Petition for Writ of Certiorari — Herman v. L. R. Willson & Sons, Inc.

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No. 4 8 18 § JUL e 7 5008

In the Supreme Court of the Units Baws

OCTOBER TERM, 1997

ALEXIS M. HERMAN, SECRETARY OF LABOR,

PETITIONER

L.R. WILLSON AND Sons, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN

Solicitor General

Counsel of Record

: EDWIN S. KNEEDLER

M*RVIN KRISLOV Deputy Solicitor General

Deputy Solicitor for

. . EDWARD C. DUMONT

N , Ope , ‘ ~ » .

ational Operations Assistant to the Solicitor

ALLEN H. FELDMAN General

Associate Solicitor Department of Justice

NATHANIEL I. SPILLER Washington, D.C. 20530-0001

Deputy Associate Solicitor (202) 514-2217

EDWARD D. SIEGER

Attorney

Department of Labor

Washington, D.C. 20210

QUESTIONS PRESENTED

Section 5(a)(2) of the Occupational Safety and

Health Act of 1970, 29 U.S.C. 654(a)(2), provides that

covered employers “shall comply with occupational

safety and health standards promulgated under” the

Act. Section 17(k) of the Act, 29 U.S.C. 666(k), classi-

fies a violation of the Act as “serious” if it creates a

substantial risk of death or serious physical harm,

“unless the employer did not, and could not with the

exercise of reasonable diligence, know of the presence

of the violation.” The questions presented are:

1, Whether the Secretary must establish, as part

of her affirmative case charging even a non-“serious”

violation of Section 5(a)(2), that an employer knew or

should have known of the existence of a violation.

2. Whether an employer’s claim that violation of an

applicable standard resulted from “unpreventable

employee misconduct” is an affirmative defense, as to

which the employer must bear the burden of persua-

sion.

3. Whether an employer’s claim that it did not

know, and could not with the exercise of reasonable

diligence have known, of the existence of a violation is

likewise an affirmative defense to classification of a

violation as “serious” under Section 17(k).

(1)

PARTIES TO THE PROCEEDING

In addition to the parties listed in the caption, the

Occupational Safety and Health Review Commission

was named as a respondent in the court of appeals.

See App., infra, 1a; see also id. at 14a.

TABLE OF CONTENTS

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Statutory and regulatory provisions involved .............

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Reasons for granting the petition .........cccccccccscoceoes-s....

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TABLE OF AUTHORITIES

Cases:

Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534

a BOD 8

Austin Bldg. Co. v. OSHRC, 647 F.2d 1063

Se I Od 16

Brennan v. OSHRC (Alsea Lumber), 511 F.2d

RR I OID a 16, 17

Brock v. L.E. Myers Co., 818 F.2d 1270 (6th Cir.),

cert. denied, 484 U.S. 989 (1987) ......ccccccccecsececeses 15, 17

Capital Elec. Line Builders of Kansas, Inc. v.

Marshall, 678 F.2d 128 (10th Cir. 1982) .............. 16, 17

Carlisle Equip. Co. v. United States Sec’y of Labor,

ig enon Behe adh net. Sk, } SSE SEER RIO 17

Conerete Pipe & Prods. v. Construction Laborers

Pension Trust, 508 U.S. 602 RMN Sittbidiesiece cca. 14

D.A. Collins Constr. Co. v. Secretary of Labor,

RAE Wee Ce CP, TOU coco ccacs 15, 18

(III)

Sate Sp Leg ale agit ae ee a ne

Cases—Continued: Page

Danco Constr. Co. v. OSHRC, 586 F.2d 1243 (8th

Cle, TDTB). svvicacccnsreconiscrscncheseniteenseaicdieicbibadenoens 16, 17

Daniel Int'l Corp. v. OSHRC, 683 F.2d 361

CUR Gos CORR, ROGRD. nncsvivcsncascccsiadsinesesickscntinenaiaboneesbesies 15

Director, OWCP v. Greenwich Collieries, 512 U.S.

DOT CIGD vis soincstviismcicniicnideninaminnnaiaians 9, 11

Dunlop v. Rockwell Int'l, 540 F.2d 1283 (6th Cir.

RTD eisniicichsisesievsseceiseaknbinanbuiansiniupageranmenabedeneanthiocien 17

Faragher v. City of Boca Raton, No. 97-282

Ca FR SIE sncncnncsvtchacncicplibinvagiesinianctangiigies 10, 13, 14

Forging Indus. Ass’n v. Secretary of Labor, 773

B20 AGRE COG OR. TBD) icccvsncecsincccissaspepcntccarssenees 16

H.B. Zachry Co. v. OSHRC, 638 F.2d 812 (5th

COA BEBE) wcssiniconnssansucsenssnatedilegs upvebcasinlicssstakeaseniniiuis 15-16

L.E. Myers Co. v. Secretary of Labor, 484 U.S.

SOD TTD sininciicssicenannisidevendinedathindpsiniiessdbneniatceabine 7, 17-18

Lavine v. Milne, 424 U.S. 577 (1976) ...........sceeeeeees 18

Martin v. OSHRC, 499 U.S. 144 (1991) ................ 9

NLRB v. Transportation Management Corp.,

GRE UTS... SER CERI) scsiractaavasiscnsadiisthcis shcsritesincss 10-11, 14

New York State Elec. & Gas Corp. v. Secretary

of Labor, 88 F.3d 98 (2d Cir. 1996) ...............+. 12, 16-17

Ocean Elec. Corp. v. Secretary of Labor, 594

FG SOG CER CR. TOTO) sosevisasteinidicereticinsdices 6, 7, 12, 17

P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100

CRE CORE, TOT) vnecse sasccessvintccsuntsdacstbimhcandasiocens 12, 15, 18

Panhandle Producers & Royalty Owners Ass’n v.

Economic Regulatory Admin., 822 F.2d 1105

CE, BO BIE ves soantierincncictctlactcientbobincebabeaginetesions 15

Pennsylvania Power & Light Co. v. OSHRC, 737

F Da BOO TA Ce, SO sicacenccicriessactutiicnsnicavecianenane 16, 17

Secretary of Labor v. Ocean Elec. Corp., 3 0.S.H.

Cas. (BNA) 1705 (OSHRC 1975), rev’d in part,

504 FB BOG 66th Cir, TOT) sicisciecscicccscvincsicsersesconcs 13

Secretary of Labor v. Prestressed Systems, Inc.,

9 O.S.H. Cas. (BNA) 1864 (OSHRC 1981) .............. 17

Case—Continued: Page

Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980) .... 13

Constitution, statutes and regulations:

ate A IE OU Gc 4

Civil Rights Act of 1964, Pub. L. No. 94-552,

Tit. VII, 78 Stat. 258, 42 U.S.C. 2000e ................... 13

Occupational Safety and Health Act of 1970,

Oe SE NWO OB ii 2-3, 7

§ 2(b), 29 U.S.C. 6510D) .......cccccceccccesssees 8, 12, 18, 19

§ 2(b)(1), 29 U.S.C. 651(D)(1) oo... cececcscccscceoeeeses, 13

SO UBS, G6) oc 8, 10

§ 5(a)(2), 29 U.S.C. 654(a)(2) ocececcecccccccococeeeees 14

Me er, ON 8

oboe i oe SOE Tae 4

ee ee a 8, 10

$ a), 29 U.S.C. 65B(a) o...ececccececosessscsococeseses., 8

MS OD adi 8

§ 10(a), 29 U.S.C. 659(a) ooo... .cececcccssccssscoeceses.. 3, 8

REG Si OD 9,18

S 330 2) UO. OO) 9,18

. MUR Oe 9

B Be Oe tees ON whiten i 2, 8, 10, 11

$ 17(a), 29 U.S.C. 666(a) .3......cccccccsescoos.s.... 3, 9, 11

B UMD), BO USC. GOOD) oon cecacsvccscccciccecsccess. 8

$ 17(C), 29 U.S.C. 666(C) ....cecccccccccesccesoecceseese, 8

§ 17(k), 29 U.S.C. 666(k) ......ccccceccocsses.. 9, 11, 14, 16

Adee MIO Saiewslasheti olen: cen seasietictistiokicics cs ue 9

si iccas csetoes yc ee Oe a TT 9

29 C.F.R.:

Section 1926.750(b)(1)(ii) .....ceccccccccceseceseseeeeess... 2

‘itedetoet Sl xsecncte, So TI a eae 9

Sections 2200.91-2200.92 .....c.c.cccececssssssssecceseceses., 9

Miscellaneous: Page

54 Fed. Reg. (1989):

i TOE cusinvinserervescnntekannvonenesniachiuamaasaniaontansereeaiven 12

Bo. BORO. .rccscsvcesecresssoorsscesverevcnsoussenensasesesoosscoeeses 12

59 Fed. Reg. (1994)

Be GID oo vccsccncesorserensssssocnvvccnastenneceseescsnivasosensnenes 10

Ba GUD vccssnivacsccenevesonesensnbnessusenceeshessesbuabevevenases 10, 12

OSHA Field Operations Manual, Ch. 5, § E ............. 10

S. Rep. No. 1282, 91st Cong., 2d Sess. (1970) ............ 14

2A:N. Singer, Sutherland Statutory Construction

CE WR TNO i paaisaxcecccnckedeicincnschatvtiekisuncepnbibdioase 15

In the Supreme Court of the United States

OCTOBER TERM, 1997

No.

ALEXIs M, HERMAN, SECRETARY OF LABOR,

PETITIONER

L.R. WILLSON AND Sons, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Secretary of

Labor, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-

13a) is reported at 134 F.3d 1235. The decision of the

Occupational Safety and Health Review Commission

(App., infra, 15a-40a) is reported at 17 O.S.H. Cas.

(BNA) 2059 and 1995-1997 O0.S.H. Dec. (CCH) q 31,262.

The decision of the administrative law judge (ALJ)

(App., infra, 41a-65a) is unreported.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

January 28, 1998. A petition for rehearing was denied

on March 27, 1998. App., infra, 66a-67a. On June 17,

1998, the Chief Justice extended the time within

which to file a petition for a writ of certiorari to and

including July 27, 1998. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Sections 5 and 17 of the Occupational Safety and ,

Health Act of 1970, 29 U.S.C. 654 and 666, and the Sec-

retary of Labor’s safety standard concerning fa!! pro-

tection for steel erection, 29 C.F.R. 1926.750(b)(1)(ii),

are reproduced at App., infra, 68a-72a.

STATEMENT

1. Respondent L.R. Willson and Sons was engaged

to perform steel erection work related to the renova-

tion of the Orange County Civic Center in Orlando,

Florida. App., infra, 46a. An Occupational Safety anu

Health Administration (OSHA) inspector observed

and videotaped two workers, later identified as re-

spondent’s employees, working about 80 feet above the

ground without fall protection. Jd. at 47a-48a. One of

the workers, Randall Manley, was a foreman who was

responsible for instructing members of his work crew

on their assignments and for ensuring that the crew

obeyed respondent’s safety policies. Jd. at 48a, 55a-

57a.

The Secretary, through an OSHA inspector, cited

respondent for violating 29 C.F.R. 1926.750(b)(1)(ii), a

safety standard promulgated by the Secretary under

the Occupational Safety and Health Act of 1970 (the .

Act), 29 U.S.C. 651 et seq. That standard requires the

use of safety nets during work on certain types of

structures if the potential fall distance exceeds two

stories or 25 feet. App., infra, 58a; see id. at 72a.'

Having recently cited respondent for a number of

alleged violations of the Act, including one involving

fall protection (see id. at 46a-47a, 61a-62a), the Secre-

tary characterized this violation as “willful” within

the meaning of 29 U.S.C. 666(a), and notified respon-

dent that she proposed to assess a civil penalty of

$56,000. Id. at 58a; C.A. App. 9; see 29 U.S.C. 659(a).

Respondent contested both the citation and the

proposed penalty.

2. An administrative law judge (ALJ), acting for

the Occupational Safety and Health Review Commis-

sion (OSHRC) (see 29 U.S.C. 659(c), 661(j)) and follow-

ing Commission precedent, found that the Secretary

had established a violation of the fall-protection stan-

dard by proving (1) the applicability of the fall protec-

tion standard, (2) failure to comply with the standard,

(3) employee exposure to a hazard caused by the non-

compliance, and (4) respondent’s “actual or construc-

tive knowledge of the violation (i.e., [that respondent]

either knew or with the exercise of reasonable dili-

gence could have known, of the violative conditions).”

' As a matter of enforcement policy, OSHA does not cite

employers for failing to provide nets so long as they use some

system that offers equivalent or better fall protection. In this

case, respondent generally used a system of fall-protection

cables, to which employees were required to “tie off” while

working at elevations above ten feet. See App., infra, 48a, 55a.

Although that system is acceptable in principle, in this instance

Manley “directej [a subordinate] to accompany him to work in

an area where the fall protection cable had not been strung.”

Id. at 55a.

App., infra, 52a; see id. at 52a-58a.? With respect to

respondent’s “actual or constructive knowledge,” the

ALJ reasoned that Manley was a supervisory em-

ployee whose knowledge of the violation was properly

imputed to respondent. Jd. at 55a-58a.

The ALJ next considered respondent’s “affirmative

defense that any violation it committed was the result

of unpreventable employee misconduct.” App., infra,

58a; see id. at 58a-60a. Again applying OSHRC prece-

dent, the ALJ observed that to establish that defense

respondent was required to prove (1) that it had estab-

lished work rules designed to prevent. the violation;

(2) that those rules had been adequately communi-

cated to its employees; and (8) that it had taken steps

to discover violations, and had effectively enforced the

rules when violations were discovered. Jd. at 58a.

Although the ALJ found that respondent could estab-

lish the first two elements of the defense (which the

Secretary did not dispute), see id. at 58a-59a, she

credited Manley’s testimony that he expected to be

disciplined by respondent for violating fall-protection

rules “if [an] OSHA [inspector] was on the job,” but

that “{iJf OSHA wasn’t on the job, it’s a completely

different story” (id. at 59a). Concluding that Man-

ley’s admission “provide[d] insight into [respondent’s]

attitude towards enforcement, especially coming from

2 Respondent objected to the admission of videotape evi-

dence of the violation at issue on the ground that it was ob-

tained in violation of the Fourth Amendment and of Section 8

of the Act, 29 U.S.C. 657. See App., infra, 48a-5la. That argu-

ment was rejected by the ALJ (ibid.), the OSHRC (id. at 17a-

26a; but see id. at 33a-40a (Comm’r Montoya, concurring in

disposition but dissenting on this point)), and the court of

appeals (id. at 4a-10a). We therefore do not address that

evidentiary issue here.

a supervisory employee,” the ALJ agreed with the

Secretary that respondent had “failed to establish

that its work rules were effectively enforced,” and

that its “unpreventable employee misconduct” de-

fense must therefore fail. Jd. at 60a.

The ALJ disagreed, however, with the Secretary’s

characterization of respondent’s violation as “will-

ful.” App., infra, 60a-63a. Although the ALJ recog-

nized that Manley, who participated in the violation at

issue, was a supervisory employee, and that respon-

dent had notice of previous fall-protection violations

involving its workers, she concluded that “[t]he re-

cord [did] not demonstrate that [respondent] exhibited

either intentional disregard for the Act, or plain

indifference to its employees’ safety,” and that the

Secretary had therefore “failed to establish that

lrespondent’s] violation * * * was willful.” Jd. at

61a-63a. Noting that in this case two workers were

exposed for 45 minutes to “a fall hazard of at least 75

feet, which would have resulted almost certainly in

death had they fallen,” the ALJ imposed a penalty of

$7,000—the maximum authorized for a “serious”

violation. Jd. at 68a-64a.

3. The OSHRC exercised its discretion to review

specified aspects of the ALJ’s decision, and affirmed

her disposition of the case. App., infra, 41a-42a

(orders directing review), 15a-40a (Commission opin-

ion). Although the bulk of the Commission’s opinion

addressed a different issue (see note 2, supra), in part

it rejected the Secretary’s argument that the ALJ

had improperly characterized the violation as “seri-

ous” rather than “willful.” App., infra, 16a, 26a. The

Commission agreed that the Secretary had made out

“a prima facie case of willfulness” by “establish[ing]

that a supervisory employee knowingly violated the

a Ai tig Ne I a tis nn jor eng ans bed het Nae Ee i ST

fall protection standards.” Jd. at 27a-28a. It con-

cluded, however, that although respondent “should

have supervised its employees more closely,” the com-

pany’s “good faith efforts in enforcing its safety rules

were sufficient to support a finding that the violation

was not willful.” Jd. at 3la. Although it recognized

that reservations about respondent’s enforcement of

its policies had led the ALJ to reject the company’s

“unpreventable employee misconduct” defense, the

Commssion held that “(t]he failure to prove th{at]

defense to the violation * * * does not preclude the

employer from establishing the good faith defense to a

willful characterization of the violation.” Jd. at 29a

n.14,

4, With respect to the issues pertinent here, the

court of appeals reversed. App., infra, la-13a; see note

2, supra. Relying on its previous decision in Ocean

Electric Corp. v. Secretary of Labor, 594 F.2d 396 (4th

Cir. 1979), the court held that, “despite a finding of

knowledge of [a] violation on the part of a supervisory

employee, the [Secretary bears] the burden of proving

that the supervisory employee’s acts were not un-

foreseeable or unpreventable.” App., infra, 10a. Con-

flating the issues of employer “knowledge” as part of

the Secretary’s case in chief and “unpréventable em-

ployee misconduct” as an affirmative defense, the

court concluded that the Commission in this case had

“incorrectly placed on [respondent] the burden of

showing that the conduct of [its employees] was un-

foreseeable or unpreventable.” Jd. at 10a-12a.

The court acknowleged the position of several other

circuits “that unpreventable employee misconduct ‘is

an affirmative defense that an employer must plead

and prove’” (App., infra, lla & n.29), but it concluded

that its own precedent and cases from the Third and

Tenth Circuits “clearly agree[d] that such must be

disproved by the Secretary in [her] case-in-chief” (id.

at lla & n.30). Finding Ocean “lectric’s reasoning

“consistent with the clear intent %f the Act,” which

“did not intend [the] employer to be [an] insurer of

employee safety,” the court “reaffirm[ed] its applica-

tion” in the Fourth Circuit. Jd. at 12a & n.31.2 Be-

cause the Commission had “placed the burden of

showing ‘good faith efforts to comply with the fall

protection standards’ squarely on” respondent (id. at

10a-lla, quoting id. at 28a (OSHRC opinion)), the

court reversed the Commission’s order and remanded

for further proceedings. Id. at 11a, 13a.

REASONS FOR GRANTING THE PETITION

The court of appeals’ decision reflects and perpetu-

ates the “confusing patchwork of conflicting ap-

proaches” that prevails in the lower courts on

fundamental questions concerning the burden of

persuasion in proceedings to enforce compliance with

federal workplace health and safety standards. See

L.E. Myers Co. v. Secretary of Labor, 484 U.S. 989,

990 (1987) (White & O’Connor, JJ., dissenting from de-

nial of certiorari). This case would provide an appro-

priate vehicle for this Court’s review and resolution

of those important questions.

1. Congress enacted the Occupational Safety and

Health Act of 1970, 29 U.S.C. 651 et seq., “to assure so

far as possible every working man and woman in the

8 Judge Campbell of the First Circuit, sitting by designa-

tion, concurred separately on the ground that Ocean Electric

was “controlling precedent in [the Fourth] Circuit.” App.,

infra, la, 18a. “As a visitor,” he saw “no occasion to decide,

and [did] not decide,” whether Ocean Electric’s reasoning was

correct or should be “reaffirm[ed].” Jd. at 18a.

Nation safe and healthful working conditions.” 29

U.S.C. 651(b). The Act requires covered employers to

“comply with occupational safety and health stan-

dards promulgated” by the Secretary under the Act,

and more generally to furnish every employee

- “employment and a place cf employment which are

free from recognized hazards that are causing or are

likely to cause death or serious physical harm.” 29

U.S.C. 654(a); see also 29 U.S.C. 655 (providing for

Secretary’s promulgation of standards). Employees

are also required to comply with promulgated stan-

dards, but only employers may be cited for violating

the Act. 29 U.S.C. 654(b), 658-659, 666; Atlantic &

Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 552-555

(3d Cir. 1976).

When the Secretary cites an employer, she re-

quires abatement of the violation and generally pro-

poses the assessment of a penalty. 29 U.S.C. 658(a),

659(a). The Act provides that for each violation that

is “specifically determined not to be of a serious

nature,” a penalty of up to $7,000 “may” be assessed,

while for each “serious” violation such a penalty

“shall” be assessed. 29 U.S.C. 666(b)-(c). A violation

is “serious,” under the Act, :

if there is a substantial probability that death or

serious physical harm could result from a condi-

tion which exists, or from one or more practices,

means, methods, operations, or processes which

have been adopted or are in use, in [the] place of

employment unless the employer did not, and could

not with the exercise of reasonable diligence,

know of the presence of the violation.

29 U.S.C. 666(k). For each “willful{}” or “repeated |”

violation, the Act provides for a penaity of up to

$70,000. 29 U.S.C. 666(a).

An employer may contest the Secretary’s citation

or the penalty she proposes to assess, or both, and

obtain a hearing before an administrative law judge of

the Occupational Safety and Health Review Commis-

sion, an adjudicatory body created by the Act and

independent of the Secretary. 29 U.S.C. 659(¢c), 661;

see generally Martin vy. OSHRC, 499 U.S. 144, 147-

148 (1991). The ALJ’s “report” becomes a final order

of the Commission unless the Commission, on peti-

tion by the employer or the Secretary or on the

motion of any Commissioner, directs further review

of any or all issues. 29 U.S.C. 661(j); see 29 C.F.R.

2200.90(d), 2200.91-2200.92. The Commission’s final

decision is subject to review in the court of appeals

for the circuit in which the violation occurred or in

which the employer has its principal office (or, on the

employer's petition, in the District of Columbia

Circuit). 29 U.S.C. 660(a) and (b).

2.a. Under these statutory provisions, the proper

course of proceedings in a case like this one is, in the

Seretary’s view, relatively straightforward. An em-

ployer who contests the Secretary’s citation is

entitled to an administrative hearing, and there is no

question that at that hearing the Secretary bears the

burden of proving the existence of a prima facie

violation of the Act. See 29 U.S.C. 659(c) (hearings to

be conducted in accordance with 5 U.S.C. 554); 5

U.S.C, 556(d); Director, OWCP v. Greenwich Collier-

tes, 512 U.S. 267, 276 (1994). Under the Act, that

initial burden is discharged if the Secretary demon-

strates noncompliance, in work carried out by or on

behalf of the employer, with an applicable health or

safety standard promulgated in accordance with the

Act. 29 U.S.C. 654(a), 658, 666.

Once the Secretary has made out her prima facie

case of liability under the Act, the Secretary and the

OSHRC agree that a cited employer should be able to

avoid liability by establishing that a particular viola-

tion resulted from “unpreventable employee miscon-

duct.” See, e.g., 59 Fed. Reg. 4320, 4849 (1994) (pre-

amble to final rule governing electric power gen-

eration, transmission, and distribution facilities)

(“[(OSHA] recognizes unpreventable employee mis-

conduct as an affirmative defense to a citation, and

OSHA’s policy is not to issue a citation where the

employer has fulfilled his or her responsibilities to

inform the employee of an adequate work rule and to

enforce that rule uniformly,” citing OSHA Field Op-

erations Manual, Ch. 5, § E); App., infra, 58a (ALJ’s

decision). As articulated in OSHRC precedent, that

defense requires an employer to prove (1) that it has

established work rules designed to prevent the viola-

tion; (2) that those rules have been adequately com-

municated to its employees; and (3) that it has taken

steps to discover violations, and has effectively en-

forced its rules when violations were discovered.

App., infra, 58a. If an employer can establish the

existence of those background circumstances, it is

not held liable under the Act for an aberrant employee

action in violation of company rules and OSHA safety

standards. Compare Faragher v. City of Boca Raton,

No. 97-282 (June 26, 1998), slip op. 28-30. Because such

“unpreventable employee misconduct” is an affirma-

tive defense, however, the employer properly bears

the burden of raising it, introducing supporting evi-

dence, and persuading the trier of fact that it applies.

Compare NLRB vy. Transportation Management

Corp., 462 U.S. 398, 401-403 (1983); see Greenwich

Collieries, 512 U.S. at 278.

If the Secretary establishes the existence of a

violation and the employer fails to establish that it

resulted from unpreventable misconduct, there re-

mains the further question whether the established

violation is properly classified as willful, repeated,

serious, or non-serious. See 29 U.S.C. 666. There is

no dispute that the Secretary bears the initial burden

of establishing that a violation is “willful[]” or

“repeated[]” within the meaning of 29 U.S.C. 666(a),

or “serious” within the meaning of Section 666(k).

The “unless” language of Section 666(k) indicates,

however, that it is the employer’s responsibility to

allege and prove that it “did not, and could not with

the exercise of reasonable diligence, know of the

presence of the violation,” if it wishes to avoid, on that

basis, a determination that a potentially life-threaten-

ing violation was “serious.”* Moreover, that statu-

tory language, which appears only in the provision

defining what constitutes a “serious” violation,

makes clear that the issue of employer knowledge is

not relevant at the antecedent stage of determining

‘ As this case demonstrates, the OSHRC has adopted a

similar structure for assessing claims that a violation involving

a supervisor should be treated as “willful.” Although “willful

conduct by an employee in a supervisory capacity constitutes a

prima facie case of willfulness against his or her employer,”

the employer’s overall “good faith effort to comply with a

standard or eliminate a hazard * * * may constitute a defense

to willfulness.” App., infra, 27a. The Secretary does not chal-

lenge here the OSHRC's ultimate determination that respon-

dent’s violation, although “serious,” was not “willful.” Jd. at

dla. .

whether the Secretary has established her prima

facie case of violation vel non.°

b. The court of appeals accordingly erred in hold-

ing (App., infra, 10a-12a) that the Secretary bears the

burden of proving, as part of her case-in-chief, that

employee acts in violation of the Act were “not un-

foreseeable or unpreventable.”

Most importantly, the court failed to recognize that

the Secretary and the OSHRC have permissibly rec-

ognized “unpreventable employee misconduct” only as

an affirmative defense to liability under the Act. As

various courts of appeals have noted, the Act’s de-

clared goal of ensuring safe workplace conditions “so

far as possible” (29 U.S.C. 651(b)) suggests that Con-

gress did not intend the Act to be administered as a

strict liability scheme. See, e.g., P. Gioioso & Sons,

Inc. v. OSHRC, 115 F.3d 100, 109 (1st Cir. 1997);

Ocean Elec. Corp. v. Secretary of Labor, 594 F.2d 396,

399 (4th Cir. 1979); see also 59 Fed. Reg. at 4349.

Moreover, in the Secretary’s view, allowing an em-

ployer to defend against a citation by establishing

that it took all reasonable steps to prevent the

violation encourages employers to develop and enforce

effective safety programs, which is consistent with

the Act’s overall goal of preventing accidents before

they happen. See 54 Fed. Reg. 3904, 3910 (1989)

5 The Secretary disagrees, to that extent, with the ALJ’s

statement of the elements of the prima facie case. App., infra,

52a; see also New York State Elec. & Gas Corp. v. Secretary of

Labor, 88 F.3d 98, 106-108 (2d Cir. 1996) (discussing this issue).

Although that statement follows OSHRC precedent, it conflicts

with the plain terms of the Act, which specifically address the

relevance of employer knowledge or negligence, but only in the

context of distinguishing “serious” from non-“serious” viola-

tions.

(OSHA’s Safety and Health Program Management

Guidelines); Secretary of Labor v. Ocean Elec. Corp.,

3 0.S.H. Cas. (BNA) 1705, 1706-1707 (OSHRC 1975)

(“A rule which encourages diligence rather than

renders it irrelevant is to be preferred.”), rev’d as to

burden of proof, 594 F.2d 396 (4th Cir. 1979); see also

Whirlpool Corp. v. Marshall, 445 U.S. 1, 12 (1980)

(“the [Act’s] remedial orientation is prophylactic in

nature”); compare Faragher, slip op. 28 (Title VII’s

“primary objective,’ like that of any statute meant to

influence primary conduct, is not to provide redress

but to avoid harm.”).®

The Secretary and the OSHRC have therefore

agreed that an employer should be able to avoid liabil-

ity under the Act if it can demonstrate the conditions

specified by the OSHRC in articulating the “unpre-

ventable employee misconduct” defense. See 54 Fed.

Reg. at 3910. Because, however, that formulation of

the basis for avoiding liability rests on what are

essentially policy-based judgments concerning the

appropriate interpretation and administration of the

Act (see, e.g., Ocean Elec., 3 O.S.H. Cas. (BNA) at

1706-1707), the Secretary and the OSHRC have rea-

sonably treated it as an affirmative defense that must

be pleaded and proved by the employer. Compare

® See also 29 U.S.C. 651(b) and (b)(1) (declaring the purpose

and policy of Congress to assure “so far as possible every work-

ing man and woman * * * gafe and healthful working

conditions * * * by encouraging employers and employees in

their efforts to reduce the number of occupational safety and

health hazards at their places of employment and to stimulate

employers and employees to institute new and to perfect exist-

ing programs for providing safe and healthful working con-

ditions”),

ee ee ee

Transportation Management, 462 U.S. at 401-4083; cf.

Faragher, slip op. 28-30.'

Apart from this central error, the court of appeals’

opinion illustrates the fundamental confusion that

has too often prevailed in interpreting the enforce-

ment provisions of the Act. The court’s brief discus-

sion conflates the “unpreventable employee miscon-

duct” issue with the separate, though related, issue of

employer “knowledge” of a violation. See App., infra,

10a. As we have explained, the “knowledge” issue

properly arises, under the text of the Act, only in

determining whether a particular violation is to be

characterized as “serious” under 29 U.S.C. 666(k).

Compare 29 U.S.C. 654(a)(2) (imposing on employers a

facially absolute duty to comply with health and

safety standards promulgated under the Act). More-

over, in that context, the statutory language, which

specifies that a violation is “serious” under certain

circumstances “unless” the employer did not know of

its existence, makes clear that excusable lack of

7 Treating “employee misconduct” as an affirmative de-

fense is also consistent with traditional criteria for assigning

the risk of nonpersuasion. The employer will, for example,

inevitably have better access than the Secretary to relevant

information concerning the nature and adequacy of its work-

place safety program. See Concrete Pipe & Prods. v. Con-

struction Laborers Pension Trust, 508 U.S. 602, 626 (1993).

Moreover, it makes sense to assign the burden of persuasion to

the party whose position is less consistent with ordinary expec-

tations; and because it is reasonable to assume that employees

normally follow rules that are adequately communicated and

enforced, a violation of a health or safety standard is more

likely to have resulted from an employer's failure to meet its

duty to “assure compliance by [its] own employees,” S. Rep.

No. 1282, 91st Cong., 2d Sess. 10 (1970), than from “unpreven-

table misconduct.”

knowledge is a defense that an employer may raise in

order to avoid a determination that a particular

violation was “serious.” See Panhandle Producers &

Royalty Owners Ass’n v. Economic Regulatory

Admin., 822 F.2d 1105, 1111 (D.C. Cir. 1987) (use of

term “unless” ordinarily means that the party

claiming the benefit of the exception has the burden of

proving it); 2A N. Singer, Sutherland Statutory

Construction § 47.11 (5th ed. 1992),

Thus, under the language of the Act, it is never the

Secretary’s burden to show that an employer knew or

should have known that its employees were violating

an OSHA standard. At a minimum, proof of knowl-

edge cannot plausibly be viewed as part of the Secre-

tary’s “case-in-chief” on liability (App., infra, 11a),

because the Act explicitly makes knowledge relevant

only to the subsidiary issue of whether an established

violation is or is not to be characterized as “serious.”

The court of appeals erred both in failing to distin-

guish those issues, and in nonetheless implicitly

resolving them against the Secretary.

3. The decision in this case reflects and perpetu-

ates longstanding conflicts among the courts of

appeals concerning the proper allocation of burdens of

persuasion in enforcement proceedings under the Act.

Most courts of appeals have agreed with the Secre-

tary and the OSHRC that “unpreventable employee

misconduct” is an affirmative defense on which the

employer bears the burden of proof. See D.A. Collins

Constr. Co. v. Secretary of Labor, 117 F.3d 691, 695 (2d

Cir. 1997); P. Gioioso & Sons v. OSHRC, 115 F.3d 100,

109 (1st Cir. 1997); Brock v. L.E. Myers Co., 818 F.2d

1270, 1276 (6th Cir.), cert. denied, 484 U.S. 989 (1987);

Daniel Int'l Corp. v. OSHRC, 683 F.2d 361, 364 (11th

Cir. 1982); H.B. Zachry Co. v. OSHRC, 638 F.2d 812,

818 (5th Cir. 1981); see also Danco Constr. Co. v.

OSHRC, 586 F.2d 1243, 1246-1247 & n.6 (8th Cir.

1978). The Third and Ninth Circuits have required

employers to bear a burden of production if the Secre-

tary makes a prima facie showing that a violation was

foreseeable, but they impose the ultimate burden of

persuasion on the Secretary. See Pennsylvania

Power & Light Co. v. OSHRC, 737 F.2d 350, 357-358

(3d Cir. 1984); Brennan v. OSHRC (Alsea Lumber),

511 F.2d 1189, 1142-1148 & n.5 (9th Cir. 1975). The

Tenth Circuit has required the Secretary to prove

the absence of employee misconduct. See Capital

Elec. Line Builders of Kansas, Inc. v. Marshall, 678

F.2d 128, 129-130 (1982); but see Austin Bldg. Co. v.

OSHRC, 647 F.2d 1063, 1068 (1981) (“[t]he employer

may defend by showing that the violation was an

unforeseeable occurrence.”). And the Fourth Circuit,

although it had previously characterized unpreven-

table misconduct as a “defense” (Forging Indus.

Ass'n v. Secretary of Labor, 773 F.2d 1436, 1450 (1985)

(en banc)), has now “reaffirm[ed]” its position that the

Secretary bears the burden of proving that an em-

ployee’s acts were “not unforeseeable or unpreven-

table.” App., infra, 10a, 12a; see id. at 66a-67a (deny-

ing suggestion of rehearing en banc).

The lower courts have also adopted varying ap-

proaches to the question whether an employer knew

or should have known of the existence of a violation,

either as part of the Secretary’s initial prima facie

case or in determining whether a particular violation

is properly classified as “serious” under 29 U.S.C.

666(k). The Second Circuit requires that the Secre-

tary prove employer knowledge, but it allows the

knowledge of a supervisor who commits a violation to

be imputed tothe employer. New York State Elec. &

Gas Corp. v. Secretary of Labor, 88 F.3d 98, 105, 109-

110 (2d Cir. 1996). The Third, Fourth, and Tenth

Circuits require the Secretary to prove knowledge,

but do not allow her to make that showing by dem-

onstrating a supervisor’s involvement in the viola-

tion. See Ocean Elec., 594 F.2d at 398-399, 403; Penn-

sylvania Power, 737 F.2d at 357-358; Capital Elec.,

678 F.2d at 129-130. The Sixth and Eighth Circuits

require the Secretary to prove employer knowledge,

and may or may not allow imputation of the knowledge

of a supervisor responsible for a violation. See

Carlisle Equip. Co. v. United States Sec’y of Labor,

24 F.3d 790, 792-793 (6th Cir. 1994); L.E. Myers, 818

F.2d at 1276-1277; Danco, 586 F.2d at 1246-1247. The

Sixth and Ninth Circuits, like the OSHRC, have ex-

pressly required the Secretary to establish employer

knowledge in order to make out a prima facie case of

either a serious or a non-serious violation. See

Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1289-1292

(6th Cir. 1976) (but see id. at 1295-1296 (Edwards, J.,

dissenting)); Brennan, 511 F.2d at 1142-1145;

Secretary of Labor v. Prestressed Systems, Inc., 9

O.S.H. Cas. (BNA) 1864, 1868-1871 (OSHRC 1981).

The courts, however, generally have not distin-

guished clearly among the requirements of the Secre-

tary’s initial prima facie case, the “unpreventable

employee misconduct” defense, and the “knowledge”

issue under Section 666(k); and no court has convine-

ingly reconciled a requirement that the Secretary

prove employer knowledge with the plain language of

the Act.

Ten years ago, the cases in the courts of appeals al-

ready revealed a “confusing patchwork of conflicting

approaches” to the related issues of employee “mis-

conduct” and employer “knowledge” in cases under

the Act. L.E. Myers Co., 484 U.S. at 990 (White &

O’Connor, JJ., dissenting from denial of certiorari).

Although we opposed review in L.E. Myers for rea-

sons specific to that case, we agreed then that the

“significant and continuing conflict” in the lower

courts “[{might] well require resolution by this

Court.” 87-246 Br. in Opp. at 7; see id. at 7-13 (dis-

cussing conflicting decisions, but noting that the

burden-of-proof issue appeared not to have affected the

court of appeals’ disposition of the case).° Since that

time, the relevant conflicts have deepened and

solidified. See App., infra, 1la-12a; D.A. Collins, 117

F.3d at 695; P. Gioioso & Sons, 115 F.3d at 109. In our

judgment, this case provides an appropriate opportu-

nity for this Court to consider the fundamental

burden-of-proof issues that arise in OSHA enfurce-

ment proceedings.

Those issues are important ones, arising in one

form or another in virtually every enforcement pro-

ceeding under the Act. See L.E. Myers Co., 484 U.S.

at 990 (White & O’Connor, JJ., dissenting from denial

of certiorari) (“the issue is central to OSHA’s en-

forcement efforts”); Lavine v. Milne, 424 U.S. 577,

585 (1976) (“[wJhere the burden of proof lies on a given

issue is, of course, rarely without consequence and

frequently may be dispositive”). The usual confusion

engendered by conflict among the circuits is, more-

over, heightened in this instance because an ag-

grieved employer may generally seek review of an

OSHRC decision in any of three circuits—where the

violation occurred, where the employer is headquar-

tered, or in the District of Columbia. 29 U.S.C.

8 We have provided respondent with a copy of our brief in

opposition in L.E. Myers.

660(a); see also id. § 660(b) (Secretary may seek re-

view in circuit of violation or of employer’s headquar-

ters).” The present state of the law in many circuits

creates unjustifiable obstacles to the Secretary’s en-

forcement of requirements designed to protect work-

place safety and health; and uncertainty in the law

disserves, in any event, the powerful interest in cer-

tainty and uniformity with respect to the interpreta-

tion of an Act intended to protect “every working man

and woman in the Nation” (29 U.S.C. 651(b)). The

questions presented here therefore warrant review

and resolution by this Court.

® This case, for example, involves a violation in Florida by a

company headquartered in Maryland. App., infra, 46a-47a.

The employer therefore had the option of seeking review in

the Eleventh Circuit, where case law favors the Secretary; the

Fourth Circuit, where case law favors the employer; or the

District of Columbia Circuit, which has not clearly addressed

the relevant issues.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

EDWIN S. KNEEDLER

MARVIN KRISLOV Deputy Solicitor General

Deputy Solicitor for E C. DUM

National Operations DWARD &. YUMONT

Assistant to the Solicitor

ALLEN H. FELDMAN General

Associate Solicitor

NATHANIEL I. SPILLER

Deputy Associate Solicitor

EDWARD D. SIEGER

Attorney

Department of Labor

JULY 1998

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1492

L.R. WILLSON AND Sons, INCORPORATED, PETITIONER

Uv.

OCCUPATIONAL SAFETY & HEALTH REVIEW

COMMISSION; SECRETARY OF LABOR, RESPONDENTS

ON PETITION FOR REVIEW OF AN ORDER OF

THE OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION (94-1546)

[Argued Oct. 31, 1997]

Decided Jan. 28, 1998

[Amended June 24, 1998]

Before: RUSSELL and Luttic, Circuit Judges, and

CAMPBELL, Senior Circuit Judge of the

United States Court of Appeals for the

First Circuit, sitting by designation.

OPINION

RUSSELL, Circuit Judge:

L.R. Willson and Sons, Inc. (“Willson”) appeals the

Occupational Safety and Health Review Commis-

sion’s affirmance of a citation by the Secretary of

Labor (the “Secretary”) for violation of the Occupa-

(la)

tional Safety and Health Act of 1970 (“the Act”).'

The Secretary issued the citation as a result of an

inspection of one of Willson’s construction worksites

in Orlando, Florida that revealed that Willson employ-

ees were working on structural steel more than 80

feet above ground without using the “fall protective

devices” mandated by 29 C.F.R. § 1926.750(b)(1)(ii).?

An Administrative Law Judge (“ALJ”) of the Occupa-

tional Safety and Health Administration (“OSHA”)

held an evidentiary hearing on the matter, concluded

that Willson had indeed violated the regulation, and

assessed a fine of $7,000. The [Occupational] Safety

and Health Review Commission (the “Commission”)

affirmed the ALJ’s findings, and this appeal followed.

Because we find that the Commission erred in

placing the burden of showing the unforeseeability or

preventability of the violation in question on Willson,

we reverse.

1 29 U.S.C, §§ 651-678 (1994).

2 This regulation states in part that: “On buildings or struc-

tures not adaptable to temporary floors, and where scaffolds

are not used, safety nets shall be installed and maintained

whenever the potential fall distance exceeds two stories or 25

feet.”

The inspection that resulted in the Secretary’s

citation took place on April 29, 1994, and was precipi-

tated by the observations of Joseph Dear, Assistant

Secretary of Labor for Occupational Safety and

Health. Dear, whose room at the Peabody Hotel was

across the street from Willson’s worksite in Orlando,

observed from his window employees on the site

working without fall protection. Dear telephoned

Ronald Anderson, a local OSHA “compliance officer,”

and told him of what he had Seen, and Anderson came

to make an inspection of the site. However, rather

than going immediately to the Willson site, Anderson

obtained permission from the Peabody Hotel to

videotape the activities on the site from the hotel’s

roof. For approximately 50 minutes, Anderson video-

taped the activities at the site, which included two

employees working at a height of about 80 feet

without adequate safety cables, through a “16” power

camera lens. Anderson then went to the site, pre-

sented his credentials, and was allowed to interview

the two employees he had observed.

During the interview and at the hearing before the

ALJ, the two employees, Randall Manley (“Manley”)

and Donald McVay (“McVay”), admitted to violating

the OSHA regulation, and Manley, who said he con-

sidered himself a foreman on the site, stated that he

realized safety cables were required, but that they

had not been installed on certain parts of the site. In

addition, Manley stated his belief that the cables that

had been installed were unsuitable.

In rebuttal, James Willson, Willson’s vice president

for field operations, testified that the area where

Manley and McVay were observed working without

safety cables had not been opened for work, and that

the two had begun work there without authorization

from a supervisor. However, Willson also admitted

that Manley was a “leadman” on the job, and that as

such, he was responsible for making sure that his

crew members observed all relevant safety regula-

tions.

The ALJ found that Manley and McVay were work-

ing at a height of at least 75 feet without adequate

protection, and that Manley’s knowledge of that lack

of protection was imputed to Willson as a result of

Manley’s supervisory authority. The ALJ also re-

jected Willson’s defense of unforeseeable employee

misconduct.

Il.

Willson asserts several grounds for reversing the

Commission’s order. We address each in turn.

Willson first claims that the ALJ erred in admit-

ting Anderson’s videotape of Manley and McVay

because the tape was made in violation of the Fourth

Amendment to the U.S. Constitution. Since the pos-

sible application of the Fourth Amendment’s ex-

clusionary rule to this case involves a mixed question

of law and fact, we review this issue de novo.’

As Willson notes, the Fourth Amendment’s protec-

tion against unreasonable searches and seizures ex-

tends to commercial property,’ but, in addition, that

3 United States v. Gastiaburo, 16 F.3d 582, 585 (4th Cir.

1994).

4 Marshall v. Barlow’s, Inc., 436 U.S. 307, 311 (1978).

protection must be premised on a “reasonable expec-

tation of privacy.” Willson argues that it had such an

expectation with regard to the Orlando construction

site, and that therefore Anderson’s warrantless ob-

servation of that site was illegal. The Commission

found that there was no reasonable expectation of pri-

vacy because, “[aJnyone on the side of the [Peabody]

hotel facing the Civic Center could observe the

activities [on the Willson site]. . . .° We agree,

Although surveillance is a type of search that can

invoke Fourth Amendment protections if performed

unreasonably, we hold that Anderson’s long-distance

observations were not unreasonable. What Ander-

son’s tape recorded was easily observable by anyone

on one of the hotel’s upper stories, which seems to fall

squarely within the basic Fourth Amendment princi-

ple, restated by this court in Tarantino v. Baker,’

that “a person has no ‘reasonable expectation of pri-

vacy’ when he leaves conditions permitting a curious

passerby to invade his ‘private space.’”8 In addition,

in addressing a similar situation in which an OSHA

compliance officer took still photographs of work at a

site before actually approaching the site and request-

ing an inspection, the Commission held that “there is

5 Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,

concurring).

6 J.A. at 325.

825 F.2d 772 (4th Cir. 1987).

8 Tarantino v. Baker, 825 F.2d 772, 776 (4th Cir. 1987)

(quoting United States v. Head, 783 F.2d 1422 (9th Cir. 1986)).

Although Tarantino involved a suit under 42 U.S.C. § 1983 and

thus inquired into whether the constitutional rule in question

was “clearly settled,” its discussion of what constitutes a “rea-

sonable expectation of privacy” is instructive.

no constitutional violation when an inspector makes

observations from areas on commercial premises that

are out of doors and not closed off to the public. . . .””

Although, as Willson points out in its brief, the roof

of the Peabody Hotel was not completely open to the

public, and Anderson did employ a high powered lens

in shooting the videotape, the crucial aspect of the

situation seems to be that Willson left the construc-

tion site open to observation from vantages outside its

control. As the inquiry should focus on what sort of

“expectation of privacy” Willson had, we believe that a

sustained view from a hotel across the street is

difficult to classify as an unreasonable intrusion into

Willson’s “private space.”” That this sustained view

was enhanced by the use of a telephoto camera lens

does not change this conclusion." Therefore, we hold

that there was no Fourth Amendment violation on

9 Secretary of Labor v. Concrete Constr. Co., 15 O.S.H.C.

1614, 1617 (1992).

10 See Marshall v. Western Waterproofing Co., 560 F.2d 947,

950-51 (8th Cir. 1977). The Marshall court held that there was

no Fourth Amendment violation in a case where an OSHA

inspector obtained access to a private building to view adjacent

repair scaffolding as “a person who exercises control over

premises may consent to a search and evidence gathered in

that search may be used against persons who did not consent.” —

Id. at 950 (citations omitted).

11 See Dow Chemical v. United States, 476 U.S. 227, 238

(1986) (EPA’s use of high-powered camera lenses in aerial sur-

veillance did not violate company’s reasonable expectation of

privacy because, despite the fact that “they undoubtedly give

EPA more detailed information than naked-eye views,” the

photographs “remain limited to an outline of the facility’s

buildings and equipment”). Such seems to be the case here.

which to base an exclusion of the surveillance video-

tape.

Willson also contends that the surveillance violated

§ 8(a) of the Act (“§ 8(a)”), Specifically, Willson ar-

gues that § 8(a) requires that an OSHA inspector

present his credentials before any “inspection” of a

“factory, plant, establishment, construction site, or

other area. . . .”" Willson contends that this

requirement extends to observations of such areas,

and that the surveillance thus violated § 8(a) because

Anderson did not present his credentials to the

“owner, operator, or agent in charge”” of the Willson

site. Again, we disagree with Willson’s argument,

and affirm the Commission’s holding on this issue.

As the Commission made clear in its decision, § 8(a)

is both broader and narrower in Scope than the

Fourth Amendment. It is broader in scope “because,

even when the employer has consented to a compli-

ance officer’s entry and thus waived any protection

under the Fourth Amendment, section 8(a)(2) may be

violated if, for example, the on-site inspection is not

conducted at reasonable times, within reasonable

limits, and in a reasonable manner.”™ In addition, the

Commission noted that § 8(a) is also narrower in

scope than the Fourth Amendment in that it requires

an actual entry onto a site before its protections are

invoked.” We believe that the Commission was cor-

rect in this characterization of § 8(a).

2 29 U.S.C. § 657(a)(1) (1994).

8 Id. § 657(a).

4 JA. at 327.

6 Td.

In full, § 8(a) provides that:

In order to carry out the purposes of this chapter,

the Secretary, upon presenting appropriate cre-

dentials to the owner, operator, or agent in charge,

is authorized—

(1) to enter without delay and at reasonable

times any factory, plant, establishment, con-

struction site, or other area, workplace or envi-

ronment where work is performed by an em-

ployee of an employer; and

(2) to inspect and investigate during regular

working hours and at other reasonable times,

and within reasonable limits and in a reason-

able manner, any such place of employment and

all pertinent conditions, structures, machines,

apparatus, devices, equipment, and materials

therein, and to question privately any such em-

ployer, owner, operator, agent, or employee.”

The Commission, at the Secretary’s urging, read §

8(a)(1) as focusing on the entrance onto a worksite,

and thus concluded that it does not apply to “off-site”

observations such as the one in this case. We agree.

As the legislative history of the Act makes clear, §

8(a) was designed “for government personnel to have

the right of entry in order to ascertain the safety and

health condition and status of compliance of any

covered employing establishment.”” With this pur-

pose in mind, the legislative history indicates that §

16 29 U.S.C. § 657(a) (1994).

7S. Rep. No. 91-1282 (1970), reprinted in 1970 U.S.C.C.A.N.

5177, 5187 (emphasis added).

8(a) deals with “the inspector’s presence” at a work-

site, and refers exclusively to “physical inspec-

tion{s]” of such sites.” Nothing in the statute or its

legislative history indicates that § 8(a)’s require-

ments apply to nontrespassory observations of work-

sites. In addition, as such an application would only

be found despite § 8(a)’s failure to speak “to the pre-

cise question at issue,” we must defer to the Secre-

tary’s clearly reasonable interpretation of that provi-

sion.” Therefore, we hold that Anderson’s surveil-

lance did not violate § 8(a).

Further, we find without merit Willson’s conten-

tion that the surveillance violated Willson’s “walk-

around rights”?! under § 8(e) of the Act (“§ 8(e)”).2

Like § 8(a), § 8(e) applies to “physical inspections,””

of worksites, and, as a result, “walk-around rights”

would also seem inapplicable to such long-distance

observations. We are unpersuaded by Willson’s

efforts to characterize the surveillance as an “hour

inspection,” and are of the opinion that § 8(e) uses the

term “physical inspection” carefully, intending to

denote an otherwise trespassory entrance onto the

8 Jd.

19 Chevron v. Natural Resources Defense Council, 467 U.S.

837, 842 (1984).

»® Id. at 844.

“1 “Walk-around rights” refers to the inspectee’s right to

have the OSHA inspector accompanied by one of the inspec-

tee’s employees during the inspection.

2229 U.S.C. § 657(e) (1994).

% S. Rep. No. 91-1282 (1970), reprinted in 1970 U.S.C.C.A.N.

5177, 5187.

10a

inspectee’s property. Thus, we find § 8(e) inapplicable

to this case.

Based on the foregoing, we hold that the ALJ

correctly admitted the surveillance videotape into

evidence.

Il.

Willson next argues that the Commission incor-

rectly placed on Willson the burden of showing that

the conduct of Manley and McVay was unforeseeable

or unpreventable. Specifically, Willson takes issue

with the Commission’s conclusion that, because a

“supervisory employee” committed the violations in

question, the knowledge of those violations should be

imputed to Willson, and that it was thus incumbent

upon Willson to “establish that it made good faith

efforts to comply with the fall protection standards.”™

Willson argues that this finding is contrary to clearly .

established law, and we agree.

In Ocean Electric Corp. v. Secretary of Labor” we

held that, despite a finding of knowledge of the

violation on the part of a supervisory employee, the

Commission bore the burden of proving that the

supervisory employee’s acts were not unforeseeable

or unpreventable.” In the present case, however, the

Commission ignored this precedent, and, having im-

puted knowledge of the violation because of Manley’s

“Leadman” position, placed the burden of showing

24 J.A. at 332.

% 594 F.2d 396 (4th Cir. 1979).

% Ocean Elec. Corp. v. Secretary of Labor, 594 F.2d 396, 401

(4th Cir. 1979).

lla

“good faith efforts to comply with the fall protection

standards” squarely on Willson.” Because we find

this burden-shifting in direct contravention of our

rule announced in Ocean Electric, we reverse the

Commission’s decision.”

Although some sister circuits have held that

unpreventable employee imisconduct “is an affirmative

defense that an employer must plead and prove,” this

circuit and others clearly agree that such must be

disproved by the Secretary in his case-in-chief.”

That the Secretary bears this burden is clearly the

“J.A. at 332. Significantly, the improper burden-shifting

complained of in Ocean Electric consisted of the Commission’s

requirement of a “showing by the employer that the supervi-

sory employee with knowledge of the violation was himself

adequately supervised with regard to safety matters.” Ocean

Elec., 594 F.2d at 401 (citations omitted). We find this require-

ment substantially similar to the one at issue in this case.

% The Secretary contends that Ocean Electric should not

apply here, as Manley was accompanied by McVay, who was

not a supervisory employee. However, in so doing the Secre-

tary ignores the fact that the ALJ in this case found the prima

focie case of a violation because of Manley’s status, and then

placed on Willson the burden of rebutting with the “affirmative

defense” of employee misconduct, and the Commission af-

firmed. J.A. at 289; 332.

* New York State Elec. & Gas Corp. v. Secretary of Labor,

88 F.3d 98, 107 (2d Cir. 1996) (holding that unforeseeability and

unpreventability are affirmative defenses and citing authority

from the First, Fifth, Sixth, Eighth, and Eleventh Circuits in

support of this proposition).

® See Ocean Elec., 594 F.2d at 401; Capital Elec. Line

Builders v. Marshall, 678 F.2d 128, 129 (10th Cir. 1982); Penn-

sylvania Power & Light Co. v. OSHRC, 737 F.2d 350, 358 (3d

Cir. 1984); Mountain States Tel. & Tel. Co. v. OSHRC, 623 F.2d

155 (10th Cir. 1980).

12a

law of this circuit per Ocean Electric, and we see no

reason to change that here.

Ocean Electric’s reasoning is consistent with the

clear intent of the Act.” Therefore, we reaffirm its

application in this circuit, and hold that the Commis-

sion’s burden-shifting in this case was error. Accord-

ingly, we reverse the Commission on this ground.

IV.

Willson also argues that the $7,000 fine levied by

the Secretary was excessive. However, as the Secre-

tary notes, this allegation is procedurally barred, as

29 U.S.C. § 660(a) clearly states that, “[nlo objection

that has not been urged before the Commission shall

be considered by the [reviewing] court, unless the

failure or neglect to urge such objection shall be

excused because of extraordinary circumstances.”™

As the fine in question was clearly a part of the ALJ’s

order,” it could have been raised before the Commis-

sion but was not.* Therefore, having found no extra-

ordinary circumstances to excuse this omission, we

hold that the fine cannot properly be considered here.

31 See Ocean Electric, 594 F.2d at 399 (Congress clearly did

not intend employer to be insurer of employee safety: rather,

employers are to promote such safety “as far as possible”

(quoting 29 U.S.C. § 651)).

® 29 U.S.C. § 660(a) (1994).

8 J.A. at 294,

* In its reply brief, Willson claims that the argument in its

brief before the Commission (not included in record) that the

ALJ was in error “not to vacate the citation in its entirety”

constitutes the presentment of the fine issue to the Commission.

We disagree.

13a

Vv.

Based on the foregoing, we reverse the Commis-

sion’s order, and remand the case for proceedings

consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

CAMPBELL, Senior Circuit Judge, concurring:

I agree with the court’s able opinion, but, in respect

to the determinative issue, I limit my agreement to

the fact that Ocean Electric Corp. v. Secretary of

Labor, 594 F.2d 396 (4th Cir. 1979), is controlling

precedent in this Circuit and appears in these

circumstances to be correctly applied in accordance

with its terms. As a visitor, I see no occasion to

decide, and do not decide, whether, as the opinion

states, “Ocean Electric’s reasoning is consistent with

the clear intent of the Act” and whether it is

desirable to “reaffirm its application in this circuit.”

l4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1492

94-1546

L. R. WILLSON AND SONS, INCORPORATED, PETITIONER,

OCCUPATIONAL SAFETY & HEALTH REVIEW

COMMISSION; SECRETARY OF LABOR RESPONDENTS

[Filed: June 19, 1998]

ORDER

The Secretary of Labor has filed an unopposed

motion to amend caption to add the Secretary as a

party-respondent.

The Court grants the motion to amend caption and

the Secretary of Labor is added as a party-respondent.

For the Court,

/s/ PATRICIA S. CONNOR

CLERK

15a

APPENDIX C

[SEAL OMITTED]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

1120 20TH STREET, N.W., NINTH FLOOR

WASHINGTON, DC 20036-3419

OSHRC Docket No. 94-1546

SECRETARY OF LABOR, COMPLAINANT

Vv.

L.R. WILLSON AND Sons, INC., RESPONDENT

DECISION

Before: WEISBERG, Chairman; MONTOYA, and

GUTTMAN, Commissioners.

BY THE COMMISSION:

The Occupational Safety and Health Administra-

tion (“OSHA”) issued a citation alleging that L.R.

Willson and Sons, Ince. (Willson”) committed a willful]

violation of the OSHA fall protection standards gov-

erning construction work. Willson contested the

citation, and a hearing was held before Administrative

Law Judge Nancy J. Spies, who affirmed the citation

but characterized the violation as serious rather than

willful.

16a

At issue on review are Willson’s arguments that

the manner in which the inspection was conducted

violated both the Fourth Amendment of the Constitu-

tion of the United States and section 8(a) of the Act,

29 U.S.C. § 657(a), and the Secretary’s argument that

the violation should have been characterized as will-

ful. Oral argument was held on whether the compli-

ance officer’s actions contravened any requirements

of the Fourth Amendment or section 8(a).' For the

reasons below, we affirm the judge.

Background.

Willson, a steel erection contractor based in

Maryland, was a subcontractor on the renovation of

the Orange County Civic Center in Orlando, Florida,

a building covering approximately 3,000,000 square

feet. The inspection that led to the citation resulted

from a telephone call to the local OSHA office’ by

Joseph A. Dear, then Assistant Secretary of Labor

for Occupational Safety and Health, who was staying

at a hotel across the street from the Civic Center.

From his hotel room, Assistant Secretary Dear ob-

served individuals working without fall protection at

a height of approximately 80 feet.

As a result of this phone call, a compliance officer

was sent to investigate. Before going to the worksite,

the compliance officer went to the hotel, where he got

permission to go to the hotel’s roof accompanied by a

hotel security officer. For approximately 50 minutes,

using a video camera with a 16-power zoom lens, the

! Because of the similarity of the issues presented, the

Commission heard oral argument in this case and in Regional

Scaffolding and Hoisting Co., Inc., No. 93-577, on the same

day.

17a

compliance officer videotaped two individuals without

fall protection working on structural steel beams

approximately 80 feet above the ground. When he

finished videotaping the employees, the compliance

officer went to the worksite, where he presented his

credentials to representatives of the general contrac-

tor and the steel erection prime contractor, who then

gathered representatives of Willson and the other

steel erection subcontractor. Eventually it was de-

termined that the two individuals the compliance

officer had videotaped were Willson employees and

that one of them was a foreman. When the employees

were called to the meeting, they admitted their activi-

ties. Based on the compliance officer’s observations

and the employees’ admissions, OSHA cited Willson

for a willful violation of fall protection standards. At

the hearing, the videotape was introduced into evi-

dence, and the compliance officer admitted that all of

his observations of the violative conduct had been

made through the viewfinder of the video camera.

Based on the videotape, the compliance officer’s testi-

mony, and the evidence given by other witnesses, the

judge found a serious but not willful violation,

On review, Willson argues that, because the compli-

ance officer did not give Willson any notice that he

was observing and videotaping the activities of its

employees before he entered the worksite, his ob-

servation of its worksite without notice violated both

the Fourth Amendment and section 8(a) of the Act.

The Fourth Amendment.

The Supreme Court has held that the Fourth

Amendment to the Constitution requires the Secre-

tary to obtain a warrant in order to conduct an

inspection without the consent of the employer whose

18a

workplace is being inspected.* Marshall v. Barlow’s,

Inc., 486 U.S. 307 (1978). However, “[w]hat a person

knowingly exposes to the public . . . is not a subject

of Fourth Amendment protection.” Katz v. United

States, 389 U.S. 347, 351 (1967). “What is observable

by the public is observable without a warrant by the

Government inspector as well.” Marshall v. Bar-

low’s, Inc., 436 U.S. at 315.2 The Fourth Amendment

protects against intrusions only into areas where an

individual has a reasonable expectation of privacy.

Whether there is a reasonable expectation of pri-

vacy is not necessarily determined by the location

from which the observations are made. For example,

police observations of a drug transaction taking place

2 The Fourth Amendment to the Constitution provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

3 Although the judge correctly found the videotape admissi-

ble, she relied on the “open fields” doctrine under the Fourth

Amendment. As the Supreme Court noted in Oliver v. United

States, 446 U.S. 170, 175 n.5 (1984), the open fields doctrine has

generated confusion. The Court stated that the term “open

fields” “may include any unoccupied or undeveloped area out-

side of the curtilage,” and explained that “[a]n open field need

be neither ‘open’ nor a ‘field’ as those terms are used in com-

mon speech. For example, . . . a thickly wooded area . . .

may be an open field as that term is used in construing the

Fourth Amendment.” Jd. at 180 n.11; see also, Dow Chemical

Co. v. United States, 476 U.S. 227, 236 (1986). In view of our

conclusion below that Willson had no reasonable expectation of

privacy in the activities at issue, we need not decide here

whether the “open fields” doctrine is properly applicable.

19a

on a public sidewalk, made from private property, are

permissible because the participants in the transac-

tion have no reasonable expectation of privacy for

their conduct in such a location. United States v.

Green, 670 F.2d 1148 (D.C. Cir. 1981) (observations

with binoculars from undisclosed surveillance loca-

tion of activities taking place in public view gave

police probable cause to arrest). The same principle

controls the situation in this case. Although some of

the compliance officer’s observations may have been

made from a location that was not accessible to the

general public, the part of this worksite where the

employees were observed walking the steel beams

without fall protection was open to public view. Any-

one on the side of the hotel facing the Civic Center

could observe the activities, as well as the occupants

of any other buildings within eyeshot and passersby

on the street. We therefore conclude that Willson

cannot claim that it had a “ Justifiable,’ a ‘reasonable,’

or a ‘legitimate expectation of privacy’ that has been

invaded by government action.” Smith v. Maryland,

442 U.S. 735, 740 (1979), Accordingly, we find no

violation of the Fourth Amendment.‘

Section 8(a) of the Act.

The parties dispute whether section 8(a) of the Act

prohibits the kind of conduct involved here, extended

4 We take issue with our concurring colleague’s conclusion

that our decision here leaves employers with no relief from

“covert inspections.” While, as we hold below, section 8(a) of

the Act does not apply to off-site observations, the require-

ments of the Fourth Amendment do apply to such conduct.

Accordingly, where the actions of an OSHA compliance officer

violate an employer’s reasonable expectation of privacy, the

employer will find solace in the Constitution,

20a

observations made from a location removed from the

worksite. In determining what a statute requires or

prohibits, we must start with the language of the

statute itself. Estate of Cowart v. Nicklos Drilling

Co., 505 U.S. 469, 475 (1992). Here, section 8(a) pro-

vides:

In order to carry out the purposes of this Act,

the Secretary, upon presenting appropriate cre-

dentials to the owner, operator, or agent in charge

is authorized—

(1) to enter without delay and at reasonable

times any factory, plant, establishment, con-

struction site, or other area, workplace, or envi-

ronment where work is performed by an em-

ployee of an employer; and

(2) to inspect and investigate during regu-

lar working hours and at other reasonable times,

and within reasonable limits and in a reasonable

manner, any such place of employment and all

pertinent conditions, structures, machines, appa-

ratus, devices, equipment, and materials therein,

and to question privately any such employer,

owner, operator, agent or employee.

In the Secretary’s view, the requirements of sec-

tion 8(a) are coextensive with those of the Fourth

Amendment, and section 8(a) is not violated when, as

we have held in this case, there has been no violation

of the Fourth Amendment. In Marshall v. Barlow’s,

Inc., the Supreme Court rejected the Secretary’s

argument that Congress had intended for section 8(a)

to permit an OSHA compliance officer to enter a

worksite and conduct a search without either a

warrant or its equivalent (e.g., consent). Today we

2la

state explicitly what has been implicit in our recent

decisions: the provisions of section 8(a) are not

coextensive with those of the Fourth Amendment.5

Section 8 is both broader and narrower than the

Fourth Amendment in its application. Section 8(a) is

broader than the Fourth Amendment because, even

when the employer has consented to a compliance

officer’s entry and thus waived any protection under

the Fourth Amendment, section 8(a)(2) may be vio-

lated if, for example, the on-site inspection is not

conducted at reasonable times, within reasonable

limits, and in a reasonable manner. It is narrower

because it applies only to physical inspections on the

worksite, while the Fourth Amendment may apply to

an off-site observation. We reach this conclusion

5 See, e.g., GEM Indus., Inc., 17 BNA OSHC 1184, 1993-95

CCH OSHD § 30,762 (No. 93-1122, 1995); Hamilton Fixture, 16

BNA OSHC 1073, 1078, 1993-95 CCH OSHD 30,034, p. 41,173

(No. 88-1720, 1993) (waiver of Fourth Amendment right to

require a warrant by consenting to inspection does not pre-

clude 8(a) defense), aff'd without published opinion, 28 F.3d

1213 (6th Cir. 1994); Adams Steel Erec., Inc., 13 BNA OSHC

1073, 1076, 1079, 1986-87 CCH OSHD 7 27,815, pp. 36,401, 36,403

(No. 77-3804, 1987). To the extent that Laclede Gas Co.,7 BNA

OSHC 1874, 1877, 1979 CCH OSHD 7 24,007, p. 29,153 (No.

76-3241, 1979), is inconsistent with this holding, it is overruled.

6 E.g., United States v. Taborda, 635 F.2d 131 (2d Cir. 1980)

(observation of premises through telescope from apartment

across the street with direct line of sight is a search to the

extent that objects could not be seen by naked eye); United

States v. Kim, 415 F. Supp. 1252 (D. Ha. 1976) (telescope ap-

proximately quarter-mile from apartment); Katz v. United

States, 389 U.S. 347 (1967) (electronic listening device attached

to exterior of telephone booth); see also United States v. Karo,

468 U.S. 705 (1984) (monitoring from remote location of beeper

inside can in home is a search).

22a

based on the plain language of section 8(a).’ By its

terms, section 8(a) authorizes the Secretary, upon

presentation of credentials, (1) to enter a workplace,

and (2) to inspect it, in that order. The introductory

clause in section 8 applies to both sections 8(a)(1) and

8(a)(2), which are joined by the conjunctive “and.”

The sequence in which §§ 8(a)(1) & (2) appear leads us

to conclude that Congress contemplated that the

Secretary would present his credentials, then enter

the worksite, then conduct the inspection.* There-

fore, we conclude that section 8(a) did not preclude the

compliance officer in this case from observing the

cited conditions from a location off the worksite

before he presented his credentials and entered the

worksite to conduct the inspection. Nor did the

statute require the compliance officer to enter the

premises “without delay” and present his credentials.

The statute simply authorizes the compliance officer,

subject to Fourth Amendment limitations set out in

Barlow’s, to enter the worksite without delay after he

has presented his credentials. Thus, the requirement

7 We note that, at oral argument, counsel for Willson could

cite no language in the Act or its legislative history indicating

that section 8(a) was intended to apply to off-site observations.

8 Indeed, although section 8(a)(2) refers to both inspections

and investigations, and our concurring colleague would not

limit 8(a) to activities occurring onsite, she provides no guid-

ance as to what, if any, off-site investigation she would permit

prior to the presentation of credentials. It is unclear, for

example, whether she would permit OSHA to examine photo-

graphs of conditions at a workplace brought to it by an em-

ployee making a complaint, and if so, on what legal basis under

8(a) she would draw this distinction. Moreover, the concur-

rence fails to identify the principles that would distinguish a

putatively unlawful section 8 off-site inspection from an unlaw-

ful search under the Fourth Amendment.

23a

in section 8(a)(1) that the compliance officer present

his credentials before commencing an inspection

applies only to physical inspections on the worksite.®

Like our colleague, we are troubled by the compli-

ance officer’s conduct in this case. However, we find

nothing in the statute or in the case law to suggest

that section 8(a) applies to off-site investigations.

Our concurring colleague’s reliance on Dow Chemi-

cal Co. v. United States, 476 U.S. 227 (1986), is mis-

placed. In Dow, the company contended, inter alia,

that the Environmental Protection Agency was pre-

cluded from aerial surveillance and photography of its

industrial complex by section 114(a) of the Clean Air

Act, 42 U.S.C. § 7414(a), which has wording similar to

that in section 8(a). Dow argued that the language in

section 114(a) requiring the presentation of creden-

tials before entry on the premises limited EPA’s

authority to conduct unannounced aerial observation.

Because the Court found that section 114(a) did not

limit off-site observation of the workplace, our col-

league jumps to the conclusion that the Court found

that section 114(a) “authorized” such observations.

She then states that the Court “must have consid-

ered” aerial photography to be an “inspection” encom-

passed by section 114(a) and subject to its require-

ments (e.g., the presentation of credentials). Accord-

ingly, she infers that off-site observation and

® In light of our conclusion that there was no violation of

either the Fourth Amendment or section 8(a) of the Act, we

need not determine whether it is appropriate to require an

employer to show actual prejudice before a remedy will be

afforded, or to decide what remedy would be appropriate for

an intentional violation of section 8(a).

24a

investigation by OSHA are also restricted by the

similar provisions of section 8(a) of the OSH Act.

To the contrary, the Court appears to have reached

precisely the same conclusion with respect to section

114(a) as we reach today regarding section 8(a). After

stating that regulatory or enforcement authority

“carries with it all the modes of inquiry and inves-

tigation traditionally employed or useful to execute

the authority granted,” 476 U.S. at 233, the Court

went on to find that there was no “suggestion in the

statute that the powers conferred by this section

[114(a) ] are intended to be exclusive.” 476 U.S. at 234.

Hence, while noting that as a grant of a right of entry

section 114(a) “appears to expand, not restrict, EPA’s

general powers to investigate,” the Court went on to

find that EPA, “as a regulatory and enforcement

agency, needs no explicit statutory provision to em-

ploy methods of observation commonly available to the

public at large” such as the aerial observation in

question. Jd. (emphasis added). Similarly, we find

today that while section 8(a) is a grant of authority to

OSHA for entry onto the work site under specified

limitations, it does not encompass or define such

other investigatory powers as OSHA may possess by

virtue of its statutory regulatory authority.

Willson argues, inter alia, that the compliance offi-

cer’s conduct violated the reasonableness require-

ment of section 8(a)(2) by videotaping the employees

for 50 minutes while they were exposed to an 80-foot

fall, instead of proceeding immediately to the work-

site and ending the hazard. While this activity does

not fall within the letter of section 8(a) because it

took place off the worksite, it does cause us great

concern.

25a

We do not consider it a desirable practice to leave

employees exposed to potentially fatal hazards for the

sake of further documenting a violation. Having

identified the violation specified in the complaint and

recorded it, the compliance officer nonetheless al-

lowed the employees to continue being exposed to a

fall of 80 feet for an additional 45 minutes while he

videotaped their activities.” The compliance officer’s

first duty was to the safety of the employees, but he

allowed them to remain exposed to a serious fall

hazard for close to an hour before he went to the

worksite and halted the practice. It is fortunate that

neither of the ironworkers fell while the compliance

officer videotaped. In our view, this type of delay is

contrary to the very purposes of the Act, making the

workplace safer, and we urge the Secretary to take

steps to prevent it in the future.”

At oral argument, the Secretary defended the

compliance officer’s conduct by asserting that it is

within the Secretary’s discretion to determine the

appropriate balance between collecting evidence of

violations and the immediate elimination of unsafe

situations. We agree. However, there is nothing in

the record that shows that the Secretary has exer-

were played before the judge indicated that she had seen all she

needed to see. We have viewed the tape and find nothing in

the last 40 minutes or so that adds to the Secretary’s case.

4 Even if it were shown that the compliance officer’s actions

violated the Secretary’s explicit written instructions governing

the conduct of an inspection, it would not afford the employer

a remedy, because OSHA’s internal procedural manuals do not

give substantive rights to an employer. Andrew Catapano

Ent., 17 BNA OSHC 1776, 1780, 1996 CCH OSHD 31,180, p.

43,604 (No. 90-50, 1996) (consolidated).

26a

cised her discretion by, for example, instructing

compliance officers on the factors to be weighed when

documenting an ongoing serious violation. In re-

sponse to questioning at cral argument, the Secre-

tary submitted excerpts from OSHA’s Field Inspec-

tion Reference Manual showing that she has in-

structed compliance officers to proceed to the work-

site as rapidly as possible in the case of an imminent

danger. However, since the circumstances here were

not characterized as an “imminent danger” under

Section 13 of the Act, 29 U.S.C. § 662, such instruc-

tions do not apply. In short, there is nothing in the

record to show that the Secretary has considered the

question in regard to those circumstances where

imminent danger is not presented, much less provided

guidance to compliance officers regarding such situa-

tions.

We do not endorse the course of action followed by

the compliance officer here or the Secretary’s appar-

ent failure to give guidance to her compliance

officers. We urge the Secretary to address this issue.

Willfulness.

The Secretary alleged that the violation was will-

ful. The judge found that it was serious but not

willful. Having examined the facts and circumstances

of the violation in light of the legal test for will-

fulness, we affirm the judge’s decision.

The Commission has described a willful viola-

tion as one “committed with intentional, knowing

or voluntary disregard for the requirements of the

Act, or with plain indifference to employee safety.”

A.P. O’Horo Co., 14 BNA OSHC 2004, 2012, 1991

CCH OSHD 29,223, p. 39,133 (No. 85-0369, 1991).

27a

See Babcock & Willcox Co. v. OSHRC, 622 F.2d

1160, 1167 (8d Cir. 1980); Frank Trey, Jr. v.

OSHRC, 519 F.2d 1200 (3d Cir. 1974). A willful vio-

lation is differentiated from others by an em-

ployer’s heightened awareness of the illegality of

the conduct or conditions and by a state of mind,

i.e., conscious disregard or plain indifference for

the safety and health of employees.

Falcon Steel Co., 16 BNA OSHC 1179, 1181, 1993-95

CCH OSHD 30,059, p. 41,330 (No. 89-2883, 1993). In

establishing that an employer knew of the Act’s

requirements and knowingly disregarded them, the

knowledge and conduct of a supervisory employee may

be imputed to the employer for purposes of finding

that the violation was willful. Conie Constr. Inc., 16

BNA OSHC 1870, 1872, 1993-95 CCH OSHD q 30,474,

p. 42,089 (No. 92-264, 1994), affd, 73 F.3d 382 (D.C. Cir.

1995). Thus, willful conduct by an employee in a

Supervisory capacity constitutes a prima facie case

of willfulness against his or her employer. V.J.P.

Structures, Inc., 16 BNA OSHC 1873, 1875, 1993-95

CCH OSHD 4 30,485, p. 42,109-10 (No. 91-1167, 1994),

However, a good faith effort to comply with a standard

or eliminate a hazard, even though the effort is not

entirely effective or complete, may constitute a de-

fense to willfulness. Id.; Williams Enterp., Inc., 18

BNA OSHC 1249, 1256-57, 1986-87 CCH OSHD 4

27,893, p. 36,589 (No. 85-355, 1987). The test of good

faith for these purposes is an objective one—whether

the employer’s belief concerning a factual matter or

concerning the interpretation of a rule was reason-

able under the circumstances. Id., 13 BNA OSHC at

1259, 1986-87 CCH OSHD at p. 36,591.

28a

The Secretary has established that a supervisory

employee knowingly violated the fall protection

standards. One of the employees observed by the

compliance officer held the job title of foreman, and he

admitted that he knew he was violating both Willson’s

rules and the OSHA standards.” This knowing dis-

regard for the requirements of the Act by a supervi-

sory employee may appropriately be imputed to Will-

son for purposes of establishing a willful violation.

V_LP. Structures, Inc., 16 BNA OSHC at 1875, 1993-95

CCH OSHD at p. 42,109-10. Therefore, to avoid a

finding of willfulness, Willson must establish that it

made good faith efforts to comply with the fall pro-

tection standards."

Willson had an excellent safety program that fo-

cussed on the use of fall protection. Because the

contract required that 90 per cent of its employees on

the job be hired locally, Willson had to use iron-

2 Willson’s vice president, Jim Willson, testified that, al-

though the employee was called a foreman, he was paid the

same wage as regular ironworkers and functioned more as a

leadman or crew leader than as a foreman. That evidence is

not dispositive, because an employee who has been delegated

authority over other employees, even if only temporarily, is

considered to be a supervisor for the purposes of imputing

knowledge to an employer. John H. Quinlan, 17 BNA OSHC

1194, 1196 n.2, 1993-95 CCH OSHD 4 30,749, p. 42,715 n.2 (No.

92-756, 1995).

8 Willson has argued that a major factor in the decision to

allege that this was a willful violation was that it was initiated

by the Assistant Secretary and that OSHA has put forth a

number of different reasons why the violation was willful,

subsequently admitting that some of them were unsupported.

Those arguments miss the point. We look at the facts in the

record and determine whether they fit within the legal frame-

work of a willful violation.

29a

workers who had not previously gone through its

general training program, so it sent its newly-hired

employees to a school in the area that was conducted

by the Associated Builders and Contractors. Willson

also put its new employees through the general

contractor’s safety training program and its own

safety training. In addition, Willson’s insurance car-

rier conducted safety training for its employees on

the site and outside safety consultants were brought

in to instruct the employees. Willson also held safety

meetings at least once a week, and the use of fall

protection was always stressed. The project safety

manager, who was called to testify by the Secretary,

stated that Willson is a safe steel erection company,

that it is interested in safety, and that it has an

effective safety program. The compliance officer

testified that very few steel erection companies have

a better written safety program than Willson.

OSHA’s area director agreed that Willson’s safety

program was adequately communicated to its employ-

ees. His only reservation was whether that program

was sufficiently enforced."

Willson had a progressive system of discipline be-

ginning with oral warnings and reprimands, pro-

gressing to written reprimands, and concluding with

firing. The foreman observed by the compliance

officer testified, “We knew it was 100-percent tie-off

4 This reservation was the reason the judge found that the

unpreventable employee misconduct affirmative defense to the

underlying violation was not proved. The failure to prove this

defense to the violation, however, does not preclude the em-

ployer from establishing the good faith defense to a willful

characterization of the violation.

30a

on the job,”” and said that employees were given oral

reprimands “all the time.” The foreman knew of two

Willson employees who had been warned that they

would be fired if they committed another violation.

On this job, Willson had issued at least three written

reprimands to employees for not using proper fall

protection, and it had fired employees for safety

violations. In addition, Mr. Willson, the company’s

highest official at the site, testified that he had

instructed the two employees in question to complete

the work on the level where they had previously been

working and had explicitly told them not to go into

the area where the compliance officer saw them until

safety cable to which employees could hook their

lanyards had been strung in that area.”

We recognize that, despite Willson’s safety pro-

gram, the violation not only occurred but went unde-

tected for nearly an hour. This apparently happened

because Mr. Willson had gathered all of Willson’s

supervisory employees in the company’s office trailer

to give them final instructions before he returned to

Maryland that afternoon. Although, according to the

compliance officer, the employees videotaped could be

seen from the ground, they were not visible from the

area of Willson’s trailer.

5 He even told the employee who was with him at the time

the compliance officer observed them to tie off, and the video-

tape does show that, although he did not tie off, the other em-

ployee stayed mostly in one location while the foreman walked

around on the beams without fall protection.

16 Safety cable had been erected in other work areas and was

supposed to have been installed in the area in question, but the

crane could not get to a location where it could hoist the cable

because trucks delivering construction supplies were blocking

the way.

3la

Although Willson should have supervised its employ-

ees more closely, the record shows that Willson made

a reasonable good faith effort to comply with the

Standard. As was the case in Chesapeake Operating

Co., 10 BNA OSHC 1790, 1795, 1982 CCH OSHD q

26,142, p. 32,918 (No. 78-1353, 1982), the conduct here

was untypical of Willson’s Supervisory personnel. We

therefore conclude that Willson’s good faith efforts in

enforcing its safety rules were sufficient to support a

finding that the violation was not willful.

Penalty.

a penalty of $7,000, the maximum permissible for a

Serious violation under the Act. On review, Willson

Order.

For the reasons given, we conclude that the inspec-

tion did not violate either the Fourth Amendment to

the Constitution or section 8(a) of the Act. We agree

32a

with the judge that the violation was correctly char-

acterized as serious rather than willful, and that a

penalty of $7,000 is appropriate.

/s/ STUART E. WEISBERG

STUART E. WEISBERG

Chairman

/s/ DANIEL GUTTMAN

DANIEL GUTTMAN

Commissioner

Dated: March 11, 1997

33a

MONTOYA, Commissioner, concurring:

By its decision today, the majority has cleared the

way for OSHA to conduct its inspections by stakeout.

I concur with their conclusion that L.R. Willson and

Sons, Inc. (“Willson”) has no interest in privacy that

is protected under current Fourth Amendment law. I

strongly disagree, however, with their conclusion

that the kind of surveillance activity engaged in by

the compliance officer here is permissible under

sections 8(a) and 8(e) of the Occupational Safety and

Health Act of 1970, 29 U.S.C. §§ 657(a) and (e). On the

authority of these sections, I would suppress the

evidence this compliance officer gained through

covert surveillance of Willson’s worksite. However, I

consider the compliance officer’s observations from

the worksite itself, and the admissions made by

Willson’s employees, sufficient to Support both the

violation found by the majority and their penalty

assessment. I therefore agree with their ultimate

decision to affirm Judge Spies’ disposition of this

citation.

Because the Fourth Amendment provides no rem-

edy for the covert surveillance the compliance officer

conducted of Willson’s worksite, then any remedy

available to Willson must lie in section 8 of the OSH

Act. The Secretary has argued that the provisions of

section 8 are coextensive with those of the Fourth

Amendment—that section & provides no remedies be-

yond those recognized under the Fourth Amendment.

Though the majority has rightly rejected that view, I

do not agree with their rationale. Indeed, I consider

the majority’s conclusion that section 8 protections

are at once “broader” than those of the Fourth

Amendment, yet “narrower” for the single purpose of

34a

exempting off-site inspections, to be a result-driven

“serrymander” of the most obvious sort. In my opin-

ion, Congress intended that these protections should

be broader than those of the Fourth Amendment for

all purposes.

The Commission has already determined that sec-

tion 8(a)(1) guarantees employers that inspections

will be conducted at “reasonable times, and within

reasonable limits, and in a reasonable manner.” When

OSHA deliberately violates these guarantees, then

the Commission can apply an appropriate sanction.

See Hamilton Fixture, 16 BNA OSHC 1078, 1078,

1993 CCH OSHD ] 30,034, p. 41,173 (No. 88-1720,

1993), aff'd without published opinion, 28 F.3d 1213

(6th Cir. 1994). It is only reasonable, then, that an

equivalent sanction is available when OSHA deliber-

ately violates the rights guaranteed in sections 8(a)

and 8&(e). Therefore, if an OSHA compliance officer

enters a worksite and deliberately conducts an in-

spection without first “presenting appropriate cre-

dentials to the owner, operator, or agent in charge,”

as required by section 8(a), some remedy must be

available to an employer. Also, some remedy must be

available if “a representative of the employer and a

representative authorized by his employees” is not

“given an opportunity to accompany” the OSHA com-

pliance officials, as required by 8(e) (known generally

as “walkaround rights”).

In my opinion, the compliance officer here inten-

tionally violated both of these provisions when he

began his inspection by conducting surveillance of the

worksite for the purpose of documenting violative

conduct. As the Supreme Court has recognized in the

Fourth Amendment context, a search does not nec-

35a

essarily involve “a physical intrusion into any given

enclosure.” Katz v. United States, 389 U.S. 347 353

(1967). See also United States v. Knotts, 460 U.S. 276

(1983) (approving surveillance of driver of automobile

by police using beepers, automobiles and helicopter);

and United States v,. Conner, 478 F.2d 1320 (7th Cir.

1973) (approving observations made by police from end

of alley through open garage door into automobile

repair shop). In Dow Chemical Co. v. United States,

476 U.S. 227 (1986), the Supreme Court analyzed the

inspection provisions in section 114(a) of the Clean

Air Act, 42 U.S.C. § 7414(a), and explicitly held that

“the use of aerial observation and photography

is within EPA’s statutory authority.” 476 U.S. at

232. For the Court to have made this holding, it must

have considered that the Environmental Protection

Agency was engaged in an inspection when it photo-

graphed Dow’s plant from a remote location.!7 Since

the operative provisions of section 114 of the Clean

Air Act read much like those of section 8 of the OSH

Act, I can only conclude that this compliance officer

was likewise engaged in an inspection when he

gathered evidence from the roof of the hotel. This

inspection was commenced in deliberate violation of

the requirements of sections 8(a) and 8(e).

" As with the compliance officer in this case, the Environ-

mental Protection Administration officials in Dow Chemical Co.

v. United States, 476 U.S. 227 (1986) presented no creditials

before beginning a remote surveillance. Unlike this case, how-

ever, Dow was decided on Fourth Amendment grounds alone.

The majority’s reading of Dow notwithstanding, the Court of-

fered no opinion as to whether the inspection provisions of

section 114(a), 42 U.S.C, § 7414(a), provide protections beyond

those of the Fourth Amendment.

36a

This does not mean that all observations made by

compliance officers before they present credentials or

provide walkaround rights are subject to sanction. As

the Commission has recently recognized, incidental

observations made while a compliance officer is ap-

proaching a worksite do not offend the provisions of

section 8 of the Act. See GEM Indus., Inc., 17 BNA

OSHC 1184, 1186-87, 1993-95 CCH OSHD 4 30,762, pp.

42,746-47 (No. 93-1122, 1995). However, unlike the

compliance officer in GEM, this compliance officer

deliberately concealed himself for a protracted time at

a remote location for the single purpose of document-

ing violative conduct. Again, such surveillance can

only be considered part of an inspection within the

meaning of section 8. And, since this part of the

inspection was conducted prior to the presentation of

credentials as required by section 8(a), with no

opportunity for Willson or its employees to exercise

walkaround rights provided in section 8(e), some

sanction must be applied.

The majority could have decided this case on the

testimony of Willson’s employees without reaching

any of these section 8 issues. Nonetheless, they have

gratuitously concluded that the protections provided

by section 8 are generally broader than those of the

Fourth Amendment. In doing so, however, they have

conveniently found a narrowing of section 8 regarding

off-site inspections, thereby denying emptoyers any

remedy when OSHA conducts off-site surveillance

such as here. Though they claim to find this narrow-

ing in the language of section 8 itself, the courts have

found no such limitation in the Fourth Amendment,

nor in the closely-related inspection provisions of the

Clean Air Act. Indeed, section 8(b) gives OSHA the

37a

authority to subpoena witnesses in the furtherance of

an inspection. By enacting this provision, Congress

clearly intended that Section 8 would apply to

inspection activity that would occur off-site. Having

now eliminated the only basis on which an employer

can seek relief from a covert inspection, there is little

solace to employers in the majority’s lengthy criti-

cism of OSHA’s inspection policy. Congress did not

give the Commission Oversight authority to affect

OSHA’s internal policies, but rather “intended to

delegate to the Commission the type of nonpolicymak-

ing adjudicatory powers typically exercised by a court

.-” (emphasis in original). Martin v. OSHRC (CF&I

Steel Corp.), 499 U.S. 144, 154 (1991),

The Commission has determined that the exely-

sionary rule applies to its proceedings. Sanders Lead

Co., 15 BNA OSHC 1640,1651, 1991-98 CCH OSHD q

29,690, p. 40,270 (No. 87-0260, 1992). While the Circuit

Courts have agreed, they have also said that the good

faith exception should be liberally applied when con-

sidering orders of abatement. Trinity Industries v.

OSHRC, 16 F.3d 1455, 1462 (6th Cir. 1994); Smith

Steel Casting v. Brock, 800 F.2d 1329, 1334 (5th Cir.

1986). Given the compliance officer’s deliberate viola-

tion of section 8, I can see no reason to give the

Secretary the benefit of the good faith exception here.

I would therefore apply the sanction of Suppression to

all evidence gathered by the compliance officer as a

result of his surveillance from the roof of the hotel

across the street from the worksite. However, as the

majority opinion States, following his proper pre-

sentation of credentials at the worksite, the compli-

ance officer did obtain additional evidence to support

the citation. Together with the hearing testimony, I

38a

have concluded that this evidence alone supports the

alleged violation.

The Secretary argues that Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837

(1984) and Martin v. OSHRC (CF &I Steel Corp.), 499

U.S. 144 (1991) require the Commission to give

deference to his reading of section 8. It is true that

the Supreme Court has said that when the Commis-

sion finds an OSHA standard to be ambiguous, then it,

like all reviewing courts, must give deference to the

Secretary’s reasonable interpretation of that stan-

dard. However, the CF&I Steel Court was careful to

explain that “[blecause applying an agency’s regula-

tion to complex or changing circumstances calls upon

the agency’s unique expertise and policy making

prerogatives, the power authoritatively to interpret

its own regulations is a component of the agency’s

delegated lawmaking powers.” Jd. at 151. This rea-

soning certainly applies when the Commission is

confronted with an ambiguity in a standard promul-

gated by the Secretary. But that is not the case here.

What we are now asked to determine is what—if

any—legal remedy should be afforded to an employer

when OSHA intentionally violates section 8 of the

OSH Act. Like OSHA, the Commission is itself an

agency established under the OSH Act. Repeating

the words of CF &I Steel, “Congress intended to dele-

gate to the Commission the type of nonpolicymak-

ing adjudicatory powers typically exercised by a

court. . . .” CF&I Steel, 499 at 154 (emphasis in

original). The issue here—whether the exclusionary

rule and its suppression remedy apply when the

Secretary intentionally violates section 8 of the OSH

Act—must be decided in accordance with rules of

39a

evidence created by the courts. As the Commission is

the agency with the “adjudicatory powers typically

exercised by a court,” then the most logical applica-

tion of Chevron and CF&I Steel would be to give

deference to the Commission, not the Secretary, on

such a purely legal decision as this.

The Secretary has cited a number of cases under

section 8 for the proposition that the employer must

show actual prejudice in order for section 8 sanctions

to apply. All of those cases, however, involve unin-

tended “technical violations” of section 8 by OSHA

personnel. Here the compliance officer deliberately

avoided his statutory duty to present his credentials

and to allow the employer and the employees to

participate in the inspection. In a case such as this, it

can easily be said that the employer was prejudiced

per se, and it is hardly appropriate to require the

employer to show actual prejudice for a sanction to

apply. The Secretary’s unsupported representation

at oral argument that she now has administrative

controls in place to prevent the improper conduct of

inspections provides little reassurance. Particularly

considering that the Secretary has refused to

acknowledge that the OSH Act places any limitations

on her inspection authority, the license the majority

now has given her to Support citations with evidence

gathered secretly from off-site is cause for concern.

40a

Conclusion.

For the reasons stated, I concur in the result

reached by the majority, although I arrive at this

result by a different course of reasoning.

/s/ VELMA MONTOYA

VELMA MONTOYA

Commissioner

Dated: March 11, 1997

4la

APPENDIX D

[SEAL OMITTED]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH.

REVIEW COMMISSION

ONE LAFAYETTE CENTRE

1120 20TH STREET, N.W.—9TH FLOOR

WASHINGTON, DC 20038-3419

PHONE FAX

COM (202) 606-5100 COM (202) 606-5060

FTS (202) 606-5100 FTS (202) 606-5060

OSHRC Docket No. 94-1546

SECRETARY OF LABOR, COMPLAINANT

Vv.

L. R. WILLSON AND SONS, INC., RESPONDENT

DIRECTION FOR REVIEW

The Respondent has filed a Petition for Discretion-

ary Review. Pursuant to 29 U.S.C. § 661 (j) and 29

C.F.R. § 2200.92(a), the decision of the Administrative

Law Judge is directed for review. Based on a pre-

liminary examination of the record, the issue to be

considered is:

1) Given that Compliance Officer Anderson made

the subject video tape of Respondent’s worksite from

a non-public area on the roof of the Peabody Hotel, and

with the aid of a 16 power lens, did the judge err in

admitting the video tape and the ensuing testimony

regarding what was allegedly seen through the video

camera?

42a

A briefing order will follow that may designate

additional issues.

/s/_ VELMA MONTOYA

VELMA MONTOYA

Commissioner

DATED: 6/29/95

[SEAL OMITTED]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

1120 20TH STREET, N.W., 9TH FLOOR

WASHINGTON, DC 20038-3419

Office of the Chairman Phone: (202) 606-5100

Fax: (202) 606-5060

OSHRC Docket No. 94-1546

SECRETARY OF LABOR, COMPLAINANT

L. R. WILLSON AND Sons, INC., RESPONDENT

DIRECTION FOR REVIEW

Subsequent to Commissioner Montoya’s direction

for review of the Administrative Law Judge’s decision

in this case based on the Respondent’s Petition for

Discretionary Review, the Secretary filed a Petition

for Discretionary Review. While concurring with

Commissioner Montoya’s direction, pursuant to 29

U.S.C.. §§ 661 (j) and 29 C.F.R. § 2200.92(a), I would

also direct review on the following issue raised by the

Secretary:

Did the judge err in reducing the classification of

the alleged violation of §1926.750(b)(1\ii) from

willful to serious?

A briefing order will follow that may designate

additional issues.

/s/ STUART E. WEISBERG

- STUART E. WEISBERG

Chairman

DATED: June 30, 1995

45a

APPENDIX E

[SEAL OMITTED]

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH

REVIEW COMMISSION

1365 PEACH STREET, N.E., SUITE 240

ATLANTA, GEORGIA 30309-3119

PHONE FAX

COM (404) 347-4197 COM (404) 347-0113

FTS (404) 347-4197 FTS (404) 347-0113

OSHRC Docket No. 94-1546

SECRETARY OF LABOR, COMPLAINANT

Vv.

L. R. WILLSON AND Sons, INC., RESPONDENT

Appearances:

Ann G. Paschall, Esq. Frank L. Kollman, Esq.

Office of the Solicitor Kollman & Sheehan, P.A.

U.S. Department of Labor Baltimore, Maryland

Atlanta, Georgia For Respondent

or Complainant

DECISION AND ORDER

Before: Administrative Law Judge Nancy J.

SPIES.

46a

L. R. Willson and Sons, Inc. (Willson), contests a

citation issued by the Secretary on May 12, 1994. The

citation resulted from an inspection conducted by

Occupational Safety and Health Administration

(OSHA) compliance officer Ron Anderson on April 29,

1994. The Secretary alleges in the citation that Will-

son committed a willful violation of §1926.750(b)(1)(ii),

or, in the alternative, of §1926.105(a), by failing to re-

quire two of its employees to use fall protection while

they were Nichia approximately 80 feet above the

ground.

FACTS

The relevant facts are not in dispute. Willson

operates a steel erection business headquartered in

Gambrills, Maryland (Tr. 142). In the first part of

1994, Willson was working as a subcontractor on the

renovation of the Orange County Civic Center

(Center) in Orlando, Florida. The project was quite

expansive, covering approximately 3,000,000 square

feet, and constituting one of the largest such projects

in the Southeast (Tr. 8-9). The general contractor on

the project was C.R.S.S./Kelsey/Hardin (CKH) (Tr.

122). CKH had contracted with Addison Steel, who

acted as the steel fabricator and supplier on the pro-

ject. Addison Steel subcontracted the steel erection

work to Willson (Tr. 41).

In February 1994, Anderson conducted a com-

prehensive inspection of the Center, in response

to a complaint (Tr. 71-72). The Secretary cited

Willson for, among other things, a violation of

47a

§ 1926.750(b)(2)(i)' as a result of that inspection.

Anderson had observed a Willson ironworker working

approximately 30 feet above the ground without using

fall protection. During an informal conference re-

garding the citation, Willson produced three written

warnings it had issued to employees as evidence that

Willson disciplined employees for safety infractions.

This documentation convinced the Secretary that the

fall protection violation was the result of unpre-

ventable employee misconduct. Within the terms of

an overall settlement, the Secretary withdrew the

item alleging the § 1926.750(b)(2)(i) violation (Exh.

C-3; Tr. 20-21, 50).

Anderson returned to the Center on April 29, 1994,

in response to a referral alleging that unidentified

workers had been observed working without fall

protection at a height of approximately 80 feet. The

referral was unusual in that it came from Joe Dear,

the assistant Secretary of Labor (Tr. 7). Dear had

earlier observed the employees from his hotel room in

the Peabody Hotel, directly across the street from

the Center (Tr. 103-104).

Anderson went first to the Peabody Hotel with a

video.camera. He met with the hotel’s director of

safety and received permission to videotape the con-

struction activity at the Center from the roof of the

Peabody Hotel. After gaining access to the hotel’s

1 § 1926.750(b)(2)(i) provides:

Where skeleton steel erection is being done, a tightly

planked and substantial floor shall be maintained within

two stories or 30 feet, whichever is less, below and directly

under that portion of each tier of beams on which any

work is being performed,. . . . Where such a floor is not

practicable, paragraph (b)(1)(ii) of this section applies.

48a

roof, Anderson videotaped various workers at the

Center for approximately 50 minutes. Anderson had

the camera’s zoom lens set on its maximum 16-power

(Tr. 9). Anderson testified that without the zoom

lens, he “could not really make anything out in detail” |

(Tr. 72).

Anderson videotaped two ironworkers who were

working on the steel with no fall protection. He

estimated that they were 80 feet above the ground

(Tr. 9). Anderson went over to the Center and held an

opening conference with Bill Smelcer of CKH.

Anderson ultimately met with the two employees he

had videotaped working without fall protection. They

were Randall (Randy) Manley and Donald McVay,

both employees of Willson (Tr. 13-15). They admitted

to Anderson that they were working without fall

protection despite Willson’s policy of tying off at all

times at elevations above 10 feet (Tr. 15-16).

ADMISSIBILITY OF VIDEOTAPE

At the hearing, Willson objected to the admissibil-

ity of the videotape on the grounds that the videotape

resulted from an illegal search conducted by Ander-

son. Willson argues that Anderson made the video-

tape before he held an opening conference with

Willson in derogation of §8(a) of the Act, and that the

area and activity videotaped by Anderson were not in

plain view. The Secretary responded that the area

and activity videotaped by Anderson were in plain

view from the roof of the Peabody Hotel, where

Anderson had a right to be. The undersigned deferred

ruling on Willson’s objection (Tr. 31-32), and now

rules that the videotape, Exhibit C-4, is admissible.

49a

Section 8(a) of the Act provides:

In order to carry out the purposes of this Act, the

Secretary, upon presenting appropriate credentials

to the owner, operator, or agent in charge, is

authorized—

(1) to enter without delay and at reasonable

times any factory, plant, establishment, con-

struction site, or other area, workplace or envi-

ronment where work is performed by an em-

ployee of an employer; and

(2) to inspect and investigate during regular

working hours and at other reasonable times,

and within reasonable limits and in a reasonable

manner, any such place of employment and all

equipment, and materials therein, and to ques-

tion privately any such employer, owner, opera-

tor, agent or employee.

Willson argues that Anderson failed to comply with

§$8(a) when he waited until after he had videotaped

Willson’s worksite before presenting his credentials

to CKH and Willson.

The Commission has held that an employer’s right

under section 8(a) to have the OSHA representa-

tive present credentials prior to the inspection is

not violated unless a violation of the Fourth

Amendment is also shown. E.g., Laclede Gas Co., 7

BNA OSHC 1874, 1877, 1979 CCH OSHD { 24,007,

p. 29,153 (No. 76-3241); Accu-Namics, Inc., 1 BNA

OSHC 1751, 1755, 1973-74 CCH OSHD { 17,936, p.

22,233 (No. 477, 1974), aff'd, 515 F.2d 828 (5th Cir.

1975), cert. denied, 425 U.S. 903 (1976); see Con-

crete Constr. Co., 15 BNA OSHC 1614, 1616-17,

1991-93 CCH OSHD 4] 29,681, p. 40,240 (No.

50a

89-2019, 1992). In order for an employer to estab-

lish that section 8(a) requires the suppression of

evidence obtained before the presentation of cre-

dentials, it must show that it had a reasonable

expectation of privacy in the worksite. £.g.,

Hamilton Fixture, 16 BNA OSHC 10738, 1078 &

n.9, 1993 CCH OSHD 430,034, p. 41,173 & n.9 (No.

88-1720), aff'd without published opinion, 28 F.3d

1213 (6th Cir. 1994); Laclede Gas, 7 BNA OSHC at

1877, 1979 CCH OSHD at p. 29,153; Accu-Namics,

1 BNA OSHC at 1754-55, 1973-74 CCH OSHD at p.

22,233. Where an area is outdoors and open to

public view, there is no expectation of privacy, and

the area is therefore not subject to the Fourth

Amendment under the “open fields” doctrine.

Gem Industrial, Inc., >. 4 of decision (No. 93-1122,

1995).

Compliance officers are given a wide latitude when

inspecting outdoor activities, such as the construc-

tion being performed by Willson. A construction site

is not an area in which an employer has a reasonable

expectation of privacy. According to the “open fields”

doctrine:

[AJn individual may not legitimately demand pri-

vacy for activities conducted out of doors, in fields,

except in the area immediately surrounding the

home.

There is no societal interest in protecting the

privacy of those activities, such as the cultivation

of crops, that occur in open fields. ;

[Therefore,] the asserted expectation of privacy in

open fields is not an expectation that “society

CN Ee Te eR ee ee

5la

recognizes as reasonable.” Oliver v. United

States, 466 U.S. 170, 178-79 (1984),

“An open field need be neither ‘open’ nor a ‘field’

as those term are used in common speech.” Jd.,

466 U.S. at 180 n.11. See, é.g., United States v.

Fahey, 769 F.2d 829 (1st Cir.1985) (“open fields”

doctrine applied to mining site in open desert);

[United States v.] Marbury, 732 F. 2d 390, 398

(doctrine applied to large tract of commercia!

property, including gravel pits and roadways). ...

See also Ackerman Enterprises, Inc. [10 BNA

OSHC 1709, 1712, n.13] (“There is no violation of

fourth amendment rights when a government

agent’s observations occur in ‘the open fields’. . .

even if the government agent trespasses on pri-

vate property to make his observations”),

Tri-State Steel, 15 BNA OSHC 1903, 1909-10 (Nos.

89-2611 and 89-2705, 1992),

The videotape is admissible under the “open fields”

doctrine.”

* Although the Secretary also argued that Willson’s work-

site was in “plain view,” Anderson’s inspection fails to meet the

requirements of the “plain view” exception.

There are two significant limitations to the “plain view”

doctrine. . . . [TJhe “plain view” doctrine can only be

applied when the OSHA inspectors make their “plain

view” observations from a location where they are legally

justified in being. . . .

“The second limitation is that the discovery of evidence

in plain view must be inadvertent. . . . [W]here the

discovery is anticipated, where the police know in

advance the location of the evidence and intend to seize

52a

ALLEGED VIOLATION

In order to establish a violation of an occupational

safety or health standard, the Secretary has the

burden of proving: (a) the applicability of the cited

standard, (b) the employer’s noncompliance with

the standard’s terms, (c) employee access to the

violative conditions, and (d) the employer’s actual

or constructive knowledge of the violation (i.e., the

employer either knew or with the exercise of

reasonable diliyence could have known, of the

violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No.

90-1747, 1994).

it, the situation is altogether different.” Coolidge [v.

New Hampshire, 403 U.S. 443, 469-470].

Tri-State Steel, 15 BNA OSHC at 1909.

Anderson was legally justified in being on the roof of the

Peabody Hotel, having received permission from the hotel’s

director of safety. His viewing of the evidence was, however,

anything but inadvertent. His supervisor sent Anderson to the

Peabody Hotel for the express purpose of gaining a vantage

point from which he could view the Center. Anderson arrived

at the hotel equipped with a video camera in anticipation of

taping Willson’s worksite. The videotape does not constitute a

“plain view” inspection.

58a

The Secretary alleges that Willson committed a

willful violation of § 1926.750(b)(1)(ii).2 The citation

reads:

On buildings or structures not adaptable to tempo-

rary floors, and where scaffolds are not used, safety

nets shall be installed and maintained whenever the

potenzial fall distance exceeds two stories or 25

feet. The nets shall be hung with sufficient clear-

ance to prevent contacts with the surface of struc-

tures below.

In the alternative, the Secretary’s citation alleges

a willful violation of § 1926.105(a), that states:

Safety nets shall be provided when workplaces are

more than 25 feet above the ground or water sur-

face, or other surfaces where the use of :adders,

scaffolds, catch platforms, temporary floors, safety

lines, or safety belts is impractical.

a) Applicabili

The applicability of § 1926.750 and § 1926.105(a) to

fall hazards during steel erection has been exten-

sively litigated before the Commission and the courts

of appeals. The position now taken by the Com-

mission, which is in line with that of the courts of

appeals in four different circuits, is that § 1926.750

applies to falls to the interior of a structure during

* § 1926.750(b)(1)(ii) provides:

On buildings or structures not adaptable to temporary

floors, and where scaffolds are not used, safety nets shall be

installed and maintained whenever the potential fall dis-

tance exceeds two stories or 25 feet. The nets shall be hung

with sufficient clearance to prevent contacts with the

surface of structures below.

54a

steel erection, and that § 1926.105(a) applies to falls to

the exterior of a structure during steel erection. See

Brock v. Williams Enterp., 832 F.2d 567 (11th Cir.

1987); Brock v. L.R. Willson & Sons, Inc., 773 F.2d

1377 (D.C. Cir. 1985); Donovan v. Adams Steel Erec-

tion, 766 F.2d 804 (8d Cir. 1985); Donovan v. Daniel

Marr & Sons, 763 F.2d 477 (1st Cir. 1985); Bratton

Corp., 14 BNA OSHC 1893 (No. 83-132, 1990). Willson

does not dispute the applicability of § 1926.750(b)(1)Gi)

to the present case.

Willson argues, however, that § 1926.105(a) is

inapplicable because any fall hazard to which its

employees were exposed was to the interior of the

structure. Anderson testified that during the time he

observed Manley and McVay, they were exposed to

fall hazards to both the interior and the exterior of

the structure (Tr. 24). James Willson, Willson’s

vice-president of field operations, stated that, based on

his viewing of Exh. C-4, Manley and McVay would

have fallen to the interior of the structure (Tr. 174).

Manley, who was in the best position to know, stated

that if he had fallen, it would have been to the

structure’s interior (Tr. 83). Manley’s testimony is

the most convincing on this issue. It is determined

that Willson’s employees were not exposed to an

exterior fall hazard. Therefore, § 1926.105(a) is inap-

plicable to the present case. _

The record establishes that Willson’s employees

were working on a structure not adaptable to tempo-

rary floors, and that they were using no form of fall

protection. Willson argues that the Secretary failed

to prove that the potential fall distance exceeded two

stories or 25 feet because Anderson did not measure

55a

the distance (Tr. 44). This argument is without

merit.

Anderson estimated the distance to be more than 80

feet (Tr. 10). Manley estimated the potential fall

distance to be approximately 75 feet (Tr. 90). Both

witnesses were credible and appeared more than

capable of determining whether or not a distance

exceeded 25 feet. The lowest estimate was three

times the distance that triggers the standard’s appli-

cability. Based on the testimony of Anderson and

Manley, it is concluded that the potential fall distance

was between 75 and 80 feet. The Secretary has proven

that Willson failed to comply with § 1926.750(b)(1)(ii).

It is undisputed that Manley directed McVay to

accompany him to work in an area where the fall

protection cable had not been strung. Manley and

McVay were exposed to the hazard of falling.

(d) Employer Knowledge

Manley considered himself to be and identified

himself to Anderson as a foreman for Willson (Tr. 26,

77). Since Manley was one of the employees observed

working without fall protection, he had actual

knowledge of the standard’s violation. “The actual or

constructive knowledge of the employer’s foreman or

supervisor can be imputed to the employer.” Jersey

Steel Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307,

1993).

Willson argues that, despite Manley’s designation

as a foreman, he was not a supervisory employee and

that his knowledge cannot be imputed to the company.

Willson claims that Manley was actually “more of a

leadman” assigned to lead his crew of three men every

56a

day. Manley was paid the same as the other iron-

workers and had no power to hire or fire employees

(Tr. 151-152). “General foremen,” which Willson says

are the real supervisory employees, are paid a higher

hourly wage than the other ironworkers and are

given company trucks. Willson had not given Manley

a truck (Tr. 182-183).

The criterion for being considered a foreman under

the Act is not stringent. “An employee who had been

delegated authority over other employees, even only

temporarily, is considered to be a supervisor for the

purposes of imputing knowledge to an employer.”

Tampa Shipyards Inc., 15 BNA OSHC 1533, 1537

(Nos. 86-360 and 86-469, 1992). Even though Manley

was not accorded all the privileges and responsibili-

ties of Willson’s general foremen, he did wield author-

ity over his crew. Counsel for Willson questioned

James Willson regarding Manley’s duties (Tr.

151-153):

Willson: Randy had three guys and himself that

he was to work with on certain areas.

Q.: What, besides directing the employees

on instructions you gave him, authority

did he have with respect to the crew?

Willson: Well, being the leadman, he determined

how he was going to do his work in the

area and when he was supposed to do it.

Q.: Any other?

Willson: Pertaining to?

57a

Q.: Supervising these individuals.

Willson: Yes. He would have certain respon-

sibilities to follow company policies and

procedures.

Q.: What, if any, employees were not re-

sponsible for enforcing company policy?

Willson: Well, the average ironworker wasn’t.

They were responsible for their own

personal protection. Randy would be to

enforce to his limits, if he had a

problem. Then it would be my overall

responsibility.

Willson delegated the authority to Manley to in-

struct his crew in its work assignment each day.

Manley felt the duty to keep his men busy and planned

ahead “so they never had to stop [work]” (Tr. 78). He

told them where and how to perform their assigned

duties. He had responsibility to enforce company

policy on his crew, a responsibility in which his crew

did not share. “It is the substance of the delegation of

authority that is controlling, not the formal title of

the employee having this authority; an employee who

is empowered to direct that. corrective measures be

taken is a supervisory employee.” Dover Elevator

Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

The Secretary has established that Manley was a

supervisory employee within the meaning of the Act.

Therefore, his knowledge that he and McVay were

working at least 75 feet above the ground with no fall

58a

protection is imputed to Willson. Willson had knowl-

edge of the violation.

The Secretary has proven that Willson committed a

violation of § 1926.750(b)(1)(ii).

WILLSON’S UNPREVENTABLE EMPLOYEE

MISCONDUCT DEFENSE

Willson asserts the affirmative defense that any

violation it committed was the result of unpreventable

employee misconduct. In order te prove the affirma-

tive defense of unpreventable employee misconduct,

an employer must prove that:

(1) it had established work rules designed to

prevent the violation;

(2) the work rules had been adequately com-

municated to its employees; and

(3) it had taken steps to discover violations, and

had effectively enforced the rules when

violations had been discovered.

Falcon Steel Co., 16 BNA OSHC 1179, 1193 (No.

89-3444, 1993).

(1) Established Work Rules

Willson had an established work rule requiring its

employees to tie off at heights above 10 feet (Tr. 143).

Anderson testified that Willson had a good written ~~

safety program (Tr. 70). Lawrence Falck, an area

director for OSHA, testified that Willson’s safety

rules were adequate as written (Tr. 119).

‘ This is more stringent than the OSHA standard, which

requires employees to tie off at heights of 25 feet.

59a

Falck also testified that Willson adequately com-

municated its safety rules to its employees (Tr. 119).

Willson held weekly safety meetings which empha-

sized the use of fall protection (Tr. 84).

(3) Effective Enforcement

The only element of the defense that the Secretary

disputes is whether Willson effectively enforced its

work rule. In its defense, Willson asserts that it has

a disciplinary program by which employees are repri-

manded for safety infractions (Exhs. R-12, R-13).

Willson hired a safety consultant periodically to in-

spect its worksite to ensure compliance with safety

standards (Tr. 153). Willson fired ironworkers at the

Center worksite for not using fall protection (Tr.

130).

Well, we going to get right down to it, if OSHA

was on the job, yes. If OSHA wasn’t on the job, it’s

a completely different story. . . . Because

OSHA’s on the job, we all got radios in our hand,

_telling you right where they’re going tobe. SERRE

every section. Every time they walk around the

corner, somebody’s on the radio telling us right

where they’re at. “I got something. They’re on

the corner,” hollering at us up on the radio, “All

right, they’re coming in your area. Make sure al]

your people is tied off. Make sure everything is

safety there.”

60a

This admission provides insight into Willson’s atti-

tude towards enforcement, especially coming from a

supervisory employee.

Where a supervisory employee is involved, the

proof of unpreventable employee misconduct is

more rigorous and the defense is more difficult to

establish since it is the supervisor’s duty to

protect the safety of employees under his supervi-

sion . .. . A supervisor’s involvement in the

misconduct is strong evidence that the employer’s

safety program was lax.

Archer-Western Contractors Ltd., 15 BNA OSHC

1013, 1017 (No. 87-1067, 1991). What Manley described

implicates Willson’s employees throughout its work-

site. Willson did not contradict or discredit Manley’s

description of what occurs during an OSHA inspec-

tion. Manley stated that he expected to be disciplined

only if OSHA was on the site. Willson failed to estab-

lish that its work rules were effectively enforced.

Therefore, its unpreventable employee misconduct

defense must fail.

WHETHER THE VIOLATION WAS WILLFUL

The Secretary alleged that Willson’s violation of

$1926.750(b)(1)(ii) was willful. A willful violation is

one committed with intentional, knowing or voluntary

_disregard for the requirements_of the—Act, or with

plain indifference to employee safety.

A willful violation is differentiated from others by

an employer’s heightened awareness of the illegal-

ity of the conduct or conditions and by a state of

mind, 7.e., conscious disregard or plain indiffer-

ence for the safety and health of empioyees.

Logically, then, a willful charge is not justified if

6la

an employer has made a good faith effort to comply

with a standard or eliminate a hazard, even though

the employer’s efforts are not entirely effective or

complete.

Falcon Steel Co., 16 BNA OSHC at 1181.

The Secretary asserts the following reasons in his

post-hearing brief for classifying the charge as

willful:

e The violation occurred over a period of 45

minutes.

e Manley and McVey were working at heights

in excess of 75 feet.

* Manley chose to work rather than waiting for

safety cables to be sent up.

e Manley was a supervisory employee.

¢ Willson was aware that it was having ongoing

problems concerning the use of fall protection

at its site.

Of these five factors, only the last two have any

bearing on whether Willson’s violation was willful or

not. The first three items are factors in establishing

that Willson committed a serious violation. They do

__not_tend to show that-Willson-acted-with-intentional-——

disregard or plain indifference to employee safety.

The fact that Manley committed a violation of the Act

even though he was supervisory employee could dem-

onstrate a tendency for an intentional disregard of

the Act’s requirements.

The strongest evidence the Secretary has of willful

conds-t is Willson’s awareness of problems relating

62a

to fall protection prior to the violation at issue. The

Secretary had issued a citation for failure to use fall

protection approximately two months before the

inspection that gave rise to the present case. Even

though the Secretary subsequently withdrew the

citation, Willson was on notice that one of its em-

ployees had violated its safety rules. A few days

before Anderson’s inspection in the present case,

CKH notified Willson that one of its ironworkers had

been observed working without fall protection (Exh.

C-5; Tr. 175).®

Despite the evidence of these prior incidents, the

Secretary has failed to establish that Willson’s

violation of §1926.750(b)(1)(ii) was willful. The record

does not demonstrate that Willson exhibited either

intentional disregard for the Act, or plain indifference

to its employees’ safety. Willson has a good written

safety program. It holds weekly safety meetings.

Frank McDaniel, CKH’s safety manager for the

Center, testified that Willson was a safe steel erector

“as ironworkers go” (Tr. 129). He stated that most of

the problems Willson had with getting employees to

tie off came from employees who had not been with the

company for very long® “Of the group or the individu-

als who seemed to constantly violate the standards,

5 Although arguing that the Secretary failed “to prove” the

CKH notification referred to a Willson employee, James Will-

son testified that he believed it to be “a Willson safety violation

and [the notice was meant] to make sure we're reviewing it

with our men, which we did” (Tr. 175).

§ Willson’s contract for the Center specified that Willson

was required to hire a certain percentage of local workers for

the job. James Willson estimated that 80% to 90% of Willson’s

employees at the Center were local (Tr. 148).

63a

either the Willson safety program or OSHA in gen-

eral, they seemed to be local hires predominately. I

really cannot remember of any time that I had to

write up an actual Willson employee who had been

with the company for any length of time” (Tr. 130).’

McDaniel said that he knew of ironworkers that

Willson had fired for failing to use fall protection (Tr.

130).

The fact that the problem employees were ones

more recently hired does not excuse Willson’s

violation of the cited standard. It is the employer’s

responsibility to enforce the OSHA standards with

respect to all of its employees. But it is significant

that Willson’s long term employees exhibited none of

the recalcitrance of the recently hired employees in

using fall protection. This indicates that the com-

pany did emphasize fall protection and that the vet-

eran employees had absorbed this ethos. The viola-

tion is properly classified as serious.

PENALTY DETERMINATION

“Section 17(j) of the Act, 29 U.S.C. § 666(j), re-

quires that when assessing penalties, the Commis-

sion must give ‘due consideration’ to four criteria:

the size of the employer’s business, gravity of the

violation, good faith, and prior history of violations.”

Hern Iron Works, Inc., 16 BNA OSHC 1619, 1624.

Willson employed approximately 130 employees at

the time of the inspection. On the center project

itself Willson had reduced its workforce to 30 em-

ployees by that date (Tr. 154). Willson cooperated

? Manley had worked for Willson for less than a year at the

time of Anderson’s April 1994 inspection (Tr. 77).

64a

with the inspection and demonstrated good faith in its

dealings with the Secretary (Tr. 73). The Secretary

had previously cited Willson for violations of the Act

(Exh. R-1).

The gravity of the violation is the most significant

factor to be considered when assessing a penalty.

“The gravity of a particular violation depends upon

such ma:ters as the number of employees exposed, the

duration of the exposure, the precautions taken

against injury, and the likelihood that any injury

would result.” Jd. In the present case, two employees

were exposed for the extended period of 45 minutes.

They took no precautions against falling. They were

exposed to a fall hazard of at least 75 feet, which would

have resulted almost certainly in death had they

fallen. The gravity of the violation is extremely high.

Basec upon these factors, it is determined that a

penalty in the amount of $7,000.00 is appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF

LAW

The foregoing constitutes the findings of fact and

conclusions of law in accordance with Federal Rule of

Civil Procedure 52(a).

ORDER

Based upon the foregoing decision, it is hereby

Oe A eaten

Seniatiniedeede eta

65a

Item 1 of Citation No. 1, alleging a violation of

$1926.750(b)(1)(ii), is affirmed as serious, and a penalty

of $7,000.00 is assessed.

/s/ NANCY J. SPIES

NANCY J. SPIES

Judge

Dated: May 25, 1995

66a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1492

94-1546

L. R. WILLSON AND SONS, INCORPORATED, PETITIONER

OCCUPATIONAL SAFETY & HEALTH REVIEW

COMMISSION , RESPONDENT

[Filed: March 27, 1998]

ON PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING IN BANC

The government’s petition for rehearing and sug-

gestion for rehearing in banc were submitted to this

Court. As no member of this Court or the panel

requested a poll on the suggestion for rehearing in

banc, and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

67a

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

For the Court,

/s/ PATRICIA S. CONNOR

CLERK

68a

APPENDIX G

STATUTORY AND REGULATORY PROVISIONS

1. Section 5 of the Occupational Safety and Health

Act of 1970, Pub. L. 91-596, 84 Stat. 1598, 29 U.S.C.

654, provides as follows:

§ 654. Duties of employers and employees

(a) Each employer—

(1) shall furnish to each of his em-

ployees employment and a place of employ-

ment 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 promulgated

under this chapter.

(b) Each employee shall comply with occu-

pational safety end health standards and all rules,

regulations, and orders issued pursuant to this

chapter which are applicable to his own actions and

conduct.

2. Section 17 of the Occupational Safety and

Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1606,

as amended, 29 U.S.C. 666, provides as follows:

§ 666. Civil and criminal penalties

(a) Willful or repeated violation

Any employer who willfully or repeatedly vio-

lates the requirements of section 654 of this title,

any standard, rule, sr order promulgated pursuant

to section 655 of this title, or regulations pre-

scribed pursuant to this chapter, may be assessed a .

69a

civil penalty of not more than $70,000 for each

violation, but not less than $5,000 for each willful

violation.

(b) Citation for serious violation

Any employer who has received a citation for a

serious violation of the requirements of section 654

of this title, of any standard, rule, or order

promulgated pursuant to section 655 of this title, or

of any regulations prescribed pursuant to this

chapter, shall be assessed a civil penalty of up to

$7,000 for each such violation.

(ec) Citation for violation determined not serious

Any employer who has received a citation for a

violation of the requirements of section 654 of this

title, of any standard, rule, or order promulgated

pursuant to section 655 of this title, or of regula-

tions prescribed pursuant to this chapter, and such

violation is specifically determined not to be of a

serious nature, may be assessed a civil penalty of

up to $7,000 for each such violation.

(d) Failure to correct violatiou

Any employer who fails to correct a violation for

which a citation has been issued under section

658(a) of this title within the period permitted for

its correction (which period shall not begin to run

until the date of the final order of the Commission

in the case of any review proceeding under section

659 of this title initiated by the employer in good

faith and not solely for delay or avoidance of

penalties), may be assessed a civil penalty of not

more than $7,000 for each day during which such

failure or violation continues.

70a

(e) Willful violation causing death to employee

Any employer who willfully violates any stan-

dard, rule, or order promulgated pursuant to

section 655 of this title, or of any regulations

prescribed pursuant to this chapter, and that

violation caused death to any employee, shall, upon

conviction, be punished by a fine of not more than

$10,000 or by imprisonment for not more than six

months, or by both; except that if the conviction is

for a violation committed after a first conviction of

such person, punishment shall be by a fine of not

more than $20,000 or by imprisonment for not more

than one year, or by both.

(f) Giving advance notice of inspection

Any person who gives advance notice of any

inspection to be conducted under this chapter,

without authority from the Secretary or his

designees, shall, upon conviction, be punished by a

fine of not more than $1,000 or by imprisonment for

not more than six months, or by both.

(g) False statements, representations or certification

Whoever knowingly makes any false statement,

representation, or certification in any application,

record, report, plan, or other document filed or

required to be maintained pursuant to this chapter

shall, upon conviction, be punished by a fine of not

more than $10,000, or by imprisonment for not more

than six months, or by both.

(h) Omitted

Tla

(i) Violation of posting requirements

Any employer who violates any of the posting

requirements, as prescribed under the provisions

of this chapter, shall be assessed a civil penalty of

up to $7,000 for each violation.

(j) Authority of Commission to assess civil penalties

The Commission shall have authority to assess

all civil penalties provided in this section, giving

due consideration to the appropriateness of the

penalty with respect to the size of the business of

the employer being charged, the gravity of the

violation, the good faith of the employer, and the

history of previous violations.

(k) Determination of serious violation

For purposes of this section, a serious violation

shall be deemed to exist in a place of employment if

there is a substantial probability that death or

serious physical harm could result from a condition

which exists, or from one or more practices, means,

methods, operations, or processes which have been

adopted or are in use, in such place of employment

unless the employer did not, and could not with the

exercise of reasonable diligence, know of the

presence of the violation.

(1) Procedure for payment of civil penalties

Civil penalties owed under this chapter shall be

paid to the Secretary for deposit into the Treasury

of the United States and shall accrue to the United

States and may be recovered in a civil action in the

name of the United States brought in the United

States district court for the district where the

72a

violation is alleged to have occurred or where the

employer has its principal office.

3. The occupational safety standard involved in

this case, 29 C.F.R. 1926.750(b)(1)(ii), provides as fol-

lows:

§ 1926.750 Flooring requirements.

* * * * *

(b)(1)(ii) On buildings or structures not

adaptable to temporary floors, and where scaffolds

are not used, safety nets shall be installed and

maintained whenever the potential fall distance

exceeds two stories or 25 feet. The nets shall be

hung with sufficient clearance to prevent contacts

with the surface of structures below.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.