Marshall v. Western Waterproofing Co., Inc.

• Decision Date: 23 August 1977
• Docket Number: No. 76-1703,76-1703
• Citation: 560 F.2d 947
• Parties: 5 O.S.H. Cas.(BNA) 1732, 1977-1978 O.S.H.D. ( 22,097 Ray MARSHALL, Secretary of Labor, Petitioner, v. WESTERN WATERPROOFING CO., INC., and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 947

560 F.2d 947

5 O.S.H. Cas.(BNA) 1732, 1977-1978 O.S.H.D. ( 22,097

Ray MARSHALL, Secretary of Labor, Petitioner, v. WESTERN WATERPROOFING CO., INC., and Occupational Safety and Health Review Commission, Respondents.

No. 76-1703.

United States Court of Appeals,

Eighth Circuit.

Submitted June 15, 1977.

Decided Aug. 23, 1977.

John A. Bryson, Atty., U.S. Dept. of Labor, Washington, D.C., argued, and Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., OS&H, Michael H. Levin and Stephen A. Bokat, Washington, D.C., on appendix and briefs, for petitioner.

Richard W. Miller, argued, and Thomas M. Moore, Kansas City, Mo., on brief, for respondents.

Before GIBSON, Chief Judge, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

The Secretary of Labor (Secretary) filed this petition for review of an order of the Occupational Safety and Health Review Commission (Commission) which suppressed evidence obtained from an inspection which allegedly revealed unsafe working conditions.

Following an inspection of its scaffolding equipment at the Woodman Tower Building in Omaha, Nebraska, Western Waterproofing Co., Inc. (Western) was cited for violations of safety standards promulgated pursuant to the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. § 651 et seq. The original citations were issued June 19, 1972, alleging five other than serious violations and four serious violations, with total proposed penalties of $4,105. ¹ Western filed a timely notice of contest and subsequently moved to suppress all evidence gained from the inspection on the grounds that the compliance officers conducting the inspection acted in violation of the Fourth Amendment to the United States Constitution, and that there was a failure to comply with sections 8(a) ² and 8(e) ³ of the Act, and regulations issued by the Secretary implementing these sections.

An administrative law judge vacated the citations on the basis that the inspection was conducted in violation of the presentation of credentials requirement of section 8(a) and of the warrant requirements of the Fourth Amendment. Upon review, the Commission found that the inspection complied with section 8(a) and the Fourth Amendment but not with the "walkaround" provisions of section 8(e). Under the circumstances of this case the Commission held that there was a violation of section 8(e) and affirmed the administrative law judge's vacation of the citations. We have jurisdiction to hear the Secretary's appeal under section 11(a) of the Act, 29 U.S.C. § 660(a), the alleged violations having occurred in Omaha, Nebraska. We reverse.

On June 6, 1972, two of the Secretary's compliance officers were instructed by their area director to investigate a fatal accident which had occurred the previous day at the Woodman Tower Building in Omaha. The fatality occurred when one of Western's employees fell from a scaffold on the eleventh floor to a fifth floor mezzanine after apparently suffering a seizure. Upon arrival at the building at approximately 10:30 a. m., the compliance officers presented their credentials and explained the purpose of their visit to Mr. Millen, the building manager. Mr. Millen explained that the deceased worker had been an employee of Western but that no agent or official of that company was on the premises. The compliance officers requested Mr. Millen to contact the Western official who was in charge of the job. Mr. Millen then left the room and when he returned he said that he had been unable to contact a Mr. Meehan, one of Western's job supervisors.

After being informed that the scaffold was going to be removed that day after working hours, the compliance officers proceeded to inspect the scaffold. They were accompanied on the inspection by the building manager. The officers examined the fifth floor mezzanine to which the employee had fallen, and the roof area which contained the scaffold supports. They also viewed the scaffold from a window in an attorney's office on the eleventh floor outside of which the scaffold was positioned. The officers never physically touched the scaffold.

(1) On the basis of these facts, Western claims that the actions of the compliance officers violated the Fourth Amendment to the Constitution, which limits the authority of government officials to conduct inspections for law enforcement purposes. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). Generally, 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. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Kirvelaitis v. Gary, 513 F.2d 213 (6th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 103, 46 L.Ed.2d 80 (1975); United States v. Gradowski, 502 F.2d 563 (2d Cir. 1974). In Matlock, supra, 415 U.S. at 171, 94 S.Ct. at 993, the Supreme Court held that a search was valid where "permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." The Court went on to define common authority as being where there is "mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Id. at 171 n. 7, 94 S.Ct. at 993.

Mr. Millen, who was the representative of the owner of the building, consented to the inspection and unlocked the doors to the fifth floor mezzanine and the roof with his own keys. He then took the compliance officers to the attorney's office where they obtained permission from the attorney to enter his office to view the scaffold from his window.

In the proceedings below, the Commission concluded that the building manager exercised control over the premises inspected by the compliance officers, that he consented to the inspection and that such consent for the inspection was valid and binding against Western. Western does not claim that the inspection of the scaffold from the attorney's office was itself a violation of the Fourth Amendment. However, Western does argue that it was a fruit of the earlier, allegedly illegal inspections made from the fifth floor mezzanine and roof.

We agree with the Commission that "(t)he compliance officers obtained permission to go onto the roof, the 5th floor mezzanine, and the attorney's office from persons who controlled those areas and were capable of giving such consent." Accordingly, Western lacks standing to raise Fourth Amendment claims since valid consent to entry upon the relevant areas had been given by others who were in control. United States v. Matlock,supra ; Bloomfield Mechanical Contracting, Inc. v. Occupational Safety and Health Review Comm'n, 519 F.2d 1257, 1263 (3d Cir. 1975). Moreover, the scaffold was exposed to public view while suspended on the building, and was also readily observable by the tenants in the building. Therefore, Western could have had no reasonable expectation of privacy concerning the viewing of the scaffolding and, consequently, there was no Fourth Amendment violation. See Katz v. United States, 389 U.S. 347, 351-52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The Commission majority held that the Fourth Amendment is co-extensive with section 8(a). However, due to our findings that there was no Fourth Amendment violation and that violation of section 8(a), if there was any, did not prejudice Western's ability to defend on the merits, we do not address the issue of whether the Fourth Amendment is in all circumstances co-extensive with section 8(a). In short, we hold that where there has been neither a Fourth Amendment violation nor prejudice to the complaining employer as a result of a failure of the compliance officers to present credentials to the employer, suppression of evidence is unjustified under section 8(a). See Accu-Namics, Inc. v. Occupational Safety and Health Review Comm'n, 515 F.2d 828, 833 (5th Cir. 1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976).

Western's primary contention is that the decision of the Commission to suppress the evidence obtained from the inspection should be upheld on the ground that the inspection was not conducted in accordance with the "walkaround" provisions specified in section 8(e) of the Act, in that representatives of Western were not given an opportunity to accompany the compliance officers in their inspection. ⁴

After conducting the inspection the compliance officers returned to their own office, intending to contact Western and inform it of the initial inspection. However, approximately ten minutes after the compliance officers returned to their office, representatives of Western arrived to report the fatality. Although there was a conflict in the testimony, the administrative law judge made the finding which was adopted by the Commission and is supported by the record that the compliance officers discussed a number of apparent violations with Western's representatives, and asked them if they had any questions and if they wished to accompany the compliance officers back to take a look.

In Accu-Namics, Inc. v. Occupational Safety and Health Review Comm'n, supra, the Fifth Circuit affirmed a ruling of a majority of the Commission that a showing of prejudice must be made before a citation will be vacated because of a failure by the Secretary's representatives to comply with section 8(e). See also Ringland-Johnson, Inc. v. Dunlop, 551 F.2d 1117, 1118 (8th Cir. 1977); Brennan v. Occupational Safety and Health Review Comm'n, 487 F.2d 230, 236 (5th Cir. 1973). We choose to follow the rule established in ...