The Chemical World This Week
COURT RULING MAY HINDER OSHA INSPECTIONS The Supreme Court last week sent tremors through the Occupational Safety & Health Administration when it ruled, five to three, that OSHA inspectors can be forced to obtain federal warrants before inspecting a private workplace when an employer refuses entry to inspectors. Long-time conservative opponents of OSHA and business groups cheered the ruling as vindication of industrial privacy rights. The impact of the high court decision, however, is clouded by key language in the decision, and it may turn out to be only a moral victory for OSHA critics. Writing for the Court majority, Justice Byron R. White declared that surprise inspections of private workplaces under the Occupational Safety & Health Act of 1970 amount to warrantless searches and thus are prohibited by the Constitution's fourth amendment provisions against unreasonable search. Chief Justice Burger and Justices Powell, Marshall, and Stewart joined White in the majority opinion. Speaking for Court dissenters, Justice John Paul Stevens declared that the majority had misinterpreted fourth amendment restrictions on unreasonable search and in doing so had undermined the amendment's provisions for probable cause. He was joined by Justices Blackmun and Rehnquist. Justice Brennan did not take part in the case. The Supreme Court stopped short, though, of handing OSHA critics the major victory they had hoped for. White conceded in the 17-page majority opinion that for OSHA inspectors to obtain a warrant to enter a workplace, "probable cause in the criminal sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular establishment.' " The decision came in an Idaho case brought to the Supreme Court by the government after a three-judge federal panel there affirmed that OSHA had to seek a federal warrant before inspecting Barlow's Inc., a Pocatello 4
C&EN May 29, 1978
posed under previous agency policies. 2 Mintz notes that in earlier cases when o. 3= OSHA was refused entry into a workplace, the agency often obtained warrants to do so. "We never forced our way in," adds Bingham. Nevertheless, OSHA opponents are cheered by the court decision. Rep. George Hansen (R.-Idaho) praised Barlow for resisting a "runaway bureaucracy [that] since its inception in 1970 has long been an irritating violator of the fourth amendment rights of the nation's farmers and businessmen." On the other hand, Al Grospiron, president of the 180,000-member Oil, Chemical & Atomic Workers International Union, denounced the decision as "a major setback for working people." He claims that OSHA inspectors will no longer havQ the element of surprise before entering a workplace. The Barlow case was believed in some legal circles to be a basic test of Bingham: we never forced our way in many federal regulatory programs that depend on inspections. The Suplumbing and heating firm. Company preme Court, however, made a deowner Ferrol G. Barlow started the liberate effort to proscribe broad inlegal machinery when he refused to terpretation of the Barlow ruling. allow an OSHA inspector into his Justice White notes in the majority shop on Sept. 11, 1975, for a routine opinion that certain industries such check. Barlow is a long-time oppo- as alcoholic beverages and firearms nent of OSHA and was aided in his "have such a history of government court fight by organizations such as oversight that no reasonable expecthe American Conservative Union tation of privacy could exist for a and the National Legal Center for the proprietor." White argues further that individuals "engaged in such Public Interest. Although the Supreme Court de- federally licensed and regulated encision didn't exactly send OSHA of- terprises accept the burdens as well as ficials reeling, it apparently is the the benefits of their trade." The full impact of last week's rulcause of some real concern. OSHA administrator Eula Bingham opti- ing is still unclear and likely will take mistically told a Washington, D.C., months to develop. Meanwhile, press conference last week that "it is suggests Washington lawyer Robert OSHA's intention to continue to V. Zener of Pepper, Hamilton & carry out its mandate of protecting Scheetz, formerly general counsel for Protection American workers to the fullest ex- the Environmental tent possible." Nevertheless, she Agency, "My advice generally would cautions that "if there are a large be not to refuse routinely [to comply] number of demands for warrants, it unless you're being harassed or becould cut down on our inspections." cause of frivolous employee comAlthough Bingham says that the plaints." Zener cautions that to do agency is confident that a majority of otherwise might lend OSHA officials U.S. businesses will continue to co- to suspect that an employer has operate with inspections, last week's something to hide. But he also ruling is certain to increase OSHA's suggests that in cases of employee complaints, an employer might try (if costs and add to its paper work. OSHA attorney Benjamin Mintz time permits) to force OSHA to obtold reporters he doesn't believe that tain warrants that limit inspections to the court decision will invalidate specific plant areas and thus avoid a • OSHA citations against firms im- general inspection.
