OSHA Program Isn't Excuse for Expanded Inspection: Court

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By Bruce Rolfsen

Aug. 8 — A hospitalization report and regional emphasis program don't entitle OSHA to mount a comprehensive inspection of a poultry plant, a federal magistrate said in an Aug. 5 recommendation to quash a search warrant the Occupational Safety and Health Administration had earlier obtained ( In re Establishment Inspection of Mar-Jac Poultry, Inc., N.D. Ga., 16-0192, report and recommendation 8/5/16 ).

OSHA has 14 days to file an objection with the U.S. District Court for the Northern District of Georgia. If no objection is filed, the recommendation may become a district court order. An agency spokesman told Bloomberg BNA Aug. 8 that OSHA is reviewing the judge's recommendation.

At issue is OSHA's attempt to mount a comprehensive inspection of a poultry plant in Gainesville, Ga., operated by Mar-Jac Poultry Inc.

OSHA initiated the inspection in February after Mar-Jac, as required by OSHA's injury reporting rule, notified the agency on Feb. 4 that a maintenance worker had been hospitalized for burns from an electrical arc flash.

OSHA Seeks Wider Inspection

After OSHA's initial inspection uncovered the potential for other electrical hazards in the plant, OSHA sought to expand the scope of the inspection to cover more hazards in the plant, including ergonomics, biological hazards and slips/falls.

As part of the justification to expand the inspection's scope, OSHA referred to its 2015 regional emphasis program for poultry plants covering employers in southeastern states.

On April 1, Magistrate Judge J. Clay Fuller approved a search warrant allowing OSHA to inspect the plant.

Warranted Objections

Ten days later, Mar-Jac asked Fuller to quash the search warrant, claiming the poultry “regional emphasis program” couldn't be used to justify the expanded inspection.

“The mere existence of the REP for poultry alone does not justify the claimed expansion, since OSHA has admitted that Mar-Jac was not on any list for scheduled inspections as provided for in that plan, and the accident investigation does not suffice to open the door to the wall-to-wall inspection that OSHA’s improperly-procured warrant would authorize,” Mar-Jac's attorney said in an April 11 memorandum of law.

“The warrant should be quashed because its execution will abrogate Mar-Jac’s Fourth Amendment right to be free from unreasonable search and seizure,” the memorandum continued.

‘Tools of Harassment.'

In his Aug. 5 report and recommendation, Fuller largely agreed with Mar-Jac.

The magistrate cited past court decisions that found a worker's complaint couldn't be automatically used by OSHA to conduct a wall-to-wall inspection of a workplace or hazards not involved with the injury.

Fuller also cited court decisions intended to limit OSHA managers' discretion so that unprogrammed inspections don't become “tools of harassment.”

“Under these circumstances, reliance on an REP (regional emphasis program) that vests unbridled and completely undefined discretion in a manager to decide which, if any, inspections are expanded to comprehensive inspections falls squarely in the ‘unbridled discretion' identified as problematic by the Supreme Court,” Fuller said.

J. Larry Stine of Wimberly, Lawson, Steckel, Schneider and Stine PC represented Mar-Jac.

The Department of Labor's Office of the Solicitor and the U.S. Attorney's Office for the Northern District of Georgia represented OSHA.

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com .

For More Information

The order and recommendation in Mar-Jac is available at http://src.bna.com/hxA.

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