Donovan v. A.A. Beiro Const. Co., Inc., s. 83-2008

• Decision Date: 26 October 1984
• Docket Number: Nos. 83-2008,83-2053,s. 83-2008
• Citation: 241 U.S.App.D.C. 161,746 F.2d 894
• Parties: , 12 O.S.H. Cas.(BNA) 1017, 1984-1985 O.S.H.D. ( 27,090 Raymond J. DONOVAN, Secretary of Labor, U.S. Department of Labor, Petitioner, v. A.A. BEIRO CONSTRUCTION COMPANY, INC., Respondent. A.A. BEIRO CONSTRUCTION COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 894

746 F.2d 894

241 U.S.App.D.C. 161, 12 O.S.H. Cas.(BNA) 1017,

1984-1985 O.S.H.D. ( 27,090

Raymond J. DONOVAN, Secretary of Labor, U.S. Department of

Labor, Petitioner, v. A.A. BEIRO CONSTRUCTION COMPANY, INC., Respondent.

A.A. BEIRO CONSTRUCTION COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION.

Nos. 83-2008, 83-2053.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 25, 1984.

Decided Oct. 26, 1984.

Petitions for Review of an Order of the Occupational Safety and Health Review Commission.

Andrea C. Casson, Atty., Dept. of Labor, Washington, D.C., with whom Robert D. McGillicuddy, Atty., Dept. of Labor, Washington, D.C., was on the brief for Raymond J. Donovan, Secretary of Labor, U.S. Dept. of Labor, petitioner in No. 83-2008 and cross-respondent in No. 83-2053. Dennis K. Kade and Kenneth A. Hellman, Attys., Dept. of Labor, Washington, D.C., also entered appearances for Raymond J. Donovan, Secretary of Labor, U.S. Dept. of Labor.

Arthur I. Leaderman, Vienna, Va., with whom Gerald I. Katz, Vienna, Va., was on the brief for A.A. Beiro Const. Co., Inc., respondent in No. 83-2008 and cross-petitioner in No. 83-2053.

Before WRIGHT and WALD, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

A.A. Beiro Construction Company, Inc. ("Beiro") was one of a number of prime contractors engaged in the construction of the District of Columbia Convention Center. Beiro was cited for both serious and nonserious violations of section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. Secs. 651-78 ("the Act") following an Occupational Safety and Health Administration ("OSHA") inspection of the construction site. ¹ Beiro contested all of the citations, alleging that OSHA lacked proper authority to conduct a warrantless inspection and that Beiro was a victim of vindictive and selective prosecution. Following an evidentiary hearing, the administrative law judge ("ALJ") found that OSHA had obtained proper consent for the inspection and had not vindictively prosecuted Beiro, but vacated three serious and three nonserious citations on substantive grounds. Both the Secretary of Labor ("Secretary") and Beiro timely petitioned the Occupational Safety and Health Review Commission ("the Commission") for discretionary review. The ALJ decision became a final order when no Commissioner directed review. 29 U.S.C. Sec. 661(i). The case is before this court on cross-petitions of Beiro and the Secretary pursuant to section 11(a) of the Act, 29 U.S.C. Sec. 660(a). Beiro claims the ALJ erred in finding that the inspection did not violate the fourth amendment or OSHA regulations and that Beiro was not vindictively and selectively prosecuted. The Secretary claims the ALJ erred in vacating serious citation item 8 and nonserious citation item 2. We affirm the decision of the ALJ on all counts.

I. BACKGROUND

Contrary to standard practice, there was no one prime contractor for the District of Columbia Convention Center construction project. Instead the D.C. Government entered into contracts with a number of "prime contractors," with one, the Fuller-Griffin Company, also being retained as the construction superintendent for the project. Hence, the Fuller-Griffin Company along with Mr. Gordon, the Project Manager for the D.C. Government, represented the District at the worksite.

The Convention Center construction site came up on OSHA's "general inspection" list in early 1981. The inspection was assigned to Mr. Tupper, an OSHA compliance officer. Before Mr. Tupper got around to making the general inspection, OSHA received a complaint about safety conditions at the site from an employee of one of the construction companies at the site, Midwest Steel Erectors. Mr. Tupper was then assigned to service the employee complaint as well as conduct the general inspection.

On March 2, 1981, Mr. Tupper arrived at the construction site to carry out his assigned tasks. He was directed to the office of Mr. Pope, Project Manager for the Fuller-Griffin Company. Mr. Tupper showed his credentials, advised Mr. Pope of the nature of his inspection, and asked Mr. Pope to assemble the representatives of all the contractors at the site. All of the representatives arrived and agreed to cooperate with the inspection, including Midwest Steel Erectors. All except Beiro.

Beiro was one of the prime contractors at the site engaged in erecting basic concrete structures. Beiro's General Superintendent, Mr. Martin, was the last to arrive at the meeting. He asked Mr. Tupper to wait until Beiro's Safety Director, Mr. Braswell, arrived. When Mr. Braswell arrived, he informed Mr. Tupper that he was not going to allow any part of Beiro's work area to be inspected without a warrant. Mr. Tupper responded that his first concern was to investigate the Midwest Steel employee complaint. Mr. Braswell, however, continued to object because Mr. Tupper would be able to view Beiro's work in progress once he was on the site. Mr. Martin and Mr. Braswell then positioned themselves in the doorway so as to physically block Mr. Tupper from exiting the office to perform his inspection. Mr. Tupper called his supervisor, Mr. Holmes, who advised Mr. Tupper to consider Beiro's actions a denial of entry and to leave the worksite.

The following day, March 3, 1981, Mr. Holmes informed Mr. Tupper that all the legal problems had been resolved and that the D.C. Government, owner of the worksite, had consented to the inspection. Mr. Tupper returned to the worksite with two other compliance officers. Mr. Gordon met them at the site and confirmed that the D.C. Government would fully cooperate with the inspection. The OSHA team then proceeded to conduct its inspection beginning with Beiro. Mr. Braswell and Beiro's legal counsel, Mr. Rubenstein, accompanied the compliance officers during the inspection of Beiro.

As a result of this inspection, Beiro was issued serious and nonserious citations, carrying a total proposed penalty of $6900. Beiro contested the citations claiming that OSHA had conducted an illegal inspection. Specifically, Beiro argued that the inspection violated Beiro's fourth amendment rights, the Act, and OSHA regulations. In addition, Beiro claimed to be a victim of vindictive and selective prosecution. The ALJ found that the OSHA inspection was conducted pursuant to valid consent obtained from the D.C. Government and that Beiro's other claims lacked merit. The ALJ decision also vacated a number of the citations on substantive grounds.

On this appeal Beiro continues to argue that OSHA conducted an illegal inspection and that it was a victim of vindictive and selective prosecution. The Secretary argues that the ALJ erred in vacating two of the citations.

II. THE OSHA INSPECTION

The Act authorizes two types of inspections: an inspection pursuant to a general administrative plan, 29 U.S.C. Sec. 657(a); and an inspection pursuant to an employee complaint, 29 U.S.C. Sec. 657(f). Neither section of the Act mentions the need for a search warrant or other process. ² The Supreme Court, however, held in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), that an administrative search warrant is required for nonconsensual OSHA inspections. The Court, nonetheless, noted that "the great majority of businessmen can be expected in normal course to consent to inspection without warrant ...." Id. at 316, 98 S.Ct. at 1822. Since OSHA conducted a warrantless inspection of Beiro, the questions to be addressed by the court are whether OSHA had obtained valid consent to inspect and, if so, whether the inspection exceeded the scope of that consent. The ALJ concluded that "the reliable and creditable evidence" of the record established that "the OSHA inspection of the D.C. Convention Center worksite, and Beiro's construction activities thereon, on March 3 and 4, 1981, was made pursuant to consent properly sought and obtained from appropriate and authorized representatives of the D.C. Government, the owner of the worksite." See ALJ Decision at 43.

A. Consent to Inspection

Consent effective to validate a warrantless search may be given by a person other than the victim of the search. See Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); United States v. Harrison, 679 F.2d 942 (D.C.Cir.1982). The Supreme Court in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), confirmed that proof of voluntary consent is not limited to proof that consent was given by the victim but may be established by showing that "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." Id. at 171, 94 S.Ct. at 993. Common authority, however, is not to be implied from a third party's mere property interest, ³ "but rests rather on mutual use of the property by persons generally having 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, 98 S.Ct. at 1820 n. 7. The touchstone of Matlock's third party consent analysis is that any reasonable expectation of privacy in common areas is lost once joint occupants assume the risk that a co-occupant will allow access to the common areas. ⁴ See United States v. Hendrix, 595 F.2d 883, 885 (D.C.Cir.1979); United States v. Block, 590 F.2d 535, 539 n. 5 (4th Cir.1978); United States v. Sumlin, 567 F.2d 684, 687-88 (6th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). Thus in applying these third party consent principles to the facts of the present case, our inquiry focuses upon determining Beiro's reasonable expectations...