26 F.3d 173 (D.C. Cir. 1994), 92-1614, Tri-State Steel Const., Inc. v. Occupational Safety & Health Review Com'n

Docket Nº:92-1614.
Citation:26 F.3d 173
Party Name:TRI-STATE STEEL CONSTRUCTION, INC., et al., Petitioners, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, et al., Respondents.
Case Date:June 17, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 173

26 F.3d 173 (D.C. Cir. 1994)

TRI-STATE STEEL CONSTRUCTION, INC., et al., Petitioners,

v.

OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, et al., Respondents.

No. 92-1614.

United States Court of Appeals, District of Columbia Circuit

June 17, 1994

        Argued Feb. 23, 1994.

        Rehearing Denied Aug. 22, 1994.

Page 174

        Petition for Review of an Order of the Occupational Safety & Health Review Commission.

        Kent W. Seifried, Newport, KY, argued the cause, and filed the briefs, for petitioners.

        John Shortall, Atty., U.S. Dept. of Labor, Washington, DC, argued the cause, for respondents. With him on the brief was Joseph M. Woodward, Associate Sol., Occupational Safety and Health, and Barbara Werthmann, Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, DC.

        Before MIKVA, Chief Judge, WILLIAMS and SENTELLE, Circuit Judges.

        Opinion for the Court filed by Chief Judge MIKVA.

        Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

        MIKVA, Chief Judge:

        The Occupational Safety and Health Administration ("OSHA") conducted two related inspections of a multi-employer bridge and highway construction project on which Petitioners, National Engineering & Contracting Company ("National") and its wholly-owned subsidiary Tri-State Steel Construction Company, Inc. ("Tri-State"), were subcontractors.

Page 175

OSHA cited Petitioners for violating several safety and health standards established pursuant to the Occupational Safety and Health Act of 1970. 29 U.S.C. Secs. 651-678 (1988 & Supp.1993). Petitioners contested the citations, alleging, inter alia, that OSHA's inspections of the construction site constituted unreasonable searches within the meaning of the Fourth Amendment.

        After a hearing on the merits, an administrative law judge ("ALJ") held the searches to be constitutionally permissible. The Occupational Safety and Health Review Commission ("Commission") affirmed the ALJ's conclusion, and Petitioners filed this petition for review. Because Petitioners lacked a reasonable expectation of privacy in the open areas of their construction site and OSHA inspected other areas of the site pursuant to a valid administrative warrant, we deny the petition for review.

       I. Background

        In 1989, National and Tri-State worked as subcontractors on a major reconstruction and rehabilitation project known as Project 8. Project 8 involved the restoration of 36 bridges in a four-mile stretch where three major highways converged in Cincinnati, Ohio. To promote both the safety of Project 8 workers and the convenience of area drivers, the State of Ohio developed, and the project's general contractor implemented, a traffic control plan to reroute traffic around the construction area. Petitioners bore no responsibility for designing or implementing the plan.

        On the evening of April 27, 1989, the general contractor, acting in accordance with the traffic control plan, set barrels in a V-like formation around Petitioners' worksite area on Fort Washington Way, a four-lane highway intersecting the project area. The barrels isolated the highway's two center lanes by rerouting traffic to the outer left- and right-hand lanes. The right lane channeled traffic north toward Dayton, Ohio; the left lane channeled traffic south into Kentucky. Once cars split off at the "V," they had no further opportunity to cross back to the other lane of traffic.

        On April 28th, Fort Washington Way motorists found themselves channelled in directions in which they did not want to go. Because the barrels were set fifty feet apart, motorists were able to cut between them and across the work area in order to reach their desired lanes. When the criss-crossing traffic problem first began, Petitioners contacted the State of Ohio to request police protection for their workers. The State directed the general contractor to reposition the barrels by placing them at 25-foot intervals. When this proved ineffective, Petitioners placed debris and other items between the barrels to discourage traffic from cutting through the work area. When the criss-crossing problem persisted, an agent of Petitioners' iron workers filed a Sec. 8(f)(1) Complaint with OSHA detailing the nature and location of the safety hazard to which site employees were exposed. 29 U.S.C. Sec. 657(f)(1).

        OSHA promptly commenced an inspection of the specific area of Fort Washington Way described in the Complaint. On May 4, 1989, without seeking an administrative inspection warrant, OSHA dispatched a compliance officer and trainee to the construction site. The OSHA officers drove between the barrels and parked their vehicle in the cordoned area of the highway. When Tri-State representatives asked them to leave the OSHA officers refused, claiming that the condoned area...

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