F. Ray MARSHALL, Secretary of Labor, U. S. Department of Labor, Petitioner-Appellee, v. ABLE CONTRACTORS, INC., Respondent-Appellant
Opinion
Opinion
Able Contractors (Able) appeals from a district court order compelling it to submit to inspections under the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 , et seq. The Secretary of Labor sought the injunction after Able on several occasions refused inspectors access to its premises and worksites.
The crux of Able’s defense was that before inspections under § 657(a) can proceed the Secretary must prove that Able is an employer “engaged in a business affecting commerce,” [§ 652(5)] and therefore subject to OSHA’s coverage. Able argues that the Secretary must resort to a pre-inspection evidentiary hearing, utilizing his § 657(b) subpoena powers when statutory coverage is in issue. It is also asserted that Congress would be exceeding its constitutional powers to authorize inspections without a prior showing of coverage under the Act.
Abie’s defense is without merit. Requiring such a hearing would totally frustrate OSHA’s express objective of establishing a system of inspections executed without undue delay or advance notice. See §§ 657(a), 666(f). Furthermore, the Secretary’s resort to his § 657(b) powers is, by the statute’s very terms, discretionary.