , 321 F.2d 811, 814 (6th
Cir. 1963).

III

During the inspection, the compliance officers obtained written statements from a number
of Equitable employees.  Equitable sought to obtain those statements through
discovery and submitted to the Secretary written forms signed by nineteen employees
authorizing the release of their statements to Dorman, who was then still Equitable's
safety director.  The Secretary refused to produce the statements and the judge did
not order them produced.  Equitable contends that the judge erred in failing to order
the Secretary to turn over the statements.

We find it unnecessary to resolve this issue.  Equitable had claimed
before the judge that the employees' statements pertained to "several" citation
items and that the employees had made effective waivers of their informer's privilege.
 The judge did not order disclosure.  In his decision, the judge affirmed
several citation items and modified one to a de minimis notice.
 Equitable sought and obtained discretionary review of the judge's disposition of
only two of these items--subitems 1a and 1b of serious citation 2 in docket no. 81-2089.
  These items allege that five named employees were overexposed to welding and iron
oxide fumes on June 3, 1981, that mechanical ventilation was inadequate, and that the
employees were not wearing the appropriate respirators.  The Secretary argues in his
answering brief on review, and Equitable does not in its reply brief dispute, that the
issue of the production of the statements does not pertain to the citation items still in
controversy.  Aside from a technical dispute over where personal sampling devices
should have been placed on the five employees, the only disputed question of fact on
review is whether the five employees were wearing respirators approved for welding fumes.
  The nineteen statements that Equitable sought were not made by any of those five
employees and were made about two months before the alleged violations before us occurred.
 Equitable does not seek the disclosure of any statements made by the five employees
and it has not produced any written waivers signed by them. Although the statements sought
were apparently relevant to two other items that the judge had respectively affirmed
without penalty and had modified to a de minimis notice, Equitable did not
seek discretionary review as to them.  We therefore have no occasion at this time to
address the disclosure issue.

Accordingly, the judge's decision is set aside to the extent it is
inconsistent with this decision, and the case is remanded for further proceedings in
accordance with Part II of this opinion.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  APR 18 1985

FOOTNOTES:

[[1]] Immediately prior to the quoted exchange, the Secretary had presented
his case on a different respirator item, which alleged that spray painters were not
protected by approved respirators.  The Secretary's evidence showed, and the parties
stipulated, that Equitable's spray painters had been using 3M model 8711 respirators.
 It is possible that counsel's reference to "this particular respirator"
arose out of a misunderstanding as to which citation item was being discussed and was
meant to refer to the previously discussed 8711 respirators.

[[2]] The judge stated that even if Glass was wearing a 9920 respirator during the
inspection, Equitable would still be in violation because three other employees were
wearing unapproved respirators and one was not wearing any respirator at all.  We do
not agree that the record supports these conclusions.  First, if Glass' testimony
that he wore a 9920 respirator is believed, Crawford's testimony that Revere and Sharp
were wearing unapproved respirators must be rejected, for Crawford testified that Revere
and Sharp were wearing the same type of respirator as Glass.  Second, Cannon's
testimony that Cooper wore an unapproved respirator was based primarily on his observation
that Cooper's respirator had two straps.  However, the 9920 respirator, like the
8710, has two straps, and Stein testified that the respirator Cooper wore was a 9920.
 Thus, the record does not support a finding that Cooper wore an unapproved
respirator.  Finally, neither Cannon nor Stein could positively state whether
Mayfield wore a respirator while he was welding, as neither could see him during that
time.  Their testimony conflicted on whether Mayfield had a respirator with him when
he went into the wing tank.  Without a credibility determination, we cannot find that
Mayfield was not protected by a respirator when welding.  See Evansville
Materials , 77 OSAHRC 143/M9, 3 BNA OSHC 1741, 1742, 1975-76 CCH OSHD � 20, 187, p.
24,046 (No. 3444, 1975).

[[3]] At one point, Equitable suggested that Dorman's deposition could be
taken as an alternative to his appearance at the hearing. On remand, the parties should
consider this possibility.  See section 12(h) of the Act, 29 U.S.C. � 661(g)
(Commission may order testimony taken by deposition); 29 C.F.R. � 2200.70 (deposition in
lieu of testimony).