Dorey Elec. Co. v. Occupational Safety and Health Review Com'n
| Decision Date | 14 April 1977 |
| Docket Number | No. 74-2181,74-2181 |
| Citation | 553 F.2d 357 |
| Parties | 5 O.S.H. Cas.(BNA) 1285, 1977-1978 O.S.H.D. ( 21,707 DOREY ELECTRIC COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
E. Kenneth Day, Norfolk, Va., Ira J. Smotherman, Jr., Atlanta, Ga. (Carole T. Frantz, Day & Summs, Norfolk, Va., on brief), for petitioner.
Michael H. Stein, Atty., U. S. Dept. of Justice, Washington, D. C., (Irving Jaffe, Acting Asst. Atty. Gen., New York City, Stephen F. Eilperin, Atty., U. S. Dept. of Justice, William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, and Judith A. Burghardt, Washington, D. C., on brief), for respondent.
Before WINTER, BUTZNER and WIDENER, Circuit Judges.
We deferred ruling on this petition for review until the Supreme Court decided whether an employer, who is charged with a violation of the Occupational Safety and Health Act that may subject him to civil penalties, is constitutionally entitled to a jury trial. In Atlas Roofing Co., Inc. v Occupational Safety & Health Review Commission, --- U.S. ----, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977), the Court held that the Seventh Amendment posed no bar to the disposition of such charges and the imposition of civil penalties by an administrative tribunal. This decision controls the principal issue presented by the petitioner. We turn, therefore, to other issues it raised. *
The citations against the petitioner, Dorey Electric Company, arose as a result of a routine inspection by an OSHA compliance officer who noted that employees of Dorey were working near open, unguarded edges of the fourth floor of an uncompleted apartment building. In addition, he found the worksite perimeter cluttered with piles of foam and scrap lumber which exposed Dorey's employees to possible injury. The evidence presented at the administrative hearing was based primarily on the compliance officer's inspection and a stipulation that the edges of the floors in question were unguarded.
Dorey contends that the inspection of the worksite was without permission, violating its Fourth Amendment right against unreasonable searches. Therefore, according to Dorey, the testimony of the compliance officer must be excluded, and the complaint dismissed for lack of evidence.
The record discloses, however, that, at a worksite conference, Dorey gave permission for the inspection through its foreman. We conclude, therefore, that the testimony of the compliance officer was properly admitted.
Dorey also contends that the Commission failed to show that the absence of guardrails constitutes a "serious offense" under 29 U.S.C. § 666(j). That section provides:
(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...
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