Recent court decisions are giving business managers more leeway to say "no" to inspectors from the Occupational Health & Safety Administration.
When the agency was set up, Congress gave it the authority to demand access to workplaces to check out possible hazards. But in 1978, the U.S. Supreme Court called turning over that much power to a regulatory agency unconstitutional.
The justices told OSHA that it would have to go to court to get a search warrant to get into factories where the owners would not admit inspectors voluntarily. The latest battle is over just how far those warrants let the inspectors poke around.
OSHA has always maintained that once it gets a warrant, it can not only look for unsafe levels of dust and faulty ladder rungs, but also go through a company's files seeking documentary evidence of health or safety problems.
But two appeals court decisions in the last six weeks have severely crimped that authority. The Labor Department has until today to ask the U.S. Court of Appeals in Philadelphia to take a second look at the matter.
In the meantime, it looks as though OSHA will have to get subpoenas -- rather than warrants -- to go after at least some kinds of records from employers in the states covered by the two recent decisions: Delaware, Pennsylvania, New Jersey, Rhode Island, Massachusetts, New Hampshire and Maine.
"Until we've done it, we really won't know how difficult it will be," says Labor Department lawyer Andrea C. Casson, who worked on both appeals. She insists that the new approach doesn't really help companies, but the circuit judges in Philadelphia found that demanding subpoenas would give corporate managers significantly more leverage in opposing OSHA demands.
Inland Steel is the first company that went to court to argue that an OSHA warrant can not be used to inspect documents. It won its case, at the district court level, in 1980. But the issue has been little litigated since, and the impact of the new appellate rulings will be far broader than the ripples from Inland's pioneering victory from a trial court in Hammond, Ind.
The Philadelphia decision, handed down Oct. 28, involves Kulp Foundry in East Stroudsberg, Pa. In opposing an OSHA warrant, Kulp convinced a judge in Harrisburg to quash the part applying to "records, files, papers," and -- even though safety inspectors have since given the foundry a clean bill of health -- the appeals judges upheld that action. Congress just never meant the power to inspect a plant to include a search of files, they ruled.
But as judges are wont to do, they appended a footnote. "We're not ruling," they explained, on whether a search warrant is enough to enforce a demand to see specific records that the law says employers must "make available" to the safety agency. The issue didn't come to a head because the warrant language was so broad that the controversy never got down to specific documents.
The even more recent case did involve such specific documents, and there the judges at the Circuit Court in Boston on Dec. 6 handed OSHA a victory. But it is a victory couched in such narrow terms that it is not different from the agency's loss in Philadelphia.
The Boston case involves Wollaston Alloys of Braintree, Mass., and OSHA was particularly interested in seeing the "200 log" -- the basic record of worker accidents and illnesses that the Labor Department demands that all companies keep. That is just the sort of record that the judges in the Kulp Foundry case meant in their footnote, the Boston judges said. So yes, OSHA could, using the power of a general warrant, insist on seeing it. And the initial reports of injuries -- the raw material from which the 200 log was compiled -- are also available, the opinion goes on, because they are so closely related to the basic document.
But the judges refused to let the warrant authority stretch to something else the OSHA inspectors wanted to see: machinery inspection records. "The inspection reports of cranes and slings, however, were not records that the secretary of labor required Wollaston to maintain, and thus Wollaston was not required to make them available," explained Judge Hugh H. Bownes.
What makes that explanation so devastating to OSHA is that the inspection records are covered by a broad regulation giving compliance officers the power to look at "other records which are directly related to the purpose of the inspection."
The judges simply knocked down that regulation, saying the Labor Department had no authority to issue it. And in doing so, they specifically agreed with the Philadelphia judges, who had noted that the usual deference courts are supposed to show to an agency's interpretation of its own basic law can't be wielded "as a shield for permitting agencies to extend their statutory authority beyond that delegated to them by Congress."
OSHA's best hope for getting a quick resolution of the question is to get the Supreme Court to take up one of the two recent cases. But it's best chance of convincing the Justices that the matter is worth their attention is to show a disagreement among the various circuits.
And the Boston decision seems carefully crafted to minimize just such a division, emphasizing the areas of agreement with the earlier Philadelphia decision. That suggests that if OSHA wants to try to continue to search files when it presents a company with a search warrant, it may have to fight a circuit-by-circuit battle before a national rule is established.