National Engineering & Contracting Co. v. Occupational Safety & Health Admin., U.S. Dept. of Labor

• Decision Date: 25 March 1991
• Docket Number: No. 90-3080,90-3080
• Parties: , 14 O.S.H. Cas.(BNA) 2162, 1991 O.S.H.D. (CCH) P 29,272 NATIONAL ENGINEERING & CONTRACTING COMPANY, and Meroe Contracting & Supply Company, Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 762

928 F.2d 762

59 USLW 2612, 14 O.S.H. Cas.(BNA) 2162,

1991 O.S.H.D. (CCH) P 29,272

NATIONAL ENGINEERING & CONTRACTING COMPANY, and Meroe

Contracting & Supply Company, Petitioners, v. OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT

OF LABOR, Respondent.

No. 90-3080.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 4, 1991.

Decided March 25, 1991.

Kent W. Seifried (argued), Holbrook & Poston, Cincinnati, Ohio, for petitioners.

Barbara A.W. McConnell, Ann Rosenthal (argued), and Cynthia Attwood, U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for respondent.

Before RYAN and SUHRHEINRICH, Circuit Judges, and SILER, Chief District Judge. ^*

RYAN, Circuit Judge.

National Engineering and Contracting Company and Meroe Contracting and Supply Company seek a petition for review of an order of an Occupational Safety and Health Review Commission ("OSHRC") judge that National and Meroe violated certain sections of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq. National and Meroe raise the following issues on appeal:

1. Whether the evidence found by the Occupational Safety and Health Administration ("OSHA") during the inspection of National's and Meroe's work site should be excluded because OSHA violated the companies' constitutional rights by extending their inspection beyond the "plain view" limits imposed by the court.

2. Whether substantial evidence supports the review commission judge's decision that National and Meroe violated various standards of the Act.

3. Whether the judge erred in failing to grant National's and Meroe's motions for summary judgment.

We conclude that the review commission judge properly decided all of these matters and the petition to review should be denied.

I.

National is a construction company which was under contract to the U.S. Army Corps of Engineers from 1986-1988 to construct a flood control project on Mill Creek in Cincinnati, Ohio. Meroe, a subsidiary of National, was a sub-contractor on this job at the time the inspection occurred.

On October 21, 1986, an accident occurred on the site when the boom of a concrete pump truck operated by a National employee contacted an energized overhead power line. Because OSHA's policies and procedures require a comprehensive inspection whenever an accident occurs in a "high hazard" industry such as construction operations, OSHA, with the consent of the Army Corps of Engineers, began an inspection of the site on October 23, 1986.

OSHA officials did not complete their comprehensive inspection at this time because National Engineering obtained a stay of the inspection on October 24, 1986. This stay was lifted on March 11, 1987. On April 20, 1987, OSHA issued citations against National but an administrative law judge vacated these citations on May 3, 1988.

OSHA then voluntarily stayed the investigation until the resolution of National's litigation challenge to the Corps' authority to consent to an inspection and OSHA's authority to inspect a project supervised by the Corps. On November 20, 1987, the district court dismissed National's complaint. National appealed but voluntarily dismissed the appeal on March 15, 1988.

On May 3, 1988, OSHA attempted to complete its comprehensive inspection. It did not seek or obtain a new warrant for access to the job site to conduct the inspection but instead relied on the court order. National refused OSHA access, but the inspection was conducted nevertheless when OSHA again obtained the consent of the Army Corps of Engineers and secured an order from the United States District Court allowing a "plain view" inspection within five days. National Eng'g & Contracting Co. v. United States Dep't of Labor, 687 F.Supp. 1219 (S.D. Ohio 1988). This court affirmed the district court's order on May 8, 1990, National Eng'g & Contracting Co. v. United States Dep't of Labor, 902 F.2d 34 (table) (6th Cir. May 8, 1990) (unpublished slip op. at Nos. 88-3612, 88-3721), cert. denied, --- U.S. ----, 111 S.Ct. 344, 112 L.Ed.2d 308 (1990).

Following its inspection, OSHA issued citations alleging that both Meroe and National were liable for each of six "serious" violations of mandatory safety standards promulgated under the OSH Act. National was also charged with seven other serious and one "nonserious" violation. The compliance officers found some of these violations to be obvious, but other violations were apparent only after the compliance officers' initial observations led them to look more closely at equipment or to question employees.

National and Meroe contested these citations in a hearing before an OSHRC judge. The Commission judge held that OSHA conducted a proper inspection of the site based on the Corps' sufficient consent and the compliance officers' permissible "plain view" procedures. The judge further found that National had committed eight of the "serious" violations and one "nonserious" violation, and that Meroe had committed five of the six cited violations.

II.

A. Constitutionality of the Inspection

Because the appellants appeal from a denial of a motion to suppress, we must consider the evidence in the light most favorable to the government. United States v. Oates, 560 F.2d 45, 49 (2d Cir.1977). OSHA 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). Because the accident of October 21, 1986, triggered OSHA's administrative policy of inspecting accident sites, this inspection was conducted, pursuant to a general administrative plan. National Eng'g, 687 F.Supp. at 1222. The inspection case did not require a warrant because OSHA was acting with the Corps' consent. See Marshall v. Barlow's, Inc., 436 U.S. 307, 316, 98 S.Ct. 1816, 1822, 56 L.Ed.2d 305 (1978); Donovan v. A.A. Beiro Constr. Co., 746 F.2d 894, 898 (D.C.Cir.1984). The Corps, as the contractor of a multi-employer construction site, "possessed common authority over ... the premises or effects sought to be inspected" and thus could validly consent to OSHA's inspection. Beiro, 746 F.2d at 898 (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974)).

In ordering the inspection, the district court stated that: "OSHA shall be allowed only to complete the standard administrative 'plain sight' search interrupted by the filing of this lawsuit, in that the inspection shall not exceed five days in duration and shall proceed with normal 'plain sight' procedures." National Eng'g & Contracting Co. v. United States Dep't of Labor, 687 F.Supp. at 1222. No other limitations were placed on the inspection. Elsewhere in its opinion the court referred to OSHA's obligation to conduct "a comprehensive inspection" whenever an accident occurs in a "high hazard industry," such as construction, and that because of the pending litigation, OSHA had not completed this mandatory "comprehensive inspection" until June 1988. Id. at 1221.

Although the district court referred to "the standard administrative 'plain sight' search" and "normal 'plain sight' procedures," neither the Act nor its regulations refer to "plain view" or "plain sight" inspections or procedures. The "plain view" doctrine, developed by the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), provides that an official who is otherwise authorized to search an individual's property may further inspect, without a warrant, those matters which he can plainly view. The plain view doctrine "may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038. Recently, the Supreme Court further limited this doctrine by requiring police to have probable cause to believe that the item in question is evidence of a crime. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). In Hicks, a police officer, while searching an apartment in response to reports of gunfire, suspected that a stereo was stolen and lifted it slightly to observe and record the serial numbers. The court held that such a separate search, involving the moving, touching, or further inspection of equipment, was unjustified unless the officer had probable cause to believe that the stereo was stolen. Based on this case, the appellants argue that the compliance officers overstepped the scope of the ordered inspection.

The appellee, the Secretary of Labor, argues that the compliance officers adhered to the law regulating OSHA plain view searches. The district court's order referred interchangeably to OSHA's authority to conduct "plain view" and "comprehensive" searches. The court imposed no specific restrictions on the inspection aside from the five-day limitation. The Secretary contends that the court's "plain view" language

was an expression of the practical limits of third party consent. The basis for accepting such consent is the judicial recognition that parties do not have a reasonable expectation of privacy in premises that they share with another, particularly as to items or conditions in plain view within those premises.

The D.C. Circuit's opinion in Beiro, 746 F.2d 894, supports the Secretary's approach. In Beiro, a case also dealing with the legitimacy and scope of an OSHA general administrative search conducted pursuant to third party consent, the D.C. Circuit stated that "[t]here are limits on searches or inspections authorized by third party consent. While authority to consent to the search of a common area extends to most objects in plain view, it does not automatically extend to the interiors of every enclosed space within the area." Beiro, 746 F.2d at 901-02. In the search at issue in Beiro, the compliance officers spoke with employees to confirm that a truck seat belt was inoperable, closely inspected a drill cord to note the...