SECRETARY OF LABOR,

Complainant,

v.

TRI-STATE STEEL CONSTRUCTION, INC.,

and

NATIONAL ENGINEERING & CONTRACTING COMPANY,

Respondents.

OSHRC Docket Nos. 89-2611 & 89-2705 (Consolidated)

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

Introduction

These consolidated cases arise out of an Occupational Safety and Health Administration ("OSHA") inspection of a multi-employer construction worksite.  Both National Engineering & Contracting Company ("National") and its wholly-owned subsidiary, Tri-State Steel Construction, Inc. ("Tri-State"), were subcontractors on that project.  As a result of the Inspection, OSHA issued these two employers a total of five citations, alleging numerous violations of the Act.  Following a hearing on the merits of the five citations, the Review Commission's administrative law judge ("the ALJ" or "the judge") issued his decision, in which he affirmed most of the alleged violations, vacated others, and rejected the Fourth Amendment defense that had been raised jointly by the two employers.  For the reasons that follow, we affirm the judge's rulings on the Fourth Amendment issues that are before us.  However, we reverse the judge and vacate the only citation item-citation no. 1, item 9, in Docket No. 89-2705--that remains before us for a decision on the merits.[[1]]

I. THE VALIDITY OF THE WARRANTLESS INSPECTION

A. Background

The construction project at issue was a highway rehabilitation project that is referred to throughout the record as "Project 8."  This project, involving the reconstruction of 36 bridges, covered four miles of roadway on three interstate highways that converge in or near Cincinnati, Ohio.  Work was begun on the project in February 1989 and was still continuing at the time of the hearing in these cases (in August 1990).

The prime contract on project 8 was between the Ohio Department of Transportation ("ODOT" or "the project administrator") and John R. Jurgensen Co. ("Jurgensen" or "the general contractor"). Jurgensen in turn had a subcontract with National covering all of the bridge reconstruction work except for "deck overlay."  And National had a subcontract with Tri-State to perform all of the steel erection work that was involved in National's contract with Jurgensen.

Because this project involved work on sections of interstate highway that were elevated over the city streets of downtown Cincinnati, it was necessary to develop a 348-page-long traffic control plan to assure that the work was performed safely and sequentially (in planned phases), while allowing traffic to continue to flow on those lanes that were not currently being rehabilitated.  The plan was developed by ODOT and then approved by the Federal Highway Administration ("the FHWA").   Jurgensen had exclusive responsibility for implementing the plan, including placement of barrels and traffic control devices as directed in the plan.  It is undisputed that neither National nor Tri-State had any contractual responsibility for traffic control measures.  Moreover, any changes in the plan could only be implemented following ODOT approval.

The events leading up to the challenged inspection in these cases began on Thursday evening, April 27, 1989, when Jurgensen made certain changes in the placement of barrels and traffic control devices.  These changes allowed National and Tri-State employees to begin working in the two center lanes of two adjoining, while traffic continued to flow on the two outer lanes of those bridges. [[2]]  Following the directions stated in ODOT's traffic control plan, Jurgensen rearranged the barrels in a V-shaped pattern, with the two center lanes in the center of the V. Barrels and traffic control devices were also set up on the roadway leading up to bridge 6 in an attempt to compel motorists to go either to the left or to the right of the blocked-off work area.   The barrels were placed at 50 foot intervals beginning more than a mile before reaching the work area and continuing on both sides of the work area itself.

On Friday morning, April 28, rush hour traffic confronted this new traffic configuration for the first time, and serious problems quickly developed.   Many motorists found themselves being channeled into lanes that took them in directions they did not want to go.  On several occasions, motorists responded to the discovery that they were in the wrong lane by passing between the barrels, over the two "blocked-off" center lanes, and into the opposite outer lane, where they then re-entered the traffic flow.[[3]]  In taking this route, they passed right through the area where National and Tri-State employees were working, creating a hazard to the work crews.

As the hazard became increasingly apparent that Friday morning, the project superintendent for National and Tri-State ordered measures taken to protect the employees.[[4]]  Trucks and other vehicles were moved into position to create barricades around the end dams and expansion joints where the employees were working.   See supra note 2.  In addition, guardrails that had been removed from the parapets were placed on the ground between the barrels.  However, state inspectors soon ordered removal of these stacked guardrails because they were creating a hazard to the motorists.  Finally, project superintendent Taylor had his office worker contact higher-level state employees.  As a result of this discussion, ODOT ordered Taylor to remove the employees from the bridges.

At the contractors' routine bi-weekly progress meeting that same morning, Taylor raised the above-described hazard, on Fort Washington Way, as an issue.  After discussion, ODOT agreed to allow Jurgensen to bring in additional barrels, thereby reducing the intervals between barrels from 50 to 25 feet.[[5]]  For unexplained reasons, however, this doubling of the barrels was limited to the area motorists passed through before reaching bridge 6.  Thus, it had little or no effect on the hazard created by the vehicles crossing through the work area.  The Respondents, however, made some efforts to protect their work crews--by placing trucks and welding machines in strategic positions and by using employees with "slow" signs as a supplemental traffic control measure.
On May 4, 1989, almost a week after the hazard first arose, a representative of the worksite employees filed a formal complaint of unsafe working conditions with the local OSHA area office.[[6]]  The complaint described the hazard that existed on Fort Washington Way and identified Jurgensen as the employer. [[7]]  OSHA compliance officer Cannon ("CO Cannon" or "Cannon") and CO trainee Boatman arrived at the Fort Washington Way worksite to investigate the complaint's allegations; within hours of receiving the complaint.[[8]]  Upon arriving at bridge 6, CO Cannon drove his van between two barrels and parked in the two "blocked-off" center lanes of the highway.  Almost immediately after stepping out of the van, CO trainee Boatman began videotaping the scene, and he continued videotaping on an intermittent basis throughout the two hours the CO's spent at the worksite.

Upon reaching the work crew, CO Cannon introduced himself and presented his credentials to the first worker he met.  He asked that worker to identify the supervisor in charge of the worksite.  The worker directed him to Tri-State's general foreman Hunter, see supra note 4, and Cannon proceeded to represent his credentials to Hunter.  At this point, Cannon learned for the first time that all of the exposed workers were employed by Tri-State--apparently, the National employees had completed their work in the area, see supra note 2--and not by Jurgensen, the employer that was named in the complaint.

Hunter did not express any objection to the presence of the OSHA compliance officers, but he did inform them that he would have to notify his supervisor or someone else from National. Approximately 20 to 30 minutes after the arrival of the OSHA inspectors, project superintendent Taylor, Hunter's supervisor, and assistant project superintendent Febus arrived at the work area. They apparently came up to the work area from the office trailer shared by National and Tri-State, which was located directly below one of the sections of elevated highway that was being rehabilitated.   According to CO Cannon, these management officials did not object to his presence at the worksite, although they did ask that the entire group go down to the office trailer to discuss the matter.  Cannon refused this suggestion on the ground that he was dealing with an imminent danger situation that "needed to be addressed now."   For this reason, he held an abbreviated opening conference with Taylor, Febus, and Hunter at the work area in question rather than a formal conference at the office trailer.

Shortly after the arrival of Taylor and Febus, a Jurgensen representative and ODOT's onsite representative in charge of traffic control also arrived at the work area.  Finally, approximately an hour after the inspectors' arrival, the attorney representing both National and Tri-State arrived. Immediately upon joining the group, the attorney formally demanded that the CO's cease their inspection and obtain an administrative inspection warrant. Cannon responded, first, by refusing the request, arguing that he did not need a warrant because he was on public property, and, second, by continuing his inspection and investigation.  As indicated previously, the CO's remained at the worksite for approximately two hours.[[9]]  They then went down to the office trailer area, where they met with representatives of Jurgensen, the general contractor.

There was no patrol car at the site on May 4 (or indeed at any time prior to OSHA's arrival). However, CO Cannon received assurances, that a patrolman would be sent out the next day for the purpose of ticketing motorists who disobeyed the existing traffic signals by passing through the work area.  Cannon was already back at the work area on Friday morning, May 5, when the patrolman arrived at approximately 9:00 a.m. However, this measure also failed to abate the hazard.  Thus, the CO observed that, while the patrolman was in the process of writing out a ticket to one offending motorist, one or two others would pass between the barrels and through the work area.  On Friday, the hazard was alleviated only when the employees walked off the site because of a strike, which was not related to the hazard. Tri-State's employees were back at work on bridges 6 and 2 by the following Monday morning, if not earlier.

Cannon testified that he returned to the work area on Monday, May 8, in a continuing effort to resolve the traffic control problem and also to conduct employee interviews.  He again limited his inspection to the work area on bridges 6 and 2, and he again observed that, while the patrolman was writing out a ticket to one offending motorist, others at the same time were passing through the work area unimpeded.

At some time during the morning of May 8, the CO returned to his office to meet with the area director.  Subsequently, the area director and Jurgensen's president reached agreement by telephone on a means to eliminate the hazard.  Jurgensen agreed to reduce the distance between barrels to 10 feet (by adding more barrels on both sides of the work area) and then to erect a "snow fence" connecting the barrels along one side of the work area.  After obtaining ODOT's approval for these changes in the traffic plan, Jurgensen fully implemented them by the end of the work day on Monday.

By then, OSHA's attention had already shifted elsewhere.   During a telephone call made from the worksite to the OSHA office earlier that same morning, the area director instructed Cannon to expand his inspection to cover the entire worksite, i.e., all of project 8. Accordingly, the CC attempted to set up an opening conference with representatives of all of the contractors that were then working on the project.  This fell through, however, when Jurgensen's representative, and also the representative of National and Tri-State, demanded that Cannon obtain an administrative inspection warrant before expanding his inspection beyond the geographical area and physical hazard described in the employee representative's complaint.  OSHA therefore obtained such a warrant on the following day, May 9.  On the day after that, May 10, Cannon again returned to the worksite to serve that warrant and to begin the second phase, of his inspection. which we will discuss separately infra.[[10]]

B. Analysis

On review, the Secretary presents three alternative legal theories in support of her contention that the warrantless phase of the inspection did not violate the.  Fourth Amendment.[[11]]  The ALJ held that the warrantless inspection was valid and apparently based his holding on two of the Secretary's arguments...validity under the "public right-of-way" rationale and validity under the "plain view"' doctrine.  For the reasons that follow, we reject the judge's reasoning, but not his ultimate conclusion.  Instead, we agree with the Secretary's third alternative theory..that the warrantless inspection was valid under the "open fields" doctrine.  We therefore affirm the judge's determination that the Respondents' Fourth Amendment rights were not violated, but for reasons different than those stated by the judge.

The first theory that we address is essentially the argument that CO Cannon made when he rejected the demand of the Respondents' attorney to discontinue his inspection and obtain an administrative inspection warrant.  As indicated, the CO's response was that he did not need to get a warrant because he was on public property.  Both the ALJ and the Secretary have supported this claim.   However, for the reasons that follow, we disagree.

The basis for this "public right-of-way" argument is the decision of the United States Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) ("Barlow's"). In Barlow's, the Court held that the Fourth Amendment generally prohibits warrantless, nonconsensual inspections of business establishments under the Act. More specifically, it held that, because the employer in that case refused to agree to a voluntary inspection, OSHA was required under the Fourth Amendment to obtain an administrative inspection warrant before it could inspect "the nonpublic area" of the employer's manufacturing establishment:

The critical fact in this case is that entry over Mr. Barlow's objection is being sought by a Government agent.  Employees are not being prohibited from reporting OSHA violations.  What they observe in their daily functions is undoubtedly beyond the employer's reasonable expectation of privacy.  The Government inspector, however, is not an employee.  Without a warrant he stands in no better position than a member of the public.  What is observable by the public is observable, without a warrant, by the Government inspector as well.... [However, the fact that an employer permits employees into a work area) furnishes no justification for federal agents to enter a place of business from which the public is restricted and to conduct their own warrantless search.

436 U.S. at 314-15 (emphasis added). See also Concrete Const. Co., 15 BNA OSHC 1614, 1617, 1992 CCH OSHD 29,681, p. 40,240 (No. 89-2019, 1992) (the Fourth Amendment "does not require a warrant for a nonconsensual inspection of a workplace to the extent the workplace is open to the public").

Accordingly, in order for the Secretary to prevail on her "public right-of-way" theory, we must view the compliance officer, acting without a warrant, as being "in no better position than a member of the public."   Barlow's. 436 U.S. at 315.  We must conclude that the CO limited his inspection to areas that were open to the public and did not enter areas "from which the public is restricted." Id. This we cannot do.  At the hearing, the compliance officer admitted that the warrantless phase of the inspection took place in a work area that the public was not permitted to enter and that the "purpose" of placing the barrels around the two center lanes "was to keep members of the motoring public out of the area."  In addition, the Respondents have argued that the contract between ODOT and national had the effect of removing those lanes that were being reconstructed from public use and placing them under the exclusive control of the Respondents.  Finally, we emphasize the testimony of CO Cannon concerning the second and third days of his inspection.

Cannon testified that, on both of those days, a patrolman was sent out to the work area in question to issue tickets to motorists who drove between the barrels and across the two center lanes.  We conclude that this unrebutted testimony establishes conclusively that the work area was closed to the public and not part of the public right-of-way.  Motorists could not have been ticketed for driving in areas that were open to the public.[[12]]

For this same reason, we also reject the second of the Secretary's three alternative theories.  The Secretary argues, and the judge held, that the warrantless inspection of the work area in question was justified under the "plain view" doctrine, which is a recognized exception in the case law to the Fourth Amendment's warrant requirement.  We agree, however, with the Respondents that the "plain view" doctrine does not apply to the challenged inspection.

There are two significant limitations to the "plain view" doctrine, both of which render it inapplicable to the cases now before us.   "The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence."  Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) ("Coolidge").  Instead, the "plain view" doctrine can only be applied when the OSHA inspectors make their "'plain view" observations from a location where they are legally justified in being. See id, 403 U.S. at 466; Illinois v. Andreas, 463 U.S. 765, 771 (1983) ("Andreas").


"The second limitation is that the discovery of evidence in plain view must be inadvertent....[W]here the discovery is anticipated, [w]here the police know in advance the location of the evidence and intend to seize it, the situation is altogether different."' Coolidge, 403 U.S. at 469-70. See also id., 403 U.S. at 471 n.27 ("This Court has never permitted the legitimation of a planned warrantless seizure on plain view grounds. . . and to do so here would be fla ly inconsistent with the existing body of Fourth Amendment law"); United States v. Marbury, 732 F.2d 390, 399 (5th Cir. 1984)("Marbury").

The cases now before us are distinguishable from the "plain view" doctrine cases on both of these key grounds.  Thus, the OSHA CO's were not "lawfully in a position," see Andreas, 463 U.S. at 771, to observe the conditions they observed during their warrantless inspection of the work area described in the employee representative's complaint.  Instead, they were trespassing in an area that was open only to the Respondents' employees and closed off to the general motoring public. Moreover, the observations of the CO's were hardly inadvertent.  On the contrary, they went to the workplace for the express purpose of investigating a complaint of unsafe working conditions and inspecting the work area described in the complaint. In sum, we conclude that the "plain view" doctrine cannot be used to justify a three-day-long warrantless OSHA inspection conducted over the employer's clearly-stated objections and demands for a warrant.[[13]]

Nevertheless, although we disagree with the judge's reasoning, we agree with his ultimate conclusion that the warrantless inspection at issue here did not violate the Fourth Amendment. Indeed, the Fourth Amendment did not even apply in this context because the warrantless phase of the inspection fell within the Amendment's "open fields" doctrine. Under the "open fields" doctrine:

[A]n individual may not legitimately demand privacy for activities conducted out of doors, in fields, except in the area immediately surrounding the home [i.e., the "curtilage," see infra note 14].... This rule is true to the conception of the right of privacy embodied in the Fourth Amendment....

.... There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields....[Therefore,] the asserted expectation of privacy in open fields is not an expectation that "society recognizes as reasonable."

Oliver v. United States, 466 U.S. 170, 178-79 (1984) ("Oliver"). Similarly, we conclude that there is no societal interest in protecting the asserted privacy of the highway rehabilitation activities that are at issue before us in these proceedings.[[14]]

We recognize, of course, that the area inspected during the warrantless first phase of the inspection at issue here was not a field it all, but rather an elevated section of interstate highway. Nevertheless, the work area can still be classified as an "open field" for Fourth Amendment purposes: "[T]he term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage.   An open field need be neither 'open' nor a 'field' as those terms are used in common speech."  Id., 466 U.S. at 180 n.11. See, e.g., United States v. Fahey, 769 F.2d 829 (1st Cir. 19.) ("open fields" doctrine applied to mining site in open desert); Marbury, 732 F.2d at 398 (doctrine applied to large tract of commercial property, including gravel pits and roadways).

The Respondents challenge the Secretary's reliance on the "open fields" doctrine by claiming that the doctrine does not apply here because it only "permits a warrantless search upon property from which no effort has been made to exclude the public."  We agree with the Secretary, however, that "[i]t is only by ignoring extensive caselaw that such a statement could be made."  Thus, for example, in Dunn, supra note 11, the law enforcement agents made a warrantless entry onto a 198-acre ranch, crossing over the perimeter fence and three interior fences, including a barbed-wire fence, in order to reach their vantage point where they could look into the interior of a barn.  Nevertheless, the Court held that, under the "open fields" doctrine, there was no Fourth Amendment violation--even if it accepted the rancher's argument that the barn was "an essential part of his business."  480 U.S. at 303-04.[[15]]  See also Ackermann Enterprises, Inc., supra note 13, 10 BNA OSHC at 1712, 1982 CCH OSHD at p. 32,839 ("There is no violation of fourth amendment rights when a government agent's observations occur in 'the open fields'. . . even if the government agent trespasses on private property to make his observations").[[16]]

II. THE VALIDITY OF THE EXPANDED INSPECTION

A. Background

1. The warrant application

On May 9, 1989, the day after the three contractors (Jurgensen, National and Tri-State) blocked its attempt to expand its inspection beyond the Fort Washington Way work area, OSHA went into the United States District Court for the Southern District of Ohio, Western Division (hereafter "the district court") to obtain an administrative inspection warrant.  OSHA sought authorization for a full-scope, comprehensive inspection of project 8.  In support of this warrant application, OSHA filed an affidavit executed by OSHA Compliance Officer William J. Wilkerson ("CO Wilkerson" or "Wilkerson"), a "duly authorized [OSHA] agent," and four attached exhibits, which we describe herein.

Under the Supreme Court's Barlow's decision, the Secretary's burden of proof. in seeking this full-scope inspection warrant, was to establish "administrative probable cause."  This she could do by meeting either of the Court's two alternative tests--the "specific evidence test" or the "administrative plan test": "For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that ... a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources ...... Barlow's, 436 U.S. at 320-21. Here, OSHA filed a hybrid warrant application that sought to justify a full-scope inspection of project 8 under either or both of the Court's alternative tests.

Specifically, the warrant application filed on May 9 relied upon three primary factors as the basis of OSHA's probable cause showing:

(1) The Section 8(f)(1) Inspection. In paragraph 2 of his affidavit, CO Wilkerson informed the magistrate of OSHA's receipt of the employee representative's complaint on May 4, 1989, and the resulting investigation of that complaint, including the workplace inspection, on May 4, 5, and 8, 1989.  A summary of the complaint, see supra notes 6 & 7, was attached to the application as Exhibit A. Wilkerson averred that OSHA's complaint inspection had been required under the terms of section 8(f)(1) of the Act, 29 U.S.C. 657(f)(1), because OSHA had determined that: (1) "[t]he complaint meets the requirements of Section 8(f)(1) of the Act," (2) "the complaint alleges serious conditions that are Covered by 29 CFR 1926.201, 29 CFR 1926-202, Section 5(a)(1) of the Act and other parts," see supra note 8, and (3) "there are reasonable grounds to believe that such violations exist or have existed during the last six months so as to require an inspection under Section 8(f)(1) of the Act."[[17]]

Wilkerson also described the results of OSHA's section 8(f)(1) inspection, as follows: The walkaround inspection, which included the hazards described in the complaint, has resulted in the identification of an imminent danger safety hazard and the immediate abatement of same.  The additional safety hazards observed thusfar have included:

--improper use and storage of flammable gases,

--failure to remove welding rods from cable clips,

-- inadequate protection of workers from moving vehicular traffic.

Finally, Wilkerson Informed the magistrate of the refusal of Jurgensen, National, and Tri-State to permit the inspection "to continue" and of the demand of these three employers that OSHA obtain an administrative inspection warrant.

(2) The Administrative Plan.  In paragraph 3 of his affidavits CO Wilkerson informed the magistrate of OSHA's claim that its request for a full-scope administrative inspection warrant was being made pursuant to "a general administrative plan for the enforcement of the Act derived from neutral sources" within the meaning of Barlow's.  Specifically, Wilkerson averred that "[t]he desired construction worksite inspection is also part of an inspection and investigation program designed to assure compliance with the Act, is authorized by Section 8(a) of the Act, and is based upon injury rates experienced within certain designated industries."  The magistrate was notified that "[c]onstruction industries . . . are designated high rate industries due to their high injury and fatality rates" and that OSHA's request for a full-scope warrant was justified under the relevant provisions of its administrative plan, which were attached as Exhibits B and D of the warrant application.

In particular, Wilkerson based this claim on the following provisions of the administrative plan, as set forth in section IX A.9. of the FOM:

9. Scope of Inspection.  The scope of complaint inspections shall be determined in accordance with the guidelines given in this section....

b. Construction and Longshoring Inspections.  The inspection of a complaint in the construction and Iongshoring industry shall normally he a comprehensive inspection unless a substantially complete inspection of the worksite has been conducted within the last quarter.  In that case the procedures in d. shall apply

d. Low-hazard Industry Complaint Inspections.  [A] complaint inspection in a low-hazard industry shall generally be limited to workings conditions identified in the complaint.  If, however, the CSHO believes that the scope of the inspection should be expanded because of information indicating the likelihood of serious hazards in other portions of the plant...the supervisor shall be contacted.  A decision will then be made on the basis of the information that is available whether the inspection is to he extended.[[18]]

3. Third-Party Consent.  In paragraph 2 of his affidavit, Wilkerson informed the magistrate that OSHA had obtained third-party consent for the desired inspection of project 8.[[19]]  Specifically, Wilkerson averred that representatives of ODOT and of the FHWA had given their consent to an inspection of the entire project.  This consent was obtained shortly after the representatives of Jurgensen, National, and Tri-State refused, on May 8, to permit the inspection to continue in the absence of a warrant.  Wilkerson also implied that, due to federal funding of project 8, the contractors on the project were all bound by a contractual provision that allowed OSHA to inspect the project for compliance with OSHA regulations.  Attached to the warrant application as Exhibit C was a copy of that contractual provision, which provided, as follows:

When the United States Government pays all or any portion of the cost of a project, the Federal laws and rules and regulations made pursuant to such laws must be observed by the Contractor, and the work shall be subject to the inspection of the appropriate Federal agency.

2. National's motion for a stay

Also on May 9, 1989, National instituted its own action in the district court by filing a Motion for Stay of Inspection.  In this motion, National urged the court to "stay" OSHA from conducting an expanded, full-scope inspection of project 8.  Both the Secretary's warrant application and National's motion for a stay were assigned to U.S. Magistrate Jack Sherman. Jr.

In its memorandum supporting the motion, National corroborated CO Wilkerson's statements that OSHA had received a complaint on May 4 concerning the inadequacy of traffic control measures on Fort Washington Way and had sent inspectors to the worksite to investigate the complaint and inspect the work area.  National further informed the magistrate that OSHA had "substantially completed" its complaint inspection, but that it now plans to inspect the entire work zone, which consists of a very broad area of refurbishing construction, and to review matters other than those involved in traffic control."  The employer indicated that it had objected from the outset to the section 8(f)(1) complaint inspection and that it was now objecting to OSHA's attempt to expand the inspection.  National emphasized that it "had no responsibility"' for the traffic control measures that were at issue in the complaint since the "procedures" were designed by the state, approved by the federal government, and implemented by Jurgensen, the general contractor.  It acknowledged, however, that its employees were working behind the traffic control devices that were the subject of the complaint.

National also confirmed in its memorandum that "the Federal government along with the State of Ohio is funding this refurbishing work."   It therefore implicitly acknowledged that it was bound by the above quoted contractual provision that the Secretary attached to her warrant application.   National contended, however, that OSHA was not the "'appropriate Federal agency" to conduct inspections under that provision because "Ohio inspectors" were at the worksite "on a daily basis," at least in part for the purpose of reviewing safety matters.  Thus, it concluded, the federal government was using the state of Ohio to enforce "the appropriate safety standards".

Finally, National corroborated Wilkerson's averment that OSHA had obtained third-party consent to the requested expanded inspection:

[I]t appears that OSHA has attained the approval of the Federal Highway Administration . . and the State of Ohio for its inspectors to enter the work zone.  In this regard, it is relying on the jurisdiction that these agencies have over the actual highway as well as the contract which subjects the work to a federal inspection.

However, National contended that "this consent does not and cannot extend to conducting an inspection beyond that permitted under the plain sight rules."  See supra note 19.  Therefore, in the event the magistrate did not issue the requested order prohibiting OSHA from expanding its inspection, the employer alternatively urged him to limit OSHA "to a plain sight inspection" of the remainder of project 8.

3. The warrant

The third key event that took place on May 9, 1989, was Magistrate Sherman's issuance of the full-scope administrative inspection warrant requested by OSHA.  The magistrate did not include any limitation on the scope of the authorized inspection, such as the "plain sight" limitation sought by National in its alternative argument.  OSHA served the warrant the next day, and the second phase of the OSHA inspection was therefore conducted pursuant to the authority granted by the warrant.

Beginning with the filing of her opposition to National's motion for a stay, see supra note 18, the Secretary has consistently asserted that Magistrate Sherman reviewed both her warrant application and National's stay motion before issuing the challenged warrant.  Nevertheless, despite several opportunities to dispute the Secretary's claim, the Respondents have never taken issue with it.   Neither has Magistrate Sherman, although he also had the opportunity to challenge the accuracy of the Secretary's statement.  Under these circumstances, we accept as fact that the magistrate reviewed National's stay motion and supporting memorandum before issuing the challenged administrative inspection warrant.

B. Judge's Decision and Arguments of the Parties

In their post-hearing brief, the Respondents argued before the ALJ that OSHA had had no basis for even seeking a warrant to expand its inspection beyond the matter raised and the area described in the section 8(f)(1) complaint.  In their view, OSHA's inspection was completed when the CO determined on Monday, May 8, that the hazard described in the complaint had been fully abated.  The Respondents also emphasized that the complaint had been directed against Jurgensen and not against either of them. Indeed.  OSHA's investigation had revealed that National and Tri-State were not responsible for either designing or implementing the traffic control plan that was at the heart of the problem.

In his decision, the judge considered and rejected the Respondents' position.  He implicitly concluded that the Secretary, in her warrant application, had established "administrative probable cause" for a full-scope inspection under either or both of the alternative tests set forth in Barlow's the "specific evidence test" and the "administrative plan test."   Specifically, the judge found that "[t]he warrant application herein was based not only on the plain view observation of the Compliance Officer of alleged violations ... but [also] on a detailed explanation of the general inspection plan OSHA utilizes which is based on neutral criteria."  The judge concluded that "there was valid reason for the issuance of the warrant, and [therefore] there is no basis for suppression of the evidence" gathered under the warrant.

On review, the Respondents restate the arguments that they made before the ALJ.  In addition, they argue that there was "no basis for citing Tri-State for the conditions alleged in the complaint," as demonstrated by (1) the judge's decision to vacate the only citation Issued as a result of the section 8(f)(1) investigation, see supra note 12, and (2) CO Cannon's opinion testimony that neither 29 C.F.R. 1926.201 nor 29 C.F.R. 1926-202, see supra note 8, applied to the conditions described in that citation.  [[20]] They further note that it was the general contractor, and not the Respondents, who eventually abated the hazard described in the section 8(F)( 1) complaint.

The Secretary on review argues that the judge was correct in concluding that the warrant issued on May 9, 1989, was valid.  She focuses, however, on a number of alternative arguments that assertedly make it unnecessary for us to rule on the validity of the warrant.[[21]]

C. Analysis

We conclude that the evidence gathered by OSHA during the second phase of its inspection of project 8 was gathered pursuant to a valid administrative inspection warrant, specifically, the warrant issued by Magistrate Sherman on May 9, 1989.  The warrant was valid because OSHA's warrant application established administrative probable cause for a full-scope inspection under the Barlow's "specific evidence test."

As detailed in Part ll A of this decision, supra, the warrant application filed with the district court was a hybrid application; that is, OSHA attempted to establish administrative probable cause for a full-scope inspection under either or both of the two alternative tests set forth in Barlow's.  Thus, the application provided the magistrate with "specific evidence" of violations discovered during the course of the section 8(f)(1) inspection.  It also presented him with OSHA's claim that a full-scope inspection was authorized under a general administrative plan for enforcement of the Act, along with the facts that OSHA relied upon in selecting project 8 for a full-scope inspection under the terms of that plan.  In addition, CO Wilkerson informed the magistrate of other matters-such as the contractual provision authorizing inspections by "appropriate" federal authorities and OSHA's obtaining of third-party consent to the expanded inspection--that were clearly relevant to the issues pending before the magistrate, but that did not fall neatly into either of the two Barlow's tests.

Because of the hybrid nature of this warrant application, we conclude that the cases now before are analogous to two other cases in which federal appellate courts have upheld full-scope administrative inspection warrants that were issued in response to similar warrant applications.  In re Cerro Copper Prods., 752 F.2d 280 (7th Cir. 1985); In re Inspection of Workplace (Carondelet Coke Corp.), 741 F.2d 172 (8th Cir. 1984). In both Cerro Copper and Carondelet Coke, the Secretary argued that a full-scope inspection was justified under the terms of a "general administrative plan for the enforcement of the Act derived from neutral sources" within the meaning of Barlow's. However, in neither of these cases did the Secretary rely solely on her administrative plan. Instead, in both Cerro Copper and Carondelet Coke, the Secretary provided the magistrate with supplemental evidence to strengthen her claim that a full-scope inspection should be authorized.

Following the Secretary's lead, the courts in both of these cases examined the warrant applications under the Barlow's "specific evidence test" rather than the Court's "administrative plan test."   Accordingly, the courts in both cases concluded that, under the specific facts of the cases then before them, a "wall-to-wall inspection" would not be unreasonable and therefore would not be in violation of the Fourth Amendment.  See Cerro Copper, 752 F.2d at 283; Carondelet Coke, 741 F.2d at 177.   Although the factors favoring a full-scope inspection in the cases now before us are different from the factors that were considered by the Seventh and Eighth Circuits, we reach the same conclusion that those courts reached.  We conclude that the combination of factors set forth in the warrant application filed by OSHA on May 9, 1989, established administrative probable cause for a full-scope inspection under the "specific evidence test."

Chief among those factors, in our view, was the third-party consent given by the project administrator (ODOT) and the FHWA for a full-scope inspection of project 8.  This consent was particularly significant here because (1) the contractors were contractually obligated to comply with pertinent Federal laws, rules, and regulations, and (2) they had contractually subjected themselves to the possibility that these obligations might be enforced, through workplace inspections, by "the appropriate Federal agency."  The third-party consent that was given here was given to OSHA, the federal agency with statutory authority to enforce workplace safety and health standards.  In all likelihood, this was precisely the kind of inspection that was anticipated when this contractual provision was drafted and included in the governing contracts.

In any event, as the Respondents themselves conceded in their arguments before Magistrate Sherman, this third-party consent was sufficient, even in the absence of the warrant or even in the absence of the contractual provision, to authorize an OSHA inspection of all of the work areas in project 8 that were in "plain sight" of the OSHA inspectors.  On the record created before us, we conclude that most of the inspected workplace (project 8) was in "plain sight" since the contractors were performing their work primarily, if not exclusively, on elevated bridges and highways.

Nevertheless. as the Secretary conceded in her arguments before the magistrate, a warrant was necessary because OSHA did not intend to limit, and subsequently did not limit, her expanded inspection to a viewing of conditions that were in plain sight.  For example, several of the contested citation items at issue in both Docket No. 89-2611 and Docket No. 89-2705 were based on information that CO Cannon obtained as the result of his exhaustive examination of records and documents (e.g., material safety data sheets) that were maintained by National and Tri-State in their office trailer.

OSHA therefore supplemented its showing of administrative probable cause by also establishing that a full-scope inspection was called for under the provisions of a general administrative plan for the enforcement of the Act.[[22]]   Indeed, as the Secretary pointed out to the magistrate, see supra note 18, a full-scope inspection would have been justified even if the Respondents had been part of a "low-hazard industry."  Under the terms of the Secretary's then-effective administrative plan, a section 8(f)(1) complaint inspection in a low-hazard industry could be expanded to cover the entire worksite if the complaint inspection led to "information indicating the likelihood of serious hazards in other portions of the [workplace]."

Here, we conclude that OSHA's three-day complaint inspection and investigation provided it with ample reason to believe that it was likely to discover other serious hazards in other project 8 work areas.  To begin with the investigating CO's determined almost immediately that the section 8(f)(1) complaint was meritorious.   Indeed, CO Cannon believed that the conditions described in the complaint and confirmed by his inspection and investigation constituted not only a serious violation of section 5(a)(1) of the Act, but also an imminent danger to the exposed employees. In addition, his investigation disclosed that the employees had been repeatedly exposed to this imminent danger for a week prior to OSHA's arrival on the scene, despite the fact that the hazard was recognized as such by everyone involved from the first day that it arose.  Also, it took several more days after OSHA's arrival before abatement was finally accomplished.  Finally, although the work area inspected during the section 8(f)(1) investigation was relatively small, OSHA observed other serious hazards in addition to the imminent danger.

Therefore, even if the section 8(f)(1) inspection had been conducted in a "low-hazard industry," the limited inspection would have provided OSHA with sufficient grounds to justify an expansion of the inspection to the entire workplace.  Here, however, the inspection was not in a low-hazard industry. Instead, the workplace was a large, multi-employer construction project. Accordingly, CO Wilkerson informed the magistrate that construction industries are "high rate industries due to their high injury and fatality rates" and that OSHA's then-effective administrative plan provided that section 8(f)(1) inspections of such construction worksites "normally" would be "'comprehensive" or full-scope inspections of the entire worksite.

In their arguments on review, the Respondents do not directly attack the sufficiency of the Secretary's probable cause showing.  Instead, they argue that the Secretary acted in bad faith in seeking an expanded inspection and suggest that, if the magistrate had been given an accurate description of OSHA's section 8(f)(1) inspection, he would have concluded that no warrant at all was justified, let alone a warrant authorizing a comprehensive inspection of the entire workplace.
We disagree.  The matters deemed critical by the Respondents do not undercut the Secretary's showing of administrative probable cause for a full-scope inspection.   For example, the Respondents emphasize that the hazard described in the employee representative's complaint was fully abated to OSHA's satisfaction before OSHA went into the district court to obtain an administrative inspection warrant.  We conclude, however, that this fact is not as significant as the fact that it took over a week--despite employee and union complaints, "near miss" incidents, and pressure from OSHA--to attain abatement of this imminent danger hazard.

The Respondents also stress the issue of responsibility for the traffic control hazard, including the question of who had the ability to abate.   However, these matters were essentially irrelevant to the magistrate in determining whether to grant OSHA's request for authority to conduct a full-scope inspection of project 8.  The warrant sought and obtained by OSHA in no way targeted National or Tri-State or any other particular contractor working on the project.  The relevant fact from the viewpoint of OSHA in seeking the warrant and the magistrate in issuing the warrant was the fact that workers were exposed to hazards that appeared to be in violation of the Act, not the fact that any particular contractor or governmental entity was "responsible" for the exposure or for abatement of the hazard.[[23]]

Finally, the Respondents point to the "fact"' that OSHA had "no basis for citing Tri-State for the conditions alleged in the complaint."  This argument, however, misstates the record in several important respects.  For example, the Respondents emphasize the "concession" of CO Cannon that neither 1926.201 nor 1926.202 applied to the cited working conditions, but they ignore the fact that the citation issued to Tri-State did not allege a violation of either of these two standards. Instead, the citation issued following OSHA's section 8(f)(1) inspection and investigation alleged that Tri-State violated section 5(a)(1) of the Act.  See supra note 12.  Thus, except for the allegation of willfulness, the Secretary's original charge was fully consistent with the investigating compliance officer's views of the case, i.e., that Tri-State's employees were exposed to an imminent danger, that these employees were exposed to conditions in violation of the Act's general duty clause, and that 1926.201 and 1926-202 were not applicable to the conditions that he observed.  Furthermore, the ALJ's decision does not conflict with CO Cannon's views.  The judge expressed no opinion as the validity of the Secretary's original charge, holding only that the Secretary had failed to prove noncompliance with the specific provisions of the two OSHA standards cited in her amended charge.

Contrary to the arguments of the Respondents, OSHA had ample reason on May 8 and 9, 1989, for seeking to expand the scope of its inspection, and it acted in good faith in applying for a full-scope administrative inspection warrant.   Since OSHA's warrant application supplied the magistrate with administrative probable cause to support the issuance of such a warrant under the Barlow's "specific evidence test," the warrant issued by Magistrate Sherman was valid, and the evidence gathered pursuant to that warrant cannot be suppressed on Fourth Amendment grounds.

Ill. THE CHALLENGE TO THE WILKERSON AFFIDAVIT

A. Background

Tri-State and National raised their Fourth Amendment defense before the Commission when they filed their answers, in Docket Nos. 89-2611 and 89-2705, respectively.  After these cases were consolidated by order of the ALJ, on December 28, 1989, the Respondents sought to follow up on their defense by conducting discovery depositions of CO Cannon, Area Director Murphy, and CO Wilkerson.  The Secretary consented to the taking of the Cannon and Murphy depositions, but refused to allow the deposition of CO Wilkerson.  Thus, for example, in a February 8, 1990 letter, the Secretary's counsel responded to a request from the Respondents' counsel, as follows:

We will object to the taking of Mr. William J. Wilkerson's deposition because his only involvement in the cases related to the application for the warrant.  An evidentiary hearing on a warrant can only be conducted under Franks v. Delaware, 438 U.S. 154, 171-172 (1978), upon a "substantial preliminary showing" that the warrant application contains false statements that are made knowingly and intentionally, or made with a reckless disregard for the truth.   Respondents have made no showing in the subject cases and are therefore not entitled to discovery or an evidentiary hearing on warrant issues.

The reference in the Secretary's letter is to the following passage from the decision of the United States Supreme Court in the Franks case:

There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.  To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine.  There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof...Allegations of negligence or innocent mistake are insufficient....Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or deliberate disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

438 U.S. at 171.

On March 13, 1990, the Respondents began taking the deposition of CO Cannon.  (The two-day deposition was finished on May 15, 1990.)  On April 10, 1990, the Respondent's counsel again wrote to the Secretary's counsel requesting an opportunity to take the deposition of CO Wilkerson.  Citing the Franks case, the Respondents in effect asserted that they were able to make the "substantial preliminary showing" required under that decision:

From the information which has been developed during Mr. Cannon's deposition, it appears clear that the Warrant Application signed by Mr. Wilkinson (sic) contained false statements in a number of important respects.  Accordingly, National Engineering and Tri-State are entitled to probe the basis for his statements in that application.

When the Secretary again refused to consent to the deposition, the Respondents filed a motion with the ALJ to compel this discovery.  Following through on their stated intention, the Respondents based their preliminary showing under Franks on alleged inconsistencies between CO Cannon's deposition testimony and the statements of CO Wilkerson in his warrant application affidavit.  The Secretary opposed the motion, arguing that the Respondents had not met their burden under Franks.

On July 13, 1990, the judge issued his order denying the Respondents' motion to take the deposition of CO Wilkerson.  He held that the Respondents had not met their burden of proof under Franks because "[n]o substantial preliminary showing was made that a false statement was intentionally or recklessly made by Wilkerson and that such false statement was necessary to the finding of probable cause."

B. Analysis

We conclude that the judge correctly decided this issue.   Under Franks, the Respondents had the burden of proving that the warrant affidavit included (1) false statements (2) that were knowingly or intentionally made or made with reckless disregard for the truth and (3) that were necessary to the magistrate's finding of administrative probable cause.  For the reasons that follow, we hold that none of the statements by Wilkerson that the Respondents have challenged meet all three of these tests. We therefore agree with the judge that the Respondents failed to make the "'substantial preliminary showing" that would have entitled them to conduct discovery into the underlying basis, the accuracy, or the completeness of the warrant affidavit.

The first challenged statement in the warrant affidavit relates to the events of May 4, 1989, the first day of OSHA's section 8(f)(1) inspection: "After conducting an opening conference with the general contractor on the project the formal walkaround commenced."  The Respondents assert that this statement is "untrue" because "[t]he opening conference did not occur until Monday, May 8, 1989, and the walkaround inspection did not occur until the following day, Tuesday, May 9, 1989."

The discrepancy in the dates is easily explained by pointing out that the inspection at issue occurred in two phases: the warrantless first phase that was limited to the area described in the section 8(f)(1) complaint and the expanded second phase that was conducted pursuant to the warrant and that included all of project 8. Wilkerson's statement in the affidavit refers to the first phase of the inspection, while the Respondents' assertions relate.  albeit inaccurately, to the second phase.[[24]]

However, even after this confusion is cleared up, it is still evident, as the Secretary has conceded, that the challenged statement in the warrant is inaccurate.  While CO Cannon met with representatives of the general contractor on May 4--both at the work area described in the section 8(f)(1) complaint and in Jurgensen's office trailer after he left the work area--his abbreviated opening conference was with representatives of National and Tri-State rather than representatives of Jurgensen.   Moreover, it is probably stretching the facts to describe the events of May 4 as a "formal walkaround." See Part 1A, supra.

Nevertheless, we agree with the Secretary that the inaccuracies in this quoted affidavit statement are more likely the result of confusion over which employer was involved in the section 8(f)(1) complaint than an indication of a deliberate attempt to present false evidence or of a reckless disregard for the truth.  The employee representative's complaint was directed against Jurgensen, the general contractor.  However, when the CO's arrived, they discovered that only employees of Tri-State were exposed to the imminent danger hazard described in the complaint.  It was for this reason that the abbreviated opening conference was held with representatives of Tri-State and National rather than representatives of Jurgensen.

In any event, even if we were to conclude that the misstatement was deliberate, we have no difficulty in further concluding that it does not meet the third part of the Franks test, i.e., it was not a statement that was necessary to the magistrate's determination of administrative probable cause.  On the contrary, as we noted previously, the question of which employer was responsible for the hazardous conditions described in the employee representative's complaint was essentially irrelevant to the magistrate's determination of administrative probable cause because the Secretary was seeking authorization for an inspection that would cover all contractors working on project 8, without regard to their responsibility for the imminent danger hazard.  It therefore follows that such matters as which contractors OSHA held its opening conference with and when it began its formal walkaround inspection were equally irrelevant to the magistrate.

The second challenged statement in the warrant affidavit is the statement we have quoted in Part IIA1 of this decision, supra, concerning the hazards observed by OSHA during its limited section 8(f)(1) inspection.  Part of the Respondents' reasoning can be easily dismissed since the argument makes no sense.   The Respondents claim that CO Cannon's deposition testimony establishes that he did not observe the "additional safety hazards" referred to in the warrant affidavit--"improper use and storage of flammable gases, failure to remove welding rods from welding cable clips, [and] inadequate protection of workers from moving vehicular traffic"---during the first phase of the inspection, as alleged in the affidavit.  Rather, these conditions were not observed until the second phase of the Inspection.[[25]]  However, the Respondents offer no explanation as to how the warrant affidavit, which was filed on May 9, 1989, could have included a description of conditions that were not observed until the second phase of the inspection, which began on May 10.  This matter is cleared up by a closer reading of the deposition testimony that the Respondents rely upon.  That testimony does not relate at all to the hazards described in the warrant affidavit, but rather to the hazards described in certain contested citation items that were based on the CO's observations during the second phase of the inspection.

The more serious charge by the Respondents concerning the challenged statement is the claim that the magistrate was misled by material omissions from the affidavit, specifically, Wilkerson alleged failure to Inform the magistrate "that the condition for which [OSHA] was summoned to the worksite had already been completely examined [and abated] and that it now wished to expand its inspection beyond the contours of that matter."  At the outset, we find that there was no intent on Wilkerson's part to deceive the magistrate on these matters.  Thus the affidavit forthrightly stated that "[t]he walkaround inspection, which included the hazards described in the complaint, has resulted in the identification of an imminent danger safety hazard and the immediate abatement of same" (emphasis added).   It is unfortunate that the affidavit was not more clear in apprising the magistrate that the hazard described in the complaint and the imminent danger situation observed by the CO were the same hazard.  But the inclusion of the above-quoted statement in the affidavit precludes us from finding any intentional misrepresentation or reckless disregard for the truth on the part of Wilkerson.  Similarly, while the affidavit might have been more clear in informing the magistrate that the inspection of the area described in the employee representative's complaint had basically been completed and that OSHA's intent was therefore to seek a geographic expansion of its inspection, we cannot conclude that the affidavit was misleading with respect to these matters.  On the contrary, the most logical inference to be drawn from the information that was provided to the magistrate was that OSHA was seeking to expand its inspection because it had already completed its 8(f)(1) investigation.

In any event, whatever deficiencies there may have been in the Secretary's warrant application were more than adequately compensated for in National's motion for stay of the inspection.  As we have detailed in Part IIA2 of this decision, supra, National's motion fully informed the magistrate of all those matters it emphasizes in its arguments before us--the completion of the section 8(f)(1) inspection abatement of the hazard described in the complaint, and the Secretary's intent to expand the scope of the inspection.  Since the magistrate read and considered National's motion before issuing the warrant in question, we cannot conclude that the alleged omissions in the warrant application had any effect on his determination of administrative probable cause.

The Respondents' next argument borders on the frivolous.   They challenge Wilkerson's statement that CO Cannon returned to the Fort Washington Way work area on May 5 and 8, 1989, "to continue [his] walkaround."  On this record, it is undisputed that Cannon did return to this work area on both May 5 and May 8 to continue his investigation of the section 8(f)(1) complaint and as part of his ongoing effort to obtain abatement of the hazard.  Whether or not these worksite visits were technically part of the CO's "walkaround" was totally irrelevant to the magistrate's determination of administrative probable cause.

The Respondent's next challenge is more substantive, although we conclude it also is without merit.  The Respondents attack Wilkerson's statement that CO Cannon was "informed on May 8th by representatives of... [Jurgensen, National and Tri-State] that the inspection would not be permitted to continue and an inspection warrant would be required."  At the outset, we observe that this challenged statement is a true statement.  Nevertheless, the Respondents correctly point out that, when taken in context, the statement could be construed as a false claim that the objections raised on May 8 were the first objectors to the OSHA inspection.  The affidavit makes no mention of prior objections, although the record establishes that the Respondents' counsel had demanded a warrant on May 4, approximately an hour after OSHA first arrived at the worksite.

Here again, however, we cannot conclude that the magistrate's determination of administrative probable cause was affected by the omission of this information from the warrant affidavit.  National's motion, which was considered by the magistrate before he issued the warrant clearly informed him that National had objected to the limited section 8(f)(1) inspection as well as to OSHA's attempt to expand the inspection beyond the limits of the area described in the employee representative's complaint.

Finally, the Respondents challenge the statement in Wilkerson's affidavit concerning OSHA's determination that the employee representative's complaint described conditions in violation of the Act. See supra note 8.  The Respondents challenge this statement on the basis of CO Cannon's deposition testimony that, in his opinion, the conditions he observed at the workplace were not in violation of either 29 C.F.R. 1926,201 or 29 C.F.R. 1926.202 because neither of those standards applied.

This challenge also fails to meet the Franks test.   Indeed, the Respondents have failed to make the threshold showing that the statement is false.  They ignore the fact that the statement is expressed as Wilkerson's personal opinion: "In my opinion as an experienced safety and health investigator the complaint alleges serious conditions that are covered by 29 CFR 1926.201, 29 CFR 1926.202, Section 5(a)(1) of the Act and other parts" (emphases added).  Such a statement cannot be contradicted by CO Cannon's testimony as to his personal opinion, which may have been different from Wilkerson's.  At moist, therefore, the Respondents have shown a difference of opinion between two OSHA compliance officers over the applicability of two OSHA standards.[[26]]

For the reasons stated above, we conclude that none of the statements in Wilkerson's affidavit that have been challenged by the Respondents meets the three-part test we set forth above: (1) a false statement (2) that was knowingly or intentionally made or made with reckless disregard for the truth and (3) that was necessary to the magistrate's finding of administrative probable cause. We therefore affirm the judge's ruling denying the Respondents motion to take the deposition of CO Wilkerson on the ground that the Respondents failed to make the "substantial preliminary showing" required under Franks v. Delaware.

IV. THE ALLEGED VIOLATION OF 29 C.F.R. 1926.500(d)(1)

The final issue before us on review concerns the merits of a contested citation item in Docket No. 89-2705. Citation no. 1, Item 9, in that case alleges that the Respondent National violated 29 C.F.R. l926-500(d)(1) at three separate locations, within the scope of project 8. In his decision, the ALJ affirmed this item as a serious, violation of the Act and assessed a penalty of $350.  However, for the reasons stated herein, we conclude that the cited standard does not apply to the cited conditions.  We therefore reverse the judge and vacate the citation item.

The three incidents identified in the record as the basis of this alleged violation each involved employees of National who were working near the edges of bridges or ramps that were used as interchanges between interstate highways.  In each instance, the employees were working within a few feet of the edge of the bridge.   Only a 20- to 29-inch-high concrete wall or "parapet" stood between the employees and a fall of 15 or 20 feet to the city streets below.  Also in each instance, the work being performed by the employees related to the "recontouring" of the parapet walls.

Prior to National's arrival at the worksite, the bridges or ramps in question had protective barriers on each side of them.  These barriers consisted of an 8-inch-high sidewalk or curb, which was adjacent to a 21-inch-high parapet wall, which in turn was topped by a 12-inch-high pipe railing.  (Thus, the railing was 41 inches above the surface of the roadway).  Part of National's responsibility under its contract with Jurgensen was to reconstruct these protective barriers.  This involved removal of the pipe railing, removal of the sidewalk or curb, and finally building up the concrete wall to a height of 42 inches.  The "old" parapet was not destroyed in this process, but rather remained in place as a protective barrier throughout.

At the time of the alleged violation, the pipe railing had been removed in each of the cited locations, and the sidewalk or curb had been partially removed.  Thus, depending on whether an employee was standing on the roadway or on the sidewalk/curb, he or she was working next to a concrete parapet that was either 29 or 21 inches high.  In one instance, an employee was actually standing on the parapet wall drilling holes into it (apparently for reinforcing bars, in preparation for the pouring of concrete).  However, that employee was protected by a safety belt.   None of the other employees observed by the CO was similarly protected.

The cited standard is contained in Subpart M--Floor and Wall Openings, of Part 1926. It provides, as follows:

1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways.    (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.  The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

In his testimony concerning item 9, CO Cannon suggested two possible means of eliminating the cited fall hazard.  First, he pointed out a device shown in one of the photographic exhibits.  The device, which appears to be a sheet of plywood attached to the parapet wall, has the effect of extending the parapet wall to a height well above the employees' head level.  Cannon identified the purpose of the device as the prevention of chips falling over the edge of the bridge onto the city streets below.  However, he claimed that it could also serve the same function as a guardrail in protecting workers against falls.  The CO's other suggested abatement method was the use of safety belts and lifelines.  He did not even suggest, however, that standard guardrails or their equivalent--the method of abatement specified in the cited standard--could have been used to protect the employees at issue.

On review, National presents two arguments against the judge's decision to affirm this citation item:

First, the standard itself is not applicable to this situation.   The interstate highway, with its existing parapet wall, was not an open-sided floor or platform....Alternatively, even were this work area considered an open-sided floor or platform, the existing and, thereafter, reconstituted concrete parapet wall served the purpose of an equivalent guard to prevent a fall hazard.... [Since] the purpose of the standard was met .... this citation should have have vacated.

Because we agree with the first of these two arguments, we find it unnecessary to reach the second.

Specifically, we agree with National that the paved interstate highway ramps or bridges with 29-inch-high concrete parapet walls on each side of them were not "open-sided floors" within the meaning of the cited standard.  We therefore vacate citation no. 1. item 9 on the ground that the cited standard does not apply to the cited working conditions.  In so ruling, we rely upon the plain meaning of the standard's terms.

In other cases arising under this same standard, federal appellate courts have reminded the Commission of our responsibility to interpret and apply OSHA standards in accordance with the plain meaning of their terms.  In particular, in those cases, the courts held that it was error for the Commission to apply section 1926.500(d)(1) to open-sided roofs because a roof is not a "floor." Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976); Langer Roofing & Sheet Metal, Inc. v. Secretary, 524 F.2d 1337 (7th Cir. 1975).  Applying this same reasoning in the case now before us, we conclude that a paved interstate highway with concrete parapet walls on each side of it similarly cannot be characterized as an "open-sided floor."

The Secretary responds to this reasoning by pointing to the Commission's decision in Pace Constr. Corp., 14 BNA OSHC 2216,1991 CCH OSHD 29,333 (No. 86-758.1991).  In that case, we concluded that employees working on a balcony of a multi-storied building that was still under construction were working on an "open-sided floor" within the meaning of 1926.500(d)(1), the same standard that is at issue here.  In reaching this conclusion, we relied upon dictionary definitions that specifically included the "floor of a bridge" within the meaning of the term "floor."  Id., 14 BNA OSHC at 2222, 1991 CCH OSHD at p. 39,431.  We did not intend to suggest, however, that the term "floor"' as used in 1926-500(d)(1) includes the surface of a bridge that is covered by a paved interstate highway.  Nor is it likely that the sources we relied upon intended such a result.  In any event, even if we could get over this hurdle to acceptance of the Secretary's position, we could not conclude that the roadways at issue were "open-sided" within the meaning of the standard.

The Secretary would have us disregard the fact that the workers in question were at all times working next to concrete walls that were either 29 or 21 inches above the surfaces on which they were standing.  She seeks to draw an analogy between this situation and other cases in which the Commission held in effect that a trenching contractor could not escape coverage under the then-effective trenching regulations by improperly sloping a trench: "[The argument that the working surfaces at issue were not 'open-sided' because they were bordered by parapet walls] makes no more sense than the argument, consistently rejected by the Commission, that under the former trenching standard, a trench's width was measured at its top, the result being that as a trench was sloped back to comply with the standard, it would likely become wider than deep and thus cease being subject to that standard."

This analogy is not persuasive.  The situation before us is not one in which an employer has installed an inadequate, 29-inch-high barrier and then attempted to argue that the Secretary cannot cite 1926.500(d)(1) because the "floor" is no longer "open-sided."  Instead, when National arrived at the worksite, it found a fully-completed section of interstate highway, next to which a sidewalk or curb with adjacent parapet and guardrails had been installed.   National's contractual responsibility included "rehabilitating"' this old barrier so that, in its "recontoured" form, the concrete wall itself would be 42 inches high and the old pipe railing guardrails would no longer be necessary.

As indicated, OSHA has not even attempted to establish that National could have protected its employees during this construction process by putting up, on the sides of the bridges, "a standard railing or the equivalent" within the meaning of 1926.500(d)(1).  Instead, it has relied solely on other possible measures that might have been taken to protect the employees.  In our view, this failure to even mention the installation of standard guardrails as an abatement method provides further support for National's contention, and our conclusion, that the Secretary is attempting to enforce this standard in a situation it was never intended or designed to cover.  Cf. Spancrete Northeast, Inc. v. OSHRC, 905 F.2d 589 (2d Cir. 1990) (court concludes ALJ erred in affirming alleged violation of 1926. 900(d)(1) based on employer's failure to provide safety belts).

V. ORDER

For the reasons stated, we affirm the judge's rulings on the Fourth Amendment issues that are before us.  Specifically, we affirm his rejection of the Respondents' Fourth Amendment defense on the ground that neither the warrantless first phase of the OSHA inspection nor the expanded second phase, which was conducted pursuant to a valid warrant, violated the Respondents' Fourth Amendment rights.  We also affirm the judge's denial of the Respondents' motion to take the deposition of CO Wilkerson.  We reverse, however, the judge's conclusion that the Respondent National violated 29 C.F.R. 1926.500(d)(1).  We vacate citation No. 1. item 9, in Docket No. 89-2705.

Edwin G. Foulke, Jr.

Chairman

Donald G.Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: September 30, 1992


SECRETARY OF LABOR

Complainant,

v.

TRI-STATE STEEL CONSTRUCTION INC.

AND

NATIONAL ENGINEERING AND CONTRACTING, CO.

Respondent.

Docket No 89-2611 & 89-2705

(Consolidated)

APPEARANCES: JANICE L. THOMPSON, ESQUIRE
U.S. Department of Labor
Cleveland, Ohio

For the Complainant,

KENT W. SEIFRIED, ESQUIRE
Holbrook & Poston
Cincinnati, Ohio

For the Respondent.

DECISION AND ORDER

SOMMER, JUDGE:

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq., hereafter called the "Act").   Respondents Tri-State Steel Corporation, Inc. (Tri-State), and National Engineering & Contracting Company (National), were engaged in bridge reconstruction work let by the Ohio Department of Transportation on Interstates 74 and 75 and Fort Washington Way in Cincinnati, Ohio.  These cases were docketed under Commission Docket Nos. 89-2611 (Tri-State) and 89-2705 (National).  The two cases were consolidated for purposes of trial. Hearings were held in Cincinnati, Ohio, from August 14-16, 1990.  Both parties were represented by counsel who filed post-hearing briefs.

Tri-State was issued a serious citation containing six items and a willful citation containing one item.  Prior to the hearing the Secretary amended the willful violation, 3(a)(1), to a serious violation and alleged a violation of 29 C.F.R. 1926.201(a)(1) or in the alternative 29 C.F.R. 1926.202. Item two of the serious citation was amended at the hearing to allege a violation of 29 C.F.R. 1926.59(f) (5) (ii) instead of 29 C.F.R. 1200(f)(5)(ii).

National was issued a serious citation containing ten items, a willful citation containing one item, and an "other than serious" citation containing one item.  Prior to the hearing the Secretary amended the willful violation, 5(a) (1), in citation no. 2 to a serious violation of 29 C.F.R. 201(a) (1) or, in the alternative 29 C.F.R. 1926.202.  In both the National and Tri-State cases the penalties for the violation amended from willful to serious were reduced from $9,000 to $1,000. At the hearing, the Secretary amended National citation No. 1 by withdrawing item 4(a), and by modifying item 8 from a violation of 29 C.F.R. 1926.152(d)(2) to a violation of 29 C.F.R. 1926.152(g) (11).

BACKGROUND

Respondent's National Engineering & Contracting Company and Tri-State Steel Construction, Inc. are Ohio Corporations engaged in the construction business.   Tri- State is a subsidiary of National.  Both Respondents were subcontractors engaged in bridge reconstruction work on Ft. Washington Way in downtown Cincinnati.  The John R. Jurgensen Company was the prime contractor on this job which was let by the Department of Transportation of the State of Ohio (ODOT).  Pursuant to a complaint filed (with the Cincinnati area office of OSHA), alleging hazardous conditions arising from vehicular traffic, Complaince Officer Cannon proceeded to the worksite on May 4, 1989, to make an inspection.  His presence without a warrant was objected to by Respondent.  During May 1989, he spent some time in this area observing traffic conditions. On May , 1989, OSHA obtained a warrant for inspection of the entire working area.  As a result of the inspection, both National and Tri-State were issued serious citations which are involved here (one other than serious citation with no penalty was issued against National).  A serious violation exits when "there is a substantial probability that death or serious physical harm could result" from the violation. 29 U.S.C. 666(k)(1982).

VALIDITY OF THE INSPECTION - VALIDITY OF WARRANT OBTAINED - SUPPRESSION OF EVIDENCE

Respondents National and Tri-State were subcontractors on a bridge reconstruction job located in downtown Cincinnati.  In response to a complaint that there was a hazard present due to traffic passing through the work area located on Compliance Officer Cannon went to the inspect the premises.  Ironworkers were working on the bridge and barrels had been placed on the roadway to separate the work area from the travel zone.  The Compliance Officer parked his vehicle behind the barrels and identified himself to Respondent's supervisory personnel and stated the purpose of his visit.  There was an objection made to his inspection without a warrant, but he proceeded stating none was needed on a public road.  His inspection resulted in the issuance of a citation to both parties alleging a violation of 29 C.F.R. 1926.201 (a) and 202.  (Signaling and Barricades).  Respondents contend the evidence from this inspection should be suppressed since a warrantless, nonconsensual inspection was made relying on Marshall v. Barlow's, Inc., 436 U.S. 307 (1978).  This reliance to misplaced.

Firstly, the area inspected was a public highway, being traveled throughout the inspection.  Merely placing barrels on a part of the highway to direct the traffic and separate the workmen from the vehicular activity did not change the nature of the public traffic artery.  The observations of the Compliance Officer of conditions which existed were in plain view of all who drove through the area; the observations he made on the highway after parking his vehicle which were in plain view of all was not a constitutional violation.  See Stephenson Enter, Inc., v. Marshall, 578 F.2d 1021 (5th Cir. 1978); Moreover, there was no " expectation of privacy" in the highway activity being observed.  U.S. v. 448, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980).  Accordingly, the actions of the Compliance officer were proper enter the circumstances presented, and there was no fourth amendment violation.

The Respondent further contends that there was no basis for the warrant which allowed the compliance officer to inspect other areas of the work site.   Marshall v. Barlow's, Inc., 436 U.S.307, 98 S.Ct. 1816, 56 L.Ed. 2d 305, 6 BNA OSHC 1571 (1978) held that safety and health inspections by OSHA must be conducted pursuant to a warrant to comply with the probable cause requirement of the Fourth Amendment.

"Probable cause will be found to support an OSHA warrant if the warrant application supports a reasonable belief or leads to a reasonable suspicion that the OSH Act or its regulations have been violated. "  See Secretary.of Labor v. Midwest Instruments Co., 14 BNA 1569, 15571 (No 89-2019.1990).

The warrant application herein was based not only on the plain view observation of the Compliance officer of alleged violations, see Stephenson Enterprises, Inc. v. Marshall, supra., but on a detailed explanation of the general inspection plan OSHA utilizes which is based on neutral criteria.  See I, 1n Re Establishment inspection of Trinity Industries, Inc. 14 BNA OSHC 1531 (Nos. 89-1113, 99-1389, 89-1494, 1990).

Accordingly, it is concluded there was valid reason for the issuance of the warrant, and there is no basis for suppression of the evidence.

Docket No. 89-2611 - Tri-State Steel Construction, Inc. Citation No. 1, Item (a) alleges:

29 C.F.R. 1926.59 (e) (1): Employer had not developed or implemented a written hazard communication program which at least describes how the criteria in 29 C.F.R. 1910.1200(f), (g) and (h) will be met:

(a) There was no written hazard communication program available at the time of inspection.

Section 1926.59(e)(1) provides:

(e) Written hazard communication program. (1) Employers shall develop, implement, and maintain at the workplace, a written hazard communication program for their workplaces which at least describes how the criteria specified in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, material safety data sheets, and employee information and training will be met ...

Citation No. 1, Item (b) alleges:

The written hazard communication program did not include a complete list of the hazardous chemicals known to be present using an identity that Is referenced on the appropriate material safety date shoot (the list may be compiled for the workplace as a whole or for individual work areas):

(a) There was no list of hazardous chemicals on site at the time of the inspection for such materials as Atom Arc and Arcair welding electrode.

The standard at issue, 29 C.F.R. 1926.59 requires employers to "develop, implement and maintain" a written hazard communication program which describes the employer's methodology for labels and other warning concerning hazardous materials; providing material safety data sheets, and the training of employees.

Cannon, the Compliance Officer testified that he found no written hazard communication program in effect solely for Tri-State.  National did have such a program in use.  (T-212) However, the evidence demonstrates that Tri-State is a subsidiary of National and both use the same program. Cannon admitted both companies have the same safety and loss control officer, use the same trailer where the hazard program was situated, and share the same supervisory personnel. (T-439) He did not cite National for violating 59 (e)(1) stating "what National Engineering had in their trailer was sufficient. . ." (T- 443) The evidence is persuasive that both shared the same program - granted that National did not violate the standard at issue, neither did Tri-Steel.  The Secretary has not sustained her burden of proof as to a violation of 59(e)(1).  The violation is vacated.

The Secretary alleges that Tri-State violated 29 C.F.R. 1926.59(e)(1)(i) by failing to have a list of the hazardous chemicals known to be present at the worksite; i.e.  Atom Arc and Arcair welding electrodes.

The standard requires that "a list of hazardous chemicals . . . . referenced on the appropriate MSDS" be present.  Cannon specifically examined the MSDS sheets and photographed them.  He did not see Atom Arc and Arcair Welding electrodes therein.  While Respondent alleges another welding rod was listed, this does not meet with the standard requirements.  These specific rods were not listed and thusly employees checking the MSDS could not determine their physical and health hazards.

Cannon testified the hazard associated with welding rod use was nausea, pulmonary dysfunction, etc. (T-456-7)

Respondent knew there was no MSDS for these specific products.   On the record, Tri-state was in violation of 1926.59(e) (1) (i).  A penalty of $200 is appropriate herein.

Item 2, Alleged Violation of 29 C.F. R. 1926.59 (f) (5) (ii)

Citation No. 1, Item 2 (a) & (b) alleges: 29 C.F.R. 1926.59(f)(5)(ii):  The employer did not ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked specifying the appropriate hazard warning:

(a) Westbound Ft. Washington Way at split of north and southbound I-75 ramps.  Equipment: Arcair copper clad electrodes. Condition: The Arcair electrodes were not provided with a hazard warning label to indicate the health effects of the materials contained therein.

(b) Location: Westbound Ft. Washington Way at split of north and southbound I-75 ramps. Equipment: Atom arc electrodes.  Condition: There was no hazard warning label on the Atom arc electrodes to indicate the health effects of the materials contained therein.

Section 1926.59(f)(5)(ii) provides (5) ... the employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information:
(ii) Appropriate hazard warnings.

The labels to apprise employees exposed to the chemical hazards of "both the change in body function and the signs and symptoms that may occur to signal that change."

The Secretary has interpreted this requirement to require that the label spell out the target organs affected by the hazards present.  This interpretation is strengthened by the inclusion in Append A to 1926.59 at paragraph 7 of target organ effects which may occur from exposure to hazardous chemical exposures.   The Secretary's interpretation of the standard is controlling, if it is reasonable.   GAF Corp. v. OSHRC, 561 F.2d 913, 915 (D.C. Cir. 1977).  The purpose of the standard is to protect employees from serious risks of health damage posed by hazardous chemicals which insidiously cause bodily damage.

The Secretary has reasonably determined there is a need for employees to know of the hazards associated with chemical exposures in the workplace and be on guard with sufficient knowledge where possible.  Section 59 (d) (2) states that Appendix A shall be consulted for the scope of health hazards covered.  Under Section 59 (c) where health hazard is defined, reference is also made to further exploring Appendix A in defining chemical health hazards.  In short, the Respondent was on notice by the hazard communication standards that labeling of deleterious chemicals must specifically call the attention of employees to the bodily target organs which may be effected by toxic, carcinogenic, corrosive, etc. chemicals (See Appendix A to 1926.59). Mere words of caution on a label, or warnings that are general in nature do not suffice.   Since the label serves as the advance notice to an employee of information designating the health hazard of working with certain chemicals, employees exposed to such hazards must be informed of the specific target organs which may be affected.

The Respondent knew or should have known that this specific information must be made available on the labels of hazardous chemical substances.   It has a hazard communication program which made it so aware.

In the instant case the fume and gas decomposition chemical products formed could cause damage to the lungs, and may act on the blood or hematopoietic system (See C-35 MSDS Atom Arc Rods Section II, V) .  The labels did not provide the "appropriate hazard warnings" as required. Accordingly, the citation alleging a violation of 29 C.F.R. 1926. 59(f)(5)(ii) is affirmed.

Consistent with the criteria set forth in Section 17(J) of the Act, a penalty of $200 is appropriate herein.

Item 3, Alleged Violation of 29 C.P.R. 1926.39(g)(1)

The Secretary alleges that Tri-State violated 29 C.F.R. 1926.59(g) (1) by failing to have an MSDS for Arcair Electrodes and Atom Arc Welding rods type 7018.

The Respondent argues that it had an MSDS for All-State Welding Rods which although from a different manufacturer do list the hazards present, and is applicable to the rods used herein.

This argument cannot be supported herein.  Firstly, the Hazard Communication Standard specifically requires at 59(g) (1) that there be "a material, safety data sheet for each hazardous chemical."  This is so that workers may be provided with full information on every chemical they work with, apprised of the hazards concomitant thereto so that they can use caution and have knowledge where there is exposure.  Undoubtedly, where they are working with different name products, the presence of an MSDS for each product will facilitate for such employees the use of the MSDS provided.  Furthermore there is no evidence that the All-State Welding Rods were similar in all respects to Archair or Atom Arc Rods and presented the same chemical hazards.   The evidence supports a finding that the Respondent violated 29 C.F.R. 1926.59(g)(1).  Consistent with the criteria set forth in 17(J) of the Act, a penalty of $200 is appropriate.

Item 4, Alleged Violation of 29 C.F.R. 1926.59(h)

The Secretary alleges that Respondent violated 29 C.F.R 1926.59(h) in that employees were not provided with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard entered their work area.

The record establishes that while supervisory employees were given hazard communication training sometime in 1988 & 1989, employees did not got training until May 11, 1989.  Prior thereto,there were no official training sessions on chemical hazards in the workplace.  The Respondent's argument that giving employees packets of materials, etc. concerning safety qualifies as training under the standard is without merit.  Training[[1]]  in its ordinary under-stood usage means " to coach in or accustom to some mode of behavior or performance, to make proficient with specialized instruction and practice."  No such course of procedure was followed here.  The violation has been established.  A penalty of $200 is considered appropriate.

Item 5, Alleged Violation of 29 C.F.R 1926.100(a)

Tri-State was cited for violation of 29 C.F.R. 100(a) for failing to assure that employees exposed to possible danger of head injury wear protective helmets.

Section 1926.100(a) requires that employees "be protected" by the use of helmets "where there is a possible danger of head injury from impact, or from falling or flying objects..." See Franklin R. Lacy (Aqua View Apartments), 81 OSAMRC 7/A2, 9 BNA OSMC 1253, 1254, 1981 CCM OSMD 25,170, p. 31,073 (No. 3701, 1981).

The Compliance Officer testified that an employee was standing under an overpass on Route 1-75 without wearing a hard hat and was subject to being struck by falling debris emanating from work activity overhead.  Respondent's foreman Hunter, who was in conversation with the employee (employee was standing outside truck talking to Hunter, inside) stated he saw no concrete falling from above.

A review of the testimony and the photographs depicting the area strongly indicates that work was being carried out by welders on the roadway above.   (Exh. C- 37, 38) A gas cylinder used by welders is depicted in the photographs and the Compliance Officer positively stated he saw men working.  Exhibit C-38 depicts an opening in the overhead span from which the testimony states debris was falling from.   I find that an employee of Respondent was standing below an area where there was work activity being carried out without wearing a protective helmet and was subject to being struck and injured by falling debris.  The Respondent's foreman was present and knew or should have known of the danger present to the employee.  The evidence establishes a violation of 29 C.F,R. 1926.100 (a).  A penalty of $250 is considered appropriate.

Item 6, Alleged violation of 29 C.F.R. 1926.351(b)(1)

A violation of 29 C.F.R. 1926, 351 (b) (1) was alleged for failure to comply with the requirement that "all arc welding and cutting cables shall be of the completely insulated, flexible type."

The evidence clearly demonstrates that the insulation on the cable attached to the Denyo multi quip welding generator was torn exposing the wires.   This presented a hazard of electrical shock to employees using the equipment.   As to the allegations concerning the other generator (see item 6(b) of the citation) the evidence establishes the Iead attachment to the generator was not insulated and presented a electrical hazard to employees who touched the lead at the attachment point.  The Standard requires the cable to be "completely insulated" The purpose is to protect employees from the hazard of electrical shock or even electrocution where there is any uninsulated point in the lead attachment.  In both instances, alleged herein there was such a hazard present and the Respondent's foreman hunter was aware of this condition.  The preponderance of the credible evidence establishes a violation of 1926.351 (b) (1).  A penalty of $100 is considered appropriate herein.

Citation No. 2, Item 1, Alleged Violation of 29 C.F.R. 1926.201 (a)(1) or in the alternative 1926.202

The citation initially alleged a violation of 5 (a) (1) of the Act and was amended in the Complaint to cite the above standards.

Pursuant to a complaint that ironworkers employed by Tri-State were subject to the hazard of being struck by vehicular traffic while engaged in bridge reconstruction work, Compliance Officer Cannon visited the worksite located on an interstate highway described as Fort Washington Way westbound on May 4, 1989.  He observed barrels in the roadway which were used to direct traffic and separate it from the work area.  The "barrels were spaced at no particular distance...from 40 to 70 or 75 feet, or somewhere in there."  (Testimony of Cannon, T-190) There were three to four welders working on the highway behind the barrier (barrels).  The Compliance Officer observed traffic cutting in behind and between the barrels close to the men at work putting them at the hazard of being struck.

After a meeting between the general contractor (The Jurgensen Co., subcontractors Tri-State and National, and a representative from the Ohio Department of Transportation the distance between the barrels was reduced from 50 feet to 25 feet, and both a patrolman and flagman were used to thwart the vehicular traffic crossing behind the barrels which presented a work hazard.  These additional steps did not solve the problem.  The hazardous condition was remedied on May by the use of "barrels, 10 foot centers with...mesh fencing" which formed a barrier preventing cross-overs.

The standard at issue, 29 C.F.R. 1926.201(a) (1) is concerned with signaling methods, specifically "flagmen."   The standard requires the use of flagmen "when operations are such that signs, signals, and barricades do not provide the necessary protection. . ." Consequently, one cannot be in violation for failure to use flagmen unless the evidence shows they were not used, or at least not properly used.  That element of proof is absent.

Tri-State did use flagmen in attempting to alleviate the problem, which proved unsuccessful.  The Compliance Officer, who admittedly was against citing this section testified that flagmen "would be overburden some costwise " (T-419), meaning they were not feasible under the circumstances existing.  He stated, "In my own opinion, I don't believe the standard deals with the situation that we had at Fort Washington Way."  (T-420) The citation therefore is vacated.

In the alternative, a violation of 1926.203 in alleged.   This standard requires that "Barricades for protection of employees shall conform to the portions of the American National Standards Institute D 6. 1-1971, Manual on Uniform Traffic Control Devices for Streets, and Highways, relating to barricades."

The standard requires that barricades shall conform to a listed ANSI Standard. Consequently, one can not be in violation unless this is proven.  The Commission has hold that:

In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (2) the employees had access to the violative condition and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence.   Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126 (No. 78-6247, 1981).

The evidence of record does not establish that the Secretary met her burden of proof.  OSHA's Compliance Officer testified that the standard at issue was not applicable "to the situation on Fort Washington Way."   (T-418) Assuming the standard applies to this situation on the interstate highway, it was further incumbent on the Secretary to demonstrate by a preponderance of the evidence that the barriers existent there did not conform with the ANSI Standard.   The Secretary presented no evidence on her essential element of proof.  The citation, therefore, of an alleged violation of 1926.202 is vacated.

Docket No. 89-2705 - National Engineering & Contracting Company - Serious Citation - Item 1

Respondent National was cited for violation of 29 C.F.R. 1926.26(a)[[3]]  for failure to require an employee who was operating a hammer drill to wear safety-toed shoes.

To establish a violation of 1926.28(a) the Secretary must prove that the employer had actual knowledge of the existence of the hazard which required the use of personal protective equipment, or that a personably prudent employer familiar with the relevant industry would require much use. S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1263, 1979 CCH OSHD

23,480, p. 28,436 (No. 15855), rev'd 659 F .2d 1273 (5th Cir. 1981); Ray welding co. v.  OSHRC,  625 F.2d 726,731, 8 NBA OSHC 1271,1275 (5th Cir 1980), Bristol Steel & Iron Works Inc, v. OSHRC, 601 F.2d 717, 724, 7   BNA OSHC 1462, 1465-6 (4th Cir. 1979).

It was incumbent on the Secretary to "provide evidence from persons qualified to express such opinions" that the personal protective means specified were necessary within the industry involved. See L.R. Willson and Sons Inc v. OSHRC, 698 F.2d 507, 513, 11 BNA OSHC 1097, 1101 (D.C. Cir. 1983);  Ray Evers Welding Co., supra at 625 F.2d 733; Cape and Vineyard Div. of the New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1155, 2 BNA OSHC 1628 1633 (1st Cir 1975).  Compliance officer Cannon testified he observed an employee using an air hammer to chip concrete and was not wearing safety-toed shoes: and "there is a good potential for fractured toes."  Sorrell, the employee identified as being without safety shoes testified he was not with the air hammer, but was doing a drilling operation.  Hunter, the general foreman on the job corroborated Sorrell's testimony that he was drilling not chipping with the air hammer He testified in the drilling operation the drill does not bounce around as happens with chipping, but stays down in the hole, and is not a toe hazard for employees.

The testimony of both Sorrell and Hunter casts some doubts on the Compliance Officer's knowledge of what type of operation was being conducted, and therefore dilutes his opinion as to the alleged.

There is no persuasive evidence presented by the Secretary that the employee was exposed to a hazardous condition requiring the use of safety-toed shoes.   Furthermore the citation must be vacated due to the Secretary's failure to prove by a preponderance of the evidence that a reasonable person familiar with the circumstances of the industry would have protected against the hazard as specified by the Compliance Officer.  Based on the foregoing, serious citation 1, item 1 is vacated.

Citation No. 1, Item 1 (a),

Alleged violation of 29 C.F.R. 1926.89 (a)(1)(i)

The Secretary alleges Respondent violated this standard in that it did not have a list of the hazardous chemicals known to be present using an identity that is referenced on the appropriate MSDS.  The Compliance Officer testified he was shown a master list of hazardous chemicals on which a number of hazardous chemicals used were missing.  He photographed the list (Exh. C-8-28) and stated a number of photographs did not develop but these missing chemicals were not on the list.   Respondent through Banner its safety officer produced a list of chemicals allegedly drawn up on March 8, 1991, which listed as present all chemicals not previously found by the Compliance Officer.

After reviewing and observing both men testify, I find that the testimony of Cannon demonstrating that the list given to him did not contain the hazardous chemicals listed is infinitely more reliable than a belated list prepared and now put forth as being in existence.  The photographs and testimony amply demonstrates this listing was incomplete.  If the complete list was in existence, the Respondent was fully on notice as to what the Compliance Officer was seeking, and could have provided it then and there.  The total evidence re-enforces the reliability of the findings by the Compliance Officer on this change, and the citation is affirmed.

Citation No. 1, Item 2(b),

Alleged violation of 29 C.F.R. 1926.19(f)(5)(i)

This standard, which pertains to hazard communication programs states:

(f) Labels and other forms of warning.

(5) *  Except as provided in paragraphs (f)(6) and (f)(7) the employer shall ensure that each container of hazardous chemicals in the workplace is labeled, tagged or marked with the following information:

(i) Identity of the hazardous chemical(s) contained therein;

The citation alleges that there were four containers of hazardous materials which were not so labeled, tagged or marked with their identity.   Specifically, the Compliance Officer saw a can of gasoline, a portable fuel storage tank containing No. 2 diesel fuel, a fuel tank sitting on the back of a Chevrolet truck with contained No. 2 diesel fuel and a propane tank all without the necessary identification as required by the standard.  The Respondent alleges that the size, shape, and coloring of these sufficiently identifies them, i.e. red container signifies it has gasoline, propane tank was identifiable by its configuration and coloring etc.   This argument is without merit.  To ensure that employees are made fully aware of chemical hazards, employers are required to label, tag or mark each container of hazardous chemicals.

In plain, unambiguous language the standard states the containers must show the "identity of the hazardous chemicals contained therein."  Section 1926.59(c) states "identity means any chemical or common name which is indicated on the MSDS for the chemical."  No such description was placed on the containers herein.  The Respondent knew that hazardous chemicals were in the containers and did not identify then as required.  Citation No. 1. item 2(b) alleging a violation of 29 C.F.R. 1926.59(f)(5)(i) is affirmed.

Citation No. 1, Item 2(c)

Alleged Violation of 29 C.F.R. 1926.59(f) (5) (ii)

This standard requires that the employer ensure that each container of hazardous materials is labeled, tagged or marked with appropriate hazard warnings.  The Secretary alleges that in nine instances Respondent failed to comply.   In four instances, there were no identifying labels at all, i.e. Items (a) 5-gallon can of gasoline, (b) 1-gallon can of gasoline, (d) Propane storage tank, and (h) Fuel, storage tank on Chevrolet truck which contained No. 2 diesel fuel.  The standard requires each container be labeled, tagged or mark with appropriate hazard warnings.   Absent any such warnings as occurring in the above, the standard is violated.   Once again the same argument is made that the size, shape of the objects sufficiently identifies them.  This in rejected as totally without Merit.

On the remaining five items found in violation, i.e.(c) 35 5-gallon containers of Poly Carb, (e) Universal tractor fluid, (f) Koch high penetration primer 5952, (g) Sikadur 32, (i) Xylene; none met the requirements of the standard that warning be given to employers of the health hazard present when used.  Merely printing words such as hazardous, or corrosive, or flammable does not meet the requirements that the employees be made aware of the bodily systems and organs at risk.   The discussion and finding related to a violation of this section stated previously in relation to Tri-State is applicable herein.  The Respondent knew or should have known of the failure to mark its materials, with the necessary hazard information.   The employees could suffer serious and severe injuries from the chemicals involved.   The violations of 29 C.F.R. 1926.59(e)(1)(i), .59(f)(5)(i) and .59(f)(5)(ii) are affirmed.  A combined penalty of $400 in considered appropriate.

Citation No. 1, Item 3,

Alleged violation of 29 C.F.R. 1926.59 (g) (1)

The Secretary alleges that National violated 29 C.F.R. 1926.59 (g)(1) by failing to have an MSDS for Koch high penetration primer No. 5952, Seal Tight Hi Spec polymeric compound, Hilti Hit C100 dowelling, and Vulcan Super Prem SAE 30.   The standard requires there be "a material safety data sheet for each hazardous chemical."

The Compliance Officer testified he examined Respondent's MSDS's on May 10, 1989, at the worksite, and there were none for the five items listed.   He requested them and counsel provided an MSDS for Seal Tight Hi Spec, Hilti Hit C100 and Universal tractor fluid at his office on June 2, 1989.

Respondent avers that all MSDS's were provided and there was no violation. This argument is without merit.  The purpose of the Hazard Communication Program is to provide employees an opportunity to have total information regarding the hazards pertaining to the chemicals used in performing their job.  Thusly, the necessary information must be available to them at the worksite where their contact with the chemicals occurs.  The Compliance Officer noted the hazardous nature of the chemicals in the missing MSDS's, all of which were known to the Respondent.  These chemicals could cause serious illness or injury.  The violation of the standard at 1926.59(g)(1) is affirmed.  A penalty of $200 is considered appropriate for the violation.

Citation No. 1, Item 4,

Alleged Violation of 29 C.F.R. 1926.100 (a)

Section 1926.100(a) requires that employees "be protected" by the use of helmets "where there is a possible danger of head injury from impact or from falling or flying objects..." See Franklin R. Lacy, supra.

The Compliance Officer observed Scott Febus, Respondent's assistant job superintendent, working with foreman Robert Hunter under the I-75 overpass.   Febus was not wearing any head protection, while Hunter did have one on.  The Compliance Officer noted debris falling from overhead where arc welding was being carried out, and Febus was subject to being struck by debris. While Hunter testified he saw no debris falling, a review of the total evidence including the photographs of the area present substantial evidence to support a finding that Febus was in danger of being struck by overhead debris.  The Respondent's foreman knew of said danger and took means to protect himself by wearing a hard hat.  The violation of 1926.100(a) is affirmed. It is noted that the citation listed two instances of violation; however, one allegation was withdrawn at the hearing.  Based on the remaining violation, a penalty of $350 is appropriate.

Citation No. 1, Items 5(a) & (b),

Alleged Violation of 29 C.F.R. 1926,102(a) (1)

Section 1926.102 (a) (1) requires that "employees shall be provided with eye and face protection when machines or operations present potential eye and face injury from physical, chemical or radiation agents."  Thusly, the employees are required to wear safety glasses meeting requirements of the ANSI 297.1-1968 standard that is incorporated by reference at 29 C.F.R. 1926.102(a)(2).

The Compliance Officer observed an employee (Sorrell) using a saw to cut a concrete parapet. He observed flying chips and pieces emanating from the operation, and stated the employee was at hazard with possible injury to his face and eyes since he was not wearing safety glasses, but merely ordinary sunglasses. (See photograph Exh. C-66) The evidence substantiates that this employee was not wearing impact resistance type glasses meeting the safety requirements required by the standard, and that the operation of the saw presented the potential for eye injury.

Additionally, the Compliance Officer observed another employee working within 10 foot of the breaker operation without wearing safety glasses for protection from flying debris.  Although this employee did have safety glasses, they were perched upon his forehead, and were not protecting his eyes exposing him to potential eye and face injury.  The area around the breaking operation constituted a zone of danger and the employee not wearing his safety glasses had access thereto. See Daniel Int'l Corp v. Donovan , 705 F.2d 382, 387-8, 11 BNA OSHC 1305, 1309 (10th Cir. 1983).

The Respondent was aware of the potential for eye and face injuries from the type of work being done; it had previously recorded eye injuries in its operation.  A violation of the standard at 1920-102(a)(1) is affirmed.  A penalty of $300 is considered appropriate herein.

Citation No,1. Items 6(a) & (b).

Alleged Violation of 29 C.F.R. 1926.151(a)(3)

The Secretary alleges there were two situations where a fire hazard existed, and Respondent had failed to post signs stating "No Smoking or Open Flames" as required.  The Compliance Officer observed numerous cans of Poly Carb, a highly flammable substance stored on the inside of a storage trailer, and on the outside near the entrance.  The trailer and its outside vicinity was used by the employees to obtain the needed materials.  There was a no-smoking sign on a tank which the Compliance Officer estimated to be 50-60 feet from the flammable material; the Respondent alleged this sign was 20 feet away.  In any case, the sign was not what a reasonable person would hold to be in the vicinity of operations which constituted a fire hazard.  The standard is designed to protect employees from a fire hazard; in that sense the warning sign should be in close proximity to the flammable materials, not 20 feet nor longer away.

The Respondent knew of the presence of the flammable materials from the MSDS kept on premises therefor.  The employees were subject to a fire hazard while dealing with the poly carb material.  A violation of the standard has been proven.  A penalty of $150 is considered appropriate herein.

Citation No. 1, Item 7,

Alleged Violation of 29 C.F.R 1926.152 (a) (1)

Respondent was cited for failure to use an "approved" container for storing flammable liquids.[[4]] The undisputed testimony of the Compliance Officer was that employees used a one gallon can of gasoline in their work activity which was non-approved and clearly exposed the employees using it to the hazard that the gasoline fumes that could ignite and cause serious burn injuries.  The Respondent contends the un-approved gasoline can being used was rented, and since the gasoline was in the original container there is no violation.  There is absolutely no merit in this allegation.  It was incumbent upon the Respondent to protect its employees from possible serious injury by using an approved container.  The Respondent knew of the presence of flammable materials and with reasonable diligence could have protected against the violative conditions.  Its employees had access to the hazard created by the hazardous condition.  A violation of the standard at 1926.152(a)(1) is affirmed.   A penalty of $150 is considered appropriate herein.

Citation No. 1, Item 8,

Alleged Violation of 29 C.F.R. 1926.152(g)(11)

The Secretary alleged that Respondent failed to comply with 29 C.F.R. 1926.152(g)(11). In that there was no fire extinguisher within 75 feet of a flammable liquid storage area, i.e. in an area where a full storage tank contained diesel fuel.  The evidence demonstrates there was a fire extinguisher directly under the tanks however, the Compliance Officer alleged a violation on the theory that being below the tank the extinguisher would be inaccessible if there was a fire.  This interpretation conflicts with the plain language of the statute which mandates that "an extinguisher within 75 feet... of the service area."  Clearly, the extinguisher herein was within this parameter. "...an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires... see Diamond Roofing Co v OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). The Secretary's interpretation of the standard conflicts with its plain meaning and fails to provide employers with fair notice of their obligations under the standard.

The citation alleging a violation of 29 C.F.R. 1926.152-(g)(11) is vacated.

Citation No. 1, Item 9,

Alleged Violation of 29 C.F.R. 500(d)(1)

National was cited for violation of 1926.500(d)(1), for failing to provide fall protection for employees working on the I-25 ramp about 20 feet above ground level.  The standard requires an opensided floor to have standard railings an specified in 1976,500 (f) (1) (i)

The Compliance Officer observed three men working on the bridge roadway not protected from a fall of 20 feet.  A parapet in about to inches high did not meet the guardrail required under the standard. The respondent know or with due diligence could have known of the fall hazard present. Its foreman was present during the work activity, and furthermore it had notice that the guardrailing was removed from the parapet during the repair work.  A fall from the bridge ramp could have caused serious injury.  The citation alleging a violation of 29 C.F.R. 1926.500 (d) (1) in affirmed, and a penalty of $350 is appropriate herein.

Citation No. 1, Item 10,

Alleged Violation of 29 C.F.R 1924.500 (a) (3) (i)

The standard at 29 C.F.R. 1926.600(a) (3) (1) requires that heavy machinery, equipment or parts thereof which are suspended or held aloft by use of slings, hoists or jacks be substantially blocked or cribbed to prevent falling or shifting before employees are permitted to work under or between them.  The Compliance Officer testified an observed a backhoe "being hold off by the outriggers with two employees under it."  The backhoe was not blocked or cribbed to prevent it from falling.   The evidence demonstrates that there were employees working under the suspended backhoe who were in danger of sustaining serious injury if the backhoe tilted or fell.   The record supports a finding of noncompliance with the standard, and that the employees had access to the cited condition.  Furthermore, the Respondent knew or with the exercise or reasonable diligence, could have known of the violative condition.   The citation for serious violation of 29 C.F.R. 1926.600(a)(3)(i) is affirmed.   A penalty of $150 is reasonable and appropriate under section 17(j) of the Act.

Citation No. 2, Item 1

Alleged Violation of 29 C.F.R. 1926.201(a)(1)

or in the alternative 1926.202

These are similar violations to those to which Tri-State was cited.  The area where this violation took place is different.  The Compliance Officer observed four men working at a table that was set up on sawhorses installing form work to re-pour a parapet located on the highway.  The area involved was where the I-75 southbound ramp from Ft. Washington Way merged with southbound 75.  There were barrels along this route, however, the Compliance Officer found that the barrels ended approximately 27 feet from the area where the men were working and they were at hazard of being struck by vehicular traffic.  He stated that two more barrels which were on the traffic plan were missing, and that these were required to warn motorists of men at work, and to separate the traffic lane from the work area.

It is the Secretary's burden, to establish that the Respondent knew with the exercise of reasonable diligence, could have known of the violative condition.  Astra Pharmaceutical Products, Inc., supra.

The traffic situation herein differs markedly from the area Tri-State was cutting in between barrels close to the men working.  Here no vehicular traffic would cross into the right lane since there was a visible parapet there; furthermore the highway vehicles were traversing on was slightly higher than the right adjacent roadway where the men were constructing forms; additionally, a white line on the roadway further introduced to the drivers the nature of the roadway, i.e. there was one lane only going to Covington, Kentucky, at the point involved herein.  There was at least one half mile of roadway past the work area before the drivers needed to move to the right in order to get to their destination.  The Respondent was aware of these factors.  There is no evidence that the Respondent knew there was a hazardous condition present or could have known it with reasonable diligence.  With the factors present as stated above, it cannot be said National failed to exercise reasonable diligence. The alleged violation of 29 C.F.R. 1926.201(a) (1) or in the alternative 1926.202 is vacated.

Another cogent reason to vacate these citations is the testimony of the Compliance Officer that both sections are not applicable to the situation at hand.  The Secretary did not disprove or give any evidence to vitiate the testimony of its main witness.

Citation No. 3, Item 1,

Alleged Violation of 29 C.F.R. 1926.350 (j) - Section 3.2.4.3. ANSI Z49.1-1967

The Respondent was cited for a non-serious violation of 1926.350(j) for failure to assure that oxygen cylinders in storage separated from fuel-gas cylinders or other combustibles by a minimum distance of 20 feet or by a noncombustible barrier at least five feet high having a fire-resistance rating of at least one-half hour in accordance with ANSI Z49.1 1967 Article 3.2.4.3.  The Compliance Officer observed oxygen cylinders approximately nine feet from flammable materials which were placed inside a storage trailer.  (Exh. C-69, C-77) The flammable items were inside the trailer and separated from the oxygen by the trailer wall.  The language of the statute requires the separation be by a noncombustible barrier at least 5 feet high.  There was the wall barrier present. As part of its prima facie case the onus was on the Secretary to prove that said wall barrier was not the prescribed fire resistant barrier contemplated by the standard.  That essential element of proof is missing. The citation is vacated.

AFFIRMATIVE DEFENSE - EMPLOYEE MISCONDUCT

Respondents National and Tri-State claim that even if there was a violation concerning failure to wear hard hats, failure to wear safety-toed shoes, and failure to wear safety glasses, it was the result of employee misconduct and should not be chargeable to them since their safety program specifically directed employees to use the protected devices required.

Firstly, no violation was found regarding the use of safety-toed shoes (Citation No. 1, item 1 was vacated).  The evidence of record establishes that the Secretary made out a prima facie case of a violation of the Act with reference to the failure to have employees wear hard hats (violation found against both National and Tri-State) and failure to have employees wear safety glasses (violation against National).

To establish the employee misconduct defense the employer must show that the violation resulted from employee actions which contravened a company work rule that was effectively communicated and uniformly enforced.  H.B. Zachry Co. v. OSHRC, 7 BNA OSHC 2202, affirmed, 638 F.2d 812 (5th Cir. 1981); Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270 (6th Cir. 1987) cert. denied, 108 S.Ct. 479, 98 L.Ed. 2d 509 (1987).

While employers are not strictly liable for their employees' conduct, the onus of compliance with the Act is on the employer, who has the duty to communicate and enforce feasible work rules in order to avoid liability for the violative conduct of its employees.  L.E. Myers, supra, at 1277, citing S.Rep. 1282, 91st Cong., 2d Sess. 10-11, reprinted in 1970 U.S. Code Cong. & Admin. News 5177, 5182; Towne Constr. Co. v. OSHRC, 847 F.2d 1187 (6th Cir. 1988) ; Danco Constr. Co. v. OSHRC, 586 F.2d 1243 (8th Cir. 1978) ("[Respondent] cannot fail to properly train and supervise its employees and then hide behind its lack of knowledge concerning their dangerous work practices").

The Secretary may prove an employer's knowledge of a preventable hazard "upon the introduction of proof of the employer's failure to provide adequate safety equipment or to properly instruct its employees on necessary safety precautions." L.E. Myers, supra, at 1277, noting Brennan v. OSHRC, 511 F.2d 1139, 1143, n.5 supra, at 1277, noting Brennan v. OSHRC, 511 F.2d 1139, 1143, n.5 (9th Cir. 1975) and Danco, supra. "[T]he employer ... must demonstrate that program's effectiveness in practice as well as in theory." Towne Constr., supra, citing L.E. Myers, supra.

Respondents failed to demonstrate that it had established work rules designed to prevent safety violations that was adequately communicated and effectively enforced, or had taken steps to discover these violations.  Jensen Constr. Co., 7 BNA OSHC 1477, 1979 CCH OSHD 23,664 (No. 76-1538, 1979); Texland Drilling Corp., 9 BNA OSHC 1023 (No. 76-5307, 1980). The presence of supervisory personnel at or near when the violations occurred indicate Respondents knew or could have with reasonable diligence known of the violations.  Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350, 11 BNA OSHC 1985 (3rd Cir. 1984). Respondents failed to demonstrate by a preponderance of the evidence that its safety program in practice was "thorough and adequate" and diligently enforced.  Their defense of employee misconduct must fail.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law contained in this opinion are incorporated herein in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.  Any proposed findings or conclusions not contained in this opinion are neither found nor concluded.

ORDER - IN RE: TRI-STATE STEEL CONSTRUCTI0N, INC.

In view of the foregoing, good cause appearing therefore, it is ORDERED that:

1) The allegation of serious violation set forth at 29 C.F.R. 1926. 59 (e) (1) found in item 1 (a) is vacated. Item No. 1 (b) alleging a serious violation of 29 C.F.R. 1926.59(e) (1) (i) is affirmed and a penalty of $200 is assessed.

2) The allegations of serious violations set forth at 29 C.F.R. 1926.59(f) (5) (ii) found in items 2(a) and 2(b) of citation No. 1 are affirmed, and a penalty of $200 is assessed, to reflect both items.

3) The allegations of serious violations set forth at 29 C.F.R. 1926.59(g)(1) found in items 3(a) and 3(b) of citation No. 1 are affirmed, and a penalty of $200 is assessed, to reflect both items.

4) The allegation of a serious violation set forth at 29 C.F.R. 1926.59(h) found in item 4 of citation No. 1 is affirmed, and a penalty of $200 is assessed.

5) The allegation of a serious violation of 29 C.F.R. 1926.100(a) found in item 5 of citation No. 1 is affirmed, and a penalty of $250 is assessed.

6) The allegations of serious violations set forth at 29 C.F.R. 1926.351(b) (1) found in items 6(a) and 6(b) of citation No. 1 are affirmed, and a penalty of $100 is assessed, to reflect both items.

7) The allegations of serious violations set forth at 29 C.F.R. 1926.201(a) (1) or in the alternative 29 C.F.R. 1926.202 found in item No. 1 of citation No. 2 are vacated.

ORDER - IN RE: NATIONAL ENGINEERING & CONTRACTING COMPANY

In view of the foregoing, good cause appearing therefore, it is ORDERED that:

1) The allegation of serious violation set forth at 29 C.F.R. 1926.28(a) found in item 1 of citation No. 1 is vacated.

2) The allegation of serious violations set forth at 29 C.F.R. 1926.59(e) (1) (i) , 29 C.F.R. 1926.59(f) (5) (1), and 29 C.F.R. 1926.59(f) (5) (ii) found in items 2(a) through 2(i) of citation No 1 is affirmed and a penalty of $400, is assessed to reflect all items.

3) The allegation of serious violations set forth at 29 C.F.R. 1926.59(g)(1) found in item 3(a) through (e) of citation No. 1 is affirmed, and a penalty of $200 is assessed, to reflect all items.

4) The allegation of serious violation set forth at 29 C.F.R. 1926.100(a) found in item 4(b) of citation No. 1 is affirmed, and a penalty of $350 is assessed.

5) The allegation of serious violations set forth at 29 C.F.R. 1926.102(a)(1) found in items 5(a) and (b) of citation No. 1 is affirmed, and a penalty of $300 is assessed to reflect all items.

6) The allegation of serious violations set forth at 29 C.F.R. 1926.151(a)(3) found in items 6(a) and (b) of citation No. 1 is affirmed, and a penalty of $150 is assessed, to reflect all items.

7) The allegation of serious violations set forth at 29 C.F.R. 1926.152(a)(1) found in item 7 of citation No. 1 is affirmed and a penalty of $150 is assessed.

8) The allegation of serious violations set forth at 29 C.F.R. 1926.152(g) (11) found in item 8 of citation No. 1 is vacated.

9) The allegation of serious violations set forth at 29 C.F.R. 1926.500(d) (1) found in items 9 (a) through (c) of citation No. 1 is affirmed, and a penalty of $350 is assessed to reflect all items.

10) The allegation of serious violations set forth at 29 C.F.R. 1926.600(a)(3)(i) found in item 10 of citation No. 1 is affirmed, and a penalty of $150 is assessed.

11) The allegation of serious violation set forth at 29 C.F.R. 1926.201(a)(1) or in the alternative 29 C.F.R. 1926.202 found in item 1 of Citation No. 2 is vacated.

12) The allegation of other than serious violation of 29 C.F.R. 1926.350(j) found in item 1(a) of citation No. 3 is vacated.

IRVING SOMMER
Judge, OSHRC

DATED: MAY 1 1991
Washington, D.C.


FOOTNOTES:
[[1]] Five of the nine issues listed in the Direction for Review are no longer before us because they focused on the merits of citation items that the Secretary has since withdrawn.  Only the three issues relating to the Respondents' Fourth Amendment defense and the one issue relating to the merits of item 9 remain before us on review.   Contrary to the Secretary's arguments on review, the Fourth Amendment issues stated in the Direction for Review are not limited in scope to the evidence gathered in support of item 9. At a minimum, the validity of the evidence introduced in support of all items affirmed by the ALJ and not subsequently withdrawn by the Secretary is at issue before us on review. See 29 C.F.R. 2200.92(a).

[[2]] The task of Tri-State's ironworkers was to repair or replace the "end dams" (or "expansion dams") and "expansion joints" on the two bridges, which are referred to throughout the record as bridges 6 and 2.  Dams and joints are two types of devices used in bridges to allow expansion and contraction during changing weather conditions.  The "end dams" or "expansion dams" are located at either end of a bridge and extend horizontally across the width of the road.  In contrast, the "expansion joints" run the same direction as the road. Because they are buried under the surface of the roadway, they become a pan of the bridge itself.  The rehabilitation work performed by Tri-State involved the use of cutting torches to cut the old welds, the replacement of old expansion joints, when necessary, and the use of welding machines to make new welds.  This work is frequently done from a sitting or crouching position, and the worker's vision is restricted by the welder's hood, making the worker particularly vulnerable to exposure to passing vehicles if adequate traffic control measures are not taken.

National's employees were responsible for demolition and removal of the roadway pavement covering the "expansion joints and "dams" so that the Tri-State employees could then come in and do their rehabilitation work.   National employees were also responsible for removing the existing guardrails on the concrete parapets along the sides of the elevated highway as part of the process of installing new parapets.  See Part IV of this decision, infra

[[3]]Given the slow speed of the traffic, due to the congestion, and the 50-foot spacing between the barrels, a motorist who washed to cross over to the opposite lane found it easy to do so.

[[4]] As indicated, National is the parent company of Tri-State. On project 8, the Respondents' three highest level management officials, including project superintendent Taylor, held their respective positions with both National and Tri-State.  Work crew foremen, however, worked either for National or for Tri-State.

[[5]] Once agreement was reached on this change in the traffic control measures. ODOT instructed Taylor to send his employees back into the work area. The employees therefore returned to bridges 6 and 2 later that same day.

[[6]] The Respondents assert that the complaint was filed by union business agent Shinkle of the Iron Workers Union, which represented Tri-State employees at the worksite.  However, the affidavit filed in conjunction with OSHA's warrant application, see discussion infra, states that the complaint was filed by "a representative of employees of the general contractor on the construction site, John R. Jurgensen Co." The complaint itself is not in the record.  The record does contain a summary of the complaint that was prepared by OSHA and attached to the warrant application.  However, that summary contains no information about the person who filed the complaint.

[[7]] The complaint summary, see supra note 6. described the alleged hazard as follows:

Barrels used to contain traffic on Fort Washington Way west bound east of the interchange for north and south bound 1-75 am not set to prevent truck and auto traffic from driving between them in order to change lanes.  Employees are working between two such rows of barrels and subject to being struck by vehicles changing lanes through the openings between the barrels.

[[8]] OSHA responded promptly because it considered the complaint to be an allegation that employees were exposed to an imminent danger.   OSHA also considered the complaint to be an allegation of conditions in violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. it 651-678 ("the Act").  Thus. CO William J. Wilkerson included the following statement in his warrant application affidavit, which we discuss infra: "In my opinion ... the complaint alleges serious conditions that are covered by 29 CFR 1926.201, 29 CFR 1926.202, Section 5(a)(1) of the Act and other parts."  Sections 1926.201 and 1926.202 are found in Subpart G of Part 1926, which contains provisions governing, among other things, traffic control measures during construction activities.  Section 1926.201 regulates the use of flaggers, while section 1926.202 regulates the use of barricades.  Section 5(a)(1) of the Act, 29 U.S.C 654(a)(1), the Act's "general duty clause," provides that "[e]ach employer. . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employers."

[[9]] During this two-hour period, Cannon personally observed four cars and one truck cross over the two center lanes.  These included vehicles going in both directions i.e., from the left-hand lane to the right-hand lane, and vice verse.  One of these incidents, in which a Jaguar passed through the work area and came very close to a group of Tri-State employees, was videotaped by CO trainee Boatman (Exh. C-12).  The inspection on May 4 was limited to the work area identified in the employee representative's complaint, and Cannon's focus was on "documenting the criss crossing traffic."  Cannon determined that the barrels arranged in rows on both sides of the work area were spaced irregularly, with the distances between barrels varying from 40 feet to 70 or 75 feet apart.  Some additional protection was provided to the employees by two trucks and three or four welding machines that were strategically placed in relation to the work crews.

[[10]] The record contains an alternative chronology of events.   This alternative chronology is based primarily on Cannon's deposition testimony, but it also finds some support in his testimony at the hearing, particularly during cross examination.  Under this version of events, the decision to conduct a full-scope inspection of project 8 and the agreement between the area director and Jurgensen's president on the installation of the snow fence both occurred on Friday, May 5, rather than Monday, May 8.  Most of the work on implementing this plan was done on Sunday night, May 7. and accordingly, when the CO returned to the site on Monday morning, May 8, most of the snow fencing had already been installed.  From our point of view in resolving the issues that are before us, it makes little if any difference which of these chronologies is correct.

[[11]] The secretary also argues that the evidence should not be suppressed in these cases even if the Fourth Amendment was violated.  Since we conclude herein that the Respondents Fourth Amendment rights were not violated, we have no occasion to reach these alternative arguments. which focus on the application of the exclusionary rule and the good faith exception to the exclusionary rule in the context of these proceedings.

[[12]] We further note the inconsistency between the Secretary's arguments before us and the Secretary's position at the time she issued her citations.  As a result of her investigation of the employee representative's complaint and her warrantless inspection of the area described in the complaint.   OSHA issued to Tri-State a citation alleging a willful violation of section 5(a)(1) of the Act, see supra note 8, and proposing a $9000 penalty.  The Secretary's allegation was that Tri-State violated the Act in the following manner: "Employees were allowed to work in an area that is part of an interstate highway system known as Ft. Washington Way westbound without adequate protection provided for employees to prevent automobile and truck traffic from driving through the work area subjecting employees to being struck by such vehicles" (emphasis added).  We find this allegation--in essence, that Tri-State violated the general duty clause by not taking adequate measures to keep the public out of the work area--to be incompatible with the Secretary's claim that the CO had a right to be in the work area because he was merely going into an area that was open to the public.

[[13]] The cases cited by the ALJ and by the Secretary do not convince us otherwise.  The judge cited Stephenson Enterp., Inc. v Marshall, 578 F.2d 1021 (5th Cir. 1978), for the proposition that "the observations [the compliance officer] made on the highway after parking his vehicle which were in plain view of all was not a constitutional violation."  However, the "plain view" observations that were referred to in Stephenson Enterp. were made during the course of a consensual workplace inspection.  The compliance officer was therefore lawfully in the place from which he made his observations because the employer had consented to the walkaround inspection.

The cases cited by the Secretary in support of the judge's reasoning are also distinguishable on similar grounds.  See, e.g. Ackermann Enterprises, Inc., 10 BNA OSHC 1709, 1982 CCH OSHD 26,090 (No. 80-4971, 1982), (CO inadvertently viewed violation from employer's parking lot after receiving permission from the employer's representative to wait for a management official in the parking lot).

[[14]] In arguing before us that the Fort Washington Way worksite was entitled to protection under the Fourth Amendment, the Respondents rely heavily on a case in which the United States Court of Appeals for the Seventh Circuit recognized the existence of a "business curtilage" exception to the "open fields doctrine.  United States v. Swart, 679 F.2d 698, 702 (7th Cir. 1982).   The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself." United States v. Dunn, 480 U.S. 294, 300 (1987)("Dunn")(emphasis added).  As discussed in Dunn, the concept has been incorporated into Fourth Amendment analysis, and the domestic curtilage is considered to be protected under the Fourth Amendment even though it may literally be both a field and open.  It is not at all clear under the case law, however, that a business has a "curtilage" in the same sense that a home does.  Even if it does, we fully agree with the Secretary that the concept of a "business curtilage" has no application to the situation at issue before us:

A "business curtilage" presumably would be the land surrounding and associated with a fixed place of business, as in Swart.   Here, there is no office, plant, or other commercial building to which a curtilage would attach.  There were only the open areas of the highways and bridges.

See generally Pearl Meadows Mushroom Farm Inc. v. Nelson, 723 F. Supp. 432, 439- 41 (N.D. Calif. 1989).

[[15]] Citing Oliver, 466 U.S. at 182-83, the Dunn Court noted that it had "expressly rejected the argument that the erection of fences on an open field--at least of the variety involved in these cases and in the present case--creates a constitutionally protected privacy interest."  480 U.S. at 304. In Dunn, as in Oliver, the Court was dealing with fences that were designed only to keep trespassers out (and, in Dunn, to keep livestock in).  The Dunn Court suggested that these types of fences must be distinguished, for Fourth Amendment purposes, from privacy fences that are designed to prevent outsiders from observing what lies within.  In the cases now on review, we conclude that the barriers at issue fall within the same category as the fences that were at issue in Oliver and Dunn.   As the Secretary correctly observed in her review brief, "virtually all of [Tri-States] construction activities took place in full view of motorists passing by on the open lanes of traffic" and [t]he widely-spaced traffic barrels obviously did nothing to impede this view." Nor were they intended to accomplish anything more than keeping motorists out of the work area.

[[16]] In Oliver, the Court applied the "open fields" doctrine even though the police, upon arriving at a farm, ignored a locked gate with a "No Trespassing" sign posted, followed by a footpath that led around one side of the gate, and eventually reached a marijuana patch in a highly secluded area that could not be seen from any point of public access.  As noted by the Dunn Court, the Oliver Court held that the steps taken to keep the public off of this private property did not create a reasonable expectation of privacy.  480 U.S. at 304 (citing 466 U.S. at 182).

[[17]] As indicated above, Wilkerson averred in his affidavit that the employee reprepresentative's complaint met the "formality requirements" of section 8(f)(1) of the Act.  These requirements are "stated in Chapter IX of OSHA's Field Operations Manual ("FOM"), .which was attached to the warrant affidavit as Exhibit B.  To meet these requirements, a complaint of unsafe or unhealthful working conditions must: " (1) Be reduced to writing (either on an OSHA-7 Form or in a letter); (2) Allege that an imminent danger or a violation threatening physical harm (i.e. a hazard coveted by a standard or by the general duty clause) exists in the workplace; (3) Set forth with reasonable particularity the grounds upon which it is based .... and (4) Be signed by at least one employee or employee representative." Section 8(f)(1) implicitly requires the Secretary to determine whether a complaint meets, the formality requirements set forth above.  The statute also expressly requires the Secretary to determine whether "there are reasonable grounds to believe" that the violations or imminent danger hazards alleged in the complaint actually exist.   "If upon receipt of [the complaint] the Secretary determines there arc reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists."

[[18]] On May 31, 1989, the Secretary filed in the district court an opposition to National's motion for a stay (See discussion of National's motion, infra). In that opposition, the Secretary argued that her warrant application had provided probable cause for a full-scope inspection--regardless of whether that application was evaluated under the provisions of paragraph 9.b. or paragraph 9.d. above: "[T]he Application for Inspection Warrant provides sufficient neutral criteria for an expanded inspection in even a low-hazard industry because of the additional safety hazards observed such as improper use and storage of flammable gases, failure tit remove welding rods from welding cable clips, and inadequate protection of workers from moving vehicular traffic."  As indicated above. Wilkerson stated in paragraph 2 of the affidavit that these additional safety hazards had been observed during the course of the section 8(f)(1) inspection.

[[19]] Under well-established Fourth Amendment case law. "[c]onsent effective to validate a warrantless search may be given by a person other than the victim of the search." Donovan v. A.A. Biero Constr. Co.. 746 F.2d 894, 898 (D.C. Cir. 1984). Such "third-party consent" may be given by anyone having common authority over the premises or effects that the government agent wishes to search. Id.  See also United States v. Matlock, 415 U.S. 164,171 (1974) Furthermore, such third-party consent is valid to justify a warrantless inspection even even the targeted party objects to the inspection, as Jurgensen, National, and Tri-State did in that cases.  See J L Fot: Constr. Co. v Donovan, 786 F.2d 714, 716-17 (6th Cir. 1986).  The third party, however can consent to inspection of the common areas and not to inspection of area under the exclusive authority of the targeted party. See, e.g. National Engg.& Contract Co. v OSHA, 928 F.2d 762, 766 (6th Cir. 1991) (quoting 4-4. Biero, 746 F.2d at 901-02)("While authority to consent to a 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").

[[20]] As set forth supra at note 12, OSHA issued a citation to Tri-State alleging a willful violation of section 5 (a) (1) of the Act, based on the conditions it discovered during its section 8(f)(1) complaint inspection.  When the Secretary filed her complaint in OSHRC Docket No. 89-2611, however, she amended the citation in question to allege that Tri-State committed a serious violation of either 1926.201 or 1916-202.  (This amendment changed only the Secretary's legal theory and not the factual basis of the charge; the citation was still directed essentially to Tri-State's failure to keep motorists out of the work area on Fort Washington Way).   In his decision in these consolidated cases, the ALJ vacated this contested citation, at least in part because of CO Cannon's opinion testimony that neither of the two standards cited in the amended charge applied to the cited conditions.  (The judge also found that the Secretary had failed to prove noncompliance with either of the standards assuming that they were applicable).  The judge expressed no opinion as to whether the cited conditions violated section 5 (a)(1) as the Secretary had originally charged.

[[21]] In view of our conclusion, infra, that the judge was correct in holding that the warrant was valid we need not reach the other arguments raided by the Secretary in her review brief.  We note, however, the inconsistency between (a) the Secretary's claim before us that the inspection at issue could have been conducted without a warrant and (b) the concession made by the Secretary before Magistrate Sherman that a warrant was necessary, even though she had already obtained third-party consent, because she intended to conduct (and indeed later did conduct) an inspection that went well beyond those conditions that were in "plain sight." See Supra note 19.

[[22]] In her review brief, the Secretary noted that "the administrative plan which formed the primary basis for seeking a full scope warrant has been changed" since the filing of the warrant application at issue in these cases.   In particular, the provision governing the expansion of complaint inspections in the construction industry has been revised.

[[23]] In any event, the Respondents discuss only the question of contractual responsibility, ignoring the more significant issue of legal responsibility under the Act.  Thus, for example, the duty imposed by section 5(a)(1) the Act, see supra note 8, to protect workers from recognized hazards that are causing or likely to cause death or serious physical harm, is a duty statutorily imposed on each employer with respect to its own employees.  The fact that others had the contractual responsibility for developing and implementing the traffic control plan did not mean that National and Tri-State were powerless to protect their own employees or that they were absolved of all responsibility under the Act to provide those employees with safe and healthful workplaces and working conditions.

[[24]] As set forth more fully in Part 1A of this decision, supra, OSHA made the decision to expand its inspection on Monday, May 8, and thereafter attempted to gather all of the contractors on project 8 for an opening conference.  However, these efforts fell apart when representatives of Jurgensen and of National/Tri-State demanded that OSHA obtain an administrative inspection warrant.  This warrant was obtained on May 9 and served on May 10, which was the day the formal walkaround inspection began.

[[25]] Specifically, the Respondents argue as follows in their review brief:

These observations [of "additional safety hazards,"as described in the affidavit] could only have been made by the compliance officer on the scene.  However, he testified [in his deposition] that these observations only occurred after May 9, not before.

[[26]] Even if the challenged statement is viewed as being OSHA's determination rather than Wilkerson's personal opinion, we cannot conclude that the asserted misrepresentation had any effect on the magistrate's determination of administrative probable cause.  In effect, the challenged statement presented the magistrate with either of the alternative theories that the Secretary later advocated in the proceedings before the commission that is that the conditions described in the employee representative's complaint and confirmed by Cannon's work place inspection were in violation of 1926.201 or 1926 202 or section 5(a)(1) of the Act.  Assuming that there was disagreement within OSHA over which of these legal requirements covered the at issue we conclude that OSHA had no obligation to bring this disagreement to the magistrate's attention. From the view point of the magistrate in making his probable cause determination, the significant fact was that insofar as this record shows everyone in OSHA involved in the inspection and warrant application process agreed that the hazard in question violated the Act

[[1]] The American Heritage Dictionary, New College Edition, 1976, Houghton Mifflin Company, Publishers, p. 1361.

1926.28 Personal protective equipment.
(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

1926-152 Flammable and combustible liquids.
(a) General requirements. (1) only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids...