United States of America Department of Labor, Occupational Safety and Health Administration v. Long Island Precast, Inc.

Filing 11

MEMORANDUM AND ORDER - For the foregoing reasons, Long Island Precast's motion to quash the administrative subpoenas is GRANTED IN PART and DENIED IN PART. The Court finds that the Subpoenas Ad Testificandum and the Subpoena Duces Tecum are ful ly enforceable, except that the first document demand of Attachment #1 to the Subpoena Duces Tecum shall be limited to information relating only to employees of Long Island Precast. Long Island Precast is further ORDERED to comply with the Subpoenas Ad Testificandum and the Subpoena Duces Tecum no later than ten (10) days after the entry of this Memorandum and Order. So Ordered by Judge Joanna Seybert on 7/29/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
LONG ISLAND PRECAST, INC.,
Petitioner,

MEMORANDUM & ORDER
14-MC-0772(JS)

-againstUNITED STATES DEPARTMENT OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION,

Respondent.1
-------------------------------------X
APPEARANCES
For Petitioner:
Saul D. Zabell, Esq.
Zabell & Associates, P.C.
1 Corporate Drive, Suite 103
Bohemia, NY 11716
For Respondent:

Susan Beth Jacobs, Esq.
United States Department of Labor
Office of the Solicitor
201 Varick Street, Room 983
New York, NY 10014
Thomas A. McFarland, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, NY 11722

SEYBERT, District Judge:
Presently before the Court is petitioner Long Island
Precast, Inc.’s (“Petitioner” or “Long Island Precast”) motion
to

quash

administrative

subpoenas

issued

by

respondent

the

Long Island Precast’s submissions initiating this action
incorrectly named itself as defendant and OSHA as plaintiff.
The Clerk of the Court is directed to amend the caption to name
Long Island Precast as the petitioner and OSHA as the
respondent.
1

United

States

Department

of

Labor,

Occupational

Health Administration (“OSHA” or “Respondent”).

Safety

and

OSHA issued the

administrative subpoenas during an investigation it undertook in
response to an accident report involving one of Long Island
Precast’s employees.

For the following reasons, the motion is

GRANTED IN PART and DENIED IN PART.
BACKGROUND
Long
concrete

Island

products.

Precast
It

is

owns

and

facility in Brookhaven, New York.
8, ¶¶ 2, 4.)

a

manufacturer
operates

a

of

precast

fourteen-acre

(Calliari Decl., Docket Entry

On June 5, 2014, the Long Island OSHA Area Office

received a report that one of Long Island Precast’s employees
had fallen off a piece of machinery from a height of more than
nine feet.

(Calliari Decl. ¶ 3.)

As a result of the accident

report, the Long Island OSHA Area Office initiated an on-site
inspection of Long Island Precast’s Brookhaven facility.

Brian

Calliari, an OSHA Compliance Safety and Health Officer, (the
“CSHO”) conducted on-site inspections on June 5 and 6, 2014.
(Calliari Decl. ¶¶ 4, 10-15.)
During the first on-site inspection, the CSHO learned
that

the

fallen
climbing

injured

employee,

approximately
the

vertical

(Calliari Decl. ¶ 11.)

nine
face

Carlos

feet,
of

Mendoza

three
three

(“Mendoza”),

had

inches

while

he

was

concrete

catch

basins.

Mendoza worked as a “hookerman” on the
2

day of the accident, loading and rigging concrete catch basins
onto a forklift truck.

He apparently fell while attempting to

retrieve and rig the basin at the top of the stack he was
climbing.
several

(Calliari
purported

including

that

Decl.

hazards

¶¶

11-13.)

related

(1) Mendoza

and

The

CSHO

learned

of

to

Mendoza’s

accident,

other

employees

routinely

accessed elevated product stacks by climbing the face of the
product

rather

protection

in

than
place

using
at

the

a

ladder,
time

of

(2) there
Mendoza’s

was

no

accident,

fall
and

(3) there were several deficiencies in the forklift used during
Mendoza’s accident.

(Calliari Decl. ¶¶ 12-14.)

With respect to

the forklift, the CSHO has submitted a declaration attesting to
the following deficiencies:
(1) the data plate on the HysterLift powered
industrial truck indicated that it was
equipped with 72” forks, not a fixed boom
attachment; (2) the fixed boom attachment
was
not
equipped
with
a
data
plate
indicating the rated capacity; (3) the
Gunnebo Eye Type Sling Hook had excessive
wear damage in the throat area of the hook;
(4) the four Clevis sling hooks on the fourway chain sling were damaged in that they
were missing the originally equipped safety
latches; and (6) the four-way chain sling
was not affixed with a tag indicating the
rated capacity.
(Calliari Decl. ¶ 14.)

During the second on-site inspection,

the CSHO observed an employee riding on the side of a second
forklift while it was in motion.

3

(Calliari Decl. ¶ 15.)

The

CSHO also observed deficiencies in this second forklift that
were

similar

to

the

ones

observed

in

the

first

forklift.

(Calliari Decl. ¶ 15.)
Based on his observations of these workplace hazards,
the

CSHO

determined

that

it

was

necessary

to

obtain

more

information through administrative subpoenas pursuant to Section
8(b) of the Occupational Safety and Health Act of 1970 (the “OSH
Act”), 29 U.S.C. § 657(b).

On June 13, 2014, OSHA served Long

Island Precast with a Subpoena Duces Tecum and three Subpoenas
Ad

Testificandum.

(See

Calliari

Decl.

Exs.

2

&

3.)

The

Subpoena Duces Tecum generally seeks documents and information
related to Long Island Precast’s employees and forklifts.

The

Subpoenas Ad Testificandum demand the appearances of Long Island
Precast’s

president,

regarding

the

manager,

working

and

conditions

sales

manager

maintained

by

to

testify

Long

Island

Precast.
On June 18, 2014, Long Island Precast initiated this
proceeding,

moving

(Docket Entry 1.)

to

quash

the

administrative

subpoenas.

OSHA opposes the motion and requests that the

Court enforce the administrative subpoenas.

(Docket Entry 7.)

DISCUSSION
The

Court

will

first

address

Long

Island

Precast’s

motion insofar as it seeks to quash the Subpoena Duces Tecum

4

before

turning

that

portion

of

the

motion

directed

to

the

Subpoenas Ad Testificandum.
I.

Subpoena Duces Tecum
Long Island Precast argues that the Court should quash

the

Subpoena

Precast,

Duces

certain

Tecum

demands

because,
contained

according
therein

to

are

Long

Island

beyond

OSHA’s

authority, are too indefinite, and seek irrelevant information.
(See Zabell Affirm., Docket Entry 2, ¶¶ 7-13; Pet’r’s Reply Br.,
Docket

Entry

9,

at

3-6.)

As

discussed

below,

the

Court

disagrees with Long Island Precast’s characterization of OSHA’s
demands, with the sole exception of one of the document demands.
A.

Applicable Law
Congress enacted the OSH Act in 1970 “to assure so far

as possible every working man and woman in the Nation safe and
healthful

working

resources.”

conditions

and

29 U.S.C. § 651(b).

to

preserve

our

Consistent with that purpose,

Section 5(a) of the OSH Act mandates that:
Each employer (1) shall furnish to each of
his employees employment and a place of
employment which are free from recognized
hazards that are causing or are likely to
cause death or serious physical harm to his
employees;
(2)
shall
comply
with
occupational
safety
and
health
standards . . . and all rules, regulations,
and orders issued pursuant to this chapter
which are applicable to his own actions and
conduct.

5

human

29 U.S.C. § 654(a).

So that the Department of Labor may carry

out the purposes of the OSH Act, Section 8(a) of the OSH Act
authorizes the Secretary of Labor to inspect and investigate
workplaces.

29 U.S.C. § 657(a).

Section 8(b) authorizes the

issuance of administrative subpoenas requiring “the attendance
and testimony of witnesses and the production of evidence under
oath.”

29 U.S.C. § 657(b).
The standard for determining the validity of a federal

agency’s administrative subpoena is set forth in the Supreme
Court’s opinion in United States v. Morton Salt Co., 338 U.S.
632, 70 S. Ct. 357, 94 L. Ed. 401 (1950).
standard,

an

administrative

subpoena

is

Under the Morton Salt
valid

if

“[1] the

inquiry is within the authority of the agency, [2] the demand is
not too indefinite and [3] the information sought is reasonably
relevant.”

In re McVane, 44 F.3d 1127, 1135 (2d Cir. 1995)

(emphasis in original) (quoting Morton Salt, 338 U.S. at 642);
see also United States v. Amalgamated Life Ins. Co., 534 F.
Supp. 676, 679 (S.D.N.Y. 1982).

The standard is based on the

concept that “[a]n administrative agency . . . ’has a power of
inquisition’ akin to that of a grand jury, which it may exercise
‘merely on suspicion that the law is being violated, or even
just because it wants assurance that it is not.’”

McVane, 44

F.3d at 1135 (quoting Morton Salt, 338 U.S. at 642-43).

6

The Second Circuit has cautioned that “[t]he courts’
role in a proceeding to enforce an administrative subpoena is
‘extremely limited.’”

Id. (quoting NLRB v. C.C.C. Assoc., Inc.,

306 F.2d 534, 538 (2d Cir. 1962)).

“A subpoena that satisfies

[the Morton Salt] criteria will be enforced unless the party
opposing

enforcement

unreasonable,
purposes,

or

‘or

burdensome.’”

demonstrates

issued
that

in

bad

that

faith

compliance

or

the
for

would

be

subpoena
other

is

improper

‘unnecessarily

NLRB v. Am. Med. Response, Inc., 438 F.3d 188,

192 (2d Cir. 2006) (quoting RNR Enters., Inc. v. SEC, 122 F.3d
93, 96 (2d Cir. 1997)).
The Department of Labor undoubtedly has the authority
to

issue

administrative

investigation.
Cir.

1981)

subpoenas

during

the

course

of

an

Donovan v. Mehlenbacher, 652 F.2d 228, 230 (2d

(citation

omitted).

Additionally,

the

court

“defer[s] to the agency’s appraisal of relevancy, which ‘must be
accepted so long as it is not obviously wrong.’”

McVane, 44

F.3d at 1135 (quoting Resolution Trust Corp. v. Walde, 18 F.3d
943, 946-47 (D.C. Cir. 1994)).
sought

is

agency’s

determined

The relevance of the information

“against

investigation,

the

‘which

general

necessarily

purposes

of

the

presupposes

an

inquiry into the permissible range of investigation under the
statute.’”

Id. (quoting Linde Thomson Langworthy Kohn & Van

7

Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1516 (D.C.
Cir. 1993).
An affidavit from a government official will suffice
“to

establish

a

prima

facie

requirements have been met.”

showing

that

[the

Morton

Salt]

Id. at 136 (citing United States

v. Stuart, 489 U.S. 353, 360, 109 S. Ct. 1183, 1188, 103 L. Ed.
2d 388 (1989); United States v. Comley, 890 F.2d 539, 541-42
(1st

Cir.

1989)).

administrative

subpoena

Ultimately,
is

the

directed

party
has

to

the

demonstrating that the subpoena is unreasonable.

whom

the

burden

of

Id. at 135

(citing FTC v. Rockefeller, 591 F.2d 182, 190 (2d Cir. 1979)).
B.

Application
Petitioner argues that the following demands contained

in the Subpoena Duces Tecum are invalid because they fail to
meet the Morton Salt standard:
(1)

Documents reflecting all individuals
who have performed services of any kind
for Long Island Precast, Inc. and/or
all of its subsidiaries to include full
name, address, phone number, employment
dates, position, and rate of pay.
(Note: This includes full-time, parttime,
temporary,
secretarial/support
staff, and management personnel.);

(2)

Payroll records for all employees for
that period showing hours worked and
wages paid;

(3)

Cash
disbursement
records
for
all
employees, including any employee paid
partially or entirely off-the-books;
8

(4)

With respect to anyone with a financial
interest in or ownership of Long Island
Precast,
Inc.,
documents
reflecting
name, address, phone number, title, and
length of time in business;

(5)

Complete list of all powered industrial
trucks (forklifts) owned and operated
by Long Island Precast, Inc. . . .;

(6)

Complete list of all powered industrial
truck (forklift) attachments . . . .

(7)

Copies
of
all
written
tests,
evaluations,
training
records,
and
certification records for all of Long
Island
Precast,
Inc.’s
current
employee(s) that have been trained
and/or are qualified to certify powered
industrial truck (forklift) operators;

(8)

Copies of any and all written tests,
evaluations,
training
records,
and
certification records for all of Long
Island Precast, Inc.’s current powered
industrial truck (forklift) operators;

(9)

Copies
of any and all records or
documentation from any other powered
industrial truck manufacturer(s) upon
which
any
attachment
is
either
temporarily or permanently affixed to a
powered
industrial
truck, which are
owned and operated
by Long Island
Precast, Inc.;

(10) List of all personnel that conduct
"Hookerman" and/or rigging duties when
powered industrial trucks (forklifts)
are used for outbound and inbound
shipment of materials and/or products;
(11) Copy of CAD (Computer Aided Drafting)
or construction drawing(s), depicting
the plan and elevation views, for the
4’ leeching galley.
(Note:
If this
9

information
is
proprietary,
documents accordingly.);

mark

(12) Copy of any and all invoice(s), bill(s)
of lading, or itemized list of the
products that were being taken from the
storage
yard
and
loaded
onto
the
outbound truck at the time of the
accident.
(13) Copies of any and all invoice(s), bill
of lading(s), or itemized
list of
products taken from the storage yard
and loaded onto trucks for outbound
shipment(s) on June 5, 2014 using the
Hyster Forklift, Model # H360XL /
Serial
#
D019D03130X,
and
Hyster
Forklift, Model # H360HD / Serial # EOJ
9E01915A,
with
the
fixed
boom
attachment(s)
as
depicted
in
Attachment 3.
(Zabell Affirm Ex. A.)
Long Island Precast first argues that OSHA does not
have

the

authority

to

subpoena

these

documents

because,

according to Long Island Precast, Section 8(b) of the OSH Act
limits OSHA’s inquiry to evidence related solely to Mendoza’s
accident.
Island

(Pet’r’s Reply Br. at 3.)

Precast

appears

to

argue

In other words, Long
that,

because

OSHA’s

investigation was prompted by Mendoza’s workplace accident, any
subsequent
initial

inquiry.

reflects
role.

administrative

a

complete

This

subpoena
argument

is
is

misunderstanding

forever

fixed

incorrect.
of

OSHA’s

to

this

First,

it

investigatory

As the Supreme Court explained in Morton Salt, “[w]hen

investigative and accusatory duties are delegated by statute to
10

an administrative body, it . . . may take steps to inform itself
as to whether there is probable violation of the law.”
at 643.

338 U.S.

The Supreme Court expounded on the investigatory role

of federal agencies such as OSHA as follows:
The only power that is involved here is the
power to get information from those who best
can give it and who are most interested in
not doing so.
Because judicial power is
reluctant if not unable to summon evidence
until it is shown to be relevant to issues
in litigation, it does not follow that an
administrative agency charged with seeing
that the laws are enforced may not have and
exercise powers of original inquiry. It has
a power of inquisition, if one chooses to
call it that, which is not derived from the
judicial function.
It is more analogous to
the Grand Jury, which does not depend on a
case or controversy for power to get
evidence but can investigate merely on
suspicion that the law is being violated, or
even just because it wants assurance that it
is not.
When investigative and accusatory
duties are delegated by statute to an
administrative body, it, too, may take steps
to inform itself as to whether there is
probable violation of the law.
Morton Salt, 338 U.S. at 642-43 (emphasis added).
Morton

Salt,

OSHA

does

have

the

authority

Thus, under
to

issue

administrative subpoenas seeking documents beyond the subject
matter of the initial accident report so long as the information
sought is relevant to any inquiry that the Department of Labor
is authorized to undertake.

See, e.g., Dole v. Trinity Indus.,

Inc.,

(3d

904

F.2d

867,

874

Cir.

1990)

(ordering

“full

enforcement” of a subpoena duces tecum “issued [by OSHA] in
11

connection

with

a

limited

workplace

inspection

following

an

employee complaint” even though the information sought was not
relevant to the employee complaint because “[i]t is enough that
the

information

sought

is

relevant

to

any

inquiry

that

the

Secretary is authorized by law to undertake”).
Second, Long Island Precast’s argument disregards that
the

CSHO

observed

and

learned

of

several

other

additional

hazards that were separate and apart from Mendoza’s accident,
including an employee riding on the side of a forklift, that
other employees routinely accessed elevated product stacks by
climbing the face of the product rather than using a ladder, and
that

there

Precast’s

were

several

forklifts.

deficiencies
These

are

in

two

precisely

of

Long

the

Island

types

of

observations that would give rise to a “suspicion that the law
is being violated” and permit OSHA to “take steps to inform
itself as to whether there is probable violation of the law.”
Morton Salt, 338 U.S. at 643.
Thus, having determined that OSHA had the authority to
issue the administrative subpoena here, the question is whether
the

demands

are

relevant,

are

not

too

indefinite,

reasonable.

See Donovan, 652 F.2d at 231.

finds

each

that

of

OSHA’s

demands

are

and

are

Here, the Court
relevant

to

its

investigation of purported hazards the CSHO observed during his
on-site

inspections,

with

the

exception
12

of

the

first

demand

listed above, which seeks documents “reflecting all individuals
who have performed services of any kind for Long Island Precast,
Inc.”

This

request

should

be

limited

to

information

and

documents related to Long Island Precast’s employees.
Aside from that limitation, the Court finds that the
requests

are

not

too

indefinite

or

unreasonably

burdensome.

Each request specifically identifies the information sought and
many of the requests are limited to a specific period of time.
Cf. Herman v. Avondale Shipyard, No. 98-CV-3267, 1999 WL 13937,
at

*3

(E.D.

La.

Jan.

13,

1999)

(finding

OSHA

demand

“too

indefinite” because it specifically sought “‘any other relevant
information’” (quoting demand)).

The Court also finds that Long

Island Precast has not met its burden of demonstrating that any
of the demands are unreasonably burdensome.

Long Island Precast

fails to provide any compelling evidence that OSHA’s demands
will seriously disrupt or hinder its business operations other
than counsel’s unsupported assertions in a reply brief that Long
Island Precast is a “relatively small business” and that OSHA
already has access to the information sought.
suffice.

This does not

See Am. Med., 438 F.3d at 193 n.4 (noting that “courts

have refused to modify investigative subpoenas unless compliance
threatens
operations

to
of

unduly
a

disrupt

business.”

or

seriously

(internal

citation omitted)).
13

hinder

quotation

normal

marks

and

Accordingly, Long Island Precast’s motion to quash the
Subpoena Duces Tecum is DENIED except that the first document
demand listed above shall be limited to information relating
only to Long Island Precast employees.
II.

Subpoenas Ad Testificandum
Long Island Precast also argues that the Subpoenas Ad

Testificandum

seeking

testimony

from

Long

Island

Precast’s

president, manager, and sales manager are invalid, and therefore
should be quashed, because OSHA did not tender witness fees and
mileage

simultaneously

with

service

of

the

subpoenas.

Zabell Affirm. ¶¶ 14-16; Pet’r’s Reply Br. at 6-7.)

(See

The Court

disagrees.
Section 8(b) of the OSH Act states:
In making his inspections and investigations
under this chapter the Secretary may require
the attendance and testimony of witnesses
and the production of evidence under oath.
Witnesses shall be paid the same fees and
mileage that are paid witnesses in the
courts of the United States.
29 U.S.C. § 657(b).

Here, there is no dispute that OSHA did not

tender witness fees and mileage.

The issue is whether OSHA’s

failure to tender witness fees and mileage simultaneously with
service of the subpoenas renders them invalid.
Long Island Precast argues that fees and mileage must
be

tendered

at

the

time

of

service.

In

support

of

this

argument, Long Island Precast relies on Federal Rule of Civil
14

Procedure 45, which plainly requires simultaneous tendering of
witness

fees

and

mileage

with

a

subpoena.

FED. R. CIV. P.

45(b)(1); see also Song v. Dreamtouch, No. 01-CV-0386, 2001 WL
487413, at *7 (S.D.N.Y. May 8, 2001) (“Where no fee is tendered
with the service of a subpoena requiring a witness’ attendance,
the service is invalid.”).

However, the Federal Rules of Civil

Procedure only “govern the procedure in all civil actions and
proceedings in the United States district courts . . . ,”
R.

CIV.

P.

suggesting

1,

and

that

Long

Rule

Island

45’s

Precast

service

cites

no

requirements

FED.

authority
apply

to

administrative subpoenas issued by OSHA pursuant to the OSH Act.
The

Court

declines

to

impose

such

requirements

here.

Accordingly, Long Island Precast’s motion to quash the Subpoenas
Ad Testificandum on the ground of improper service is DENIED.
This is not to say, however, that OSHA is not required to pay
witness fees and mileage for a subpoena requiring a witness’
attendance

because

Section

8(b)

of

the

OSH

requires OSHA to pay such fees and mileage.
§ 657(b).

Act

explicitly

See 29 U.S.C.

Rather, the Court only finds that service of the

service of the Subpoenas Ad Testificandum was not improper.
CONCLUSION
For

the

foregoing

reasons,

Long

Island

Precast’s

motion to quash the administrative subpoenas is GRANTED IN PART
and DENIED IN PART.

The Court finds that the Subpoenas Ad
15

Testificandum

and

the

Subpoena

Duces

Tecum

are

fully

enforceable, except that the first document demand of Attachment
#1 to the Subpoena Duces Tecum shall be limited to information
relating only to employees of Long Island Precast.
Precast

is

further

ORDERED

to

comply

with

the

Long Island
Subpoenas

Ad

Testificandum and the Subpoena Duces Tecum no later than ten
(10) days after the entry of this Memorandum and Order.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

July
29 , 2014
Central Islip, New York

16