OSHRC Docket No. 5619

Occupational Safety and Health Review Commission

November 15, 1978


Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor

Paul R. Hundt, C F & I Steel Corporation, for the employer

Miles C. Cortez, for the employer

Wayne Anzick, President, United Steelworkers of America, for the employees




This case is on remand from the Tenth Circuit, following reversal by that court of a Commission decision vacating a citation for failure of the Secretary to afford CF&I its walkaround right under section 8(e) n1 of the Act. n2

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n1 Section 8(e) states:

(e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

n2 Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 (1970).


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CF&I was charged with a violation of the general duty clause, section 5(a)(1) of the Act, for exposing its employees to flame, extreme heat and molten metal during charging operations at its "W" basic oxygen furance located at its Pueblo, Colorado facilities. In contesting the citation, CF&I based its defense on the manner in which the Secretary conducted the inspection which led to the citation. n3

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n3 Before the administrative law judge, CF&I also defended on the ground that no violation of the general duty clause occurred.

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The inspection was prompted by CF&I notification to OSHA that an explosion in one of CF&I's furnaces had resulted in the death of two employees of an independent contractor, State, Inc., who were working in the furnace building. On the day following the notification, three OSHA compliance officers arrived at CF&I's safety office and stated that they were there to investigate the death of the State, Inc. employees [*3] and wished to make arrangements with State, Inc. for the investigation. They did not present their credentials to CF&I's safety officials, but they were well-known to those officials because they had conducted numerous previous inspections of CF&I. Although the two-day inspection was initially directed at State, Inc., representatives of CF&I were present at the opening conference, accompanied the compliance officers during some employee interviews and site visits and participated in the closing conference, at which CF&I was informed that it might receive a citation.

The thrust of CF&I's argument is that the compliance officers misled it into believing that only State, Inc. was being investigated, because they did not present their credentials and advise CF&I at the outset that it was being inspected. CF&I argues that higher company officials would have accompanied the compliance officers had CF&I realized it was a subject of the investigation, and therefore that it was effectively deprived of its "walkaround" right afforded by section 8(e).

Administrative Law Judge John J. Morris rejected this argument, affirmed the citation and imposed a penalty of $300. His decision was directed [*4] for review on the issue of whether the Secretary had complied with sections 8(a) n4 and (e) of the Act. After reviewing the case, a divided Commission vacated the citation on the ground that the Secretary had failed to afford CF&I its "walkaround" rights under section 8(e). The Commission did not address the section 8(a) issue.

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n4 Section 8(a) states:

(a) In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized-

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

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The U.S. Court of Appeals for the Tenth Circuit reversed in a split decision. Marshall v. CF&I Steel Corp., 576 F.2d 809 (10th Cir. 1978). In rejecting CF&I's argument, the court concluded that the Secretary had substantially complied with section 8(e). It noted that there was no serious contention that the Fourth Amendment had been violated. The court further held that CF&I clearly understood the purpose of the inspectors' visit because CF&I itself had reported the fatalities to OSHA on the previous day. It also observed that there was no effort to prevent CF&I representatives from accompanying the compliance officers and that CF&I personnel were in fact present during the walkaround. The court further found that CF&I was notified that it might receive a citation as soon as that possibility became apparent. Finally the court held that CF&I did not suffer prejudice as a result of not receiving more formal notice of the inspection at the outset and that the sanction of dismissal is grossly excessive in relation to the actions of the inspectors.

The court remanded the case to us to "reinstate the citation and [*6] conduct further proceedings consistent with this decision." 57 F.2d at 814. Since the court dealt only with the section 8(e) issue, the question of whether the Secretary complied with section 8(a) in conducting its inspection of CF&I remains before us. In Western Waterproofing Co., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1303-1304, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976), rev'd on other grounds, 560 F.2d 947 (8th Cir. 1977) and Environmental Utilities Corp., 77 OSAHRC 40/A2, 5 BNA OSHC 1195, 1197, 1977-78 CCH OSHD para. 21,709 (No. 5325, 1977), the Commission held that it would not provide a remedy for failure to comply with section 8(a) unless the noncompliance violates the Fourth Amendment. Upon review of the Commission decision is Western Waterproofing Co., supra, the Eighth Circuit held that even if section 8(a) is not coextensive with the Fourth Amendment, there is no section 8(a) violation where there has been neither a Fourth Amendment violation nor prejudice to the employer as a result of a failure of compliance officers to present their credentials. 560 F.2d at 951, cited in Minnotte Contracting & Erection Corp., 78 OSAHRC 15/D4, 6 BNA OSHC 1369, 1372, [*7] 1978 CCH OSHD para. 22,551 (No. 15919, 1978). As noted above, in ruling upon CF&I's section 8(e) arguments, the Tenth Circuit concluded that CF&I was not prejudiced by its failure to receive a more formal notice of the inspection at the outset because it knew the inspectors and the purpose of their visit. This finding is equally applicable to CF&I's section 8(a) argument. Moreover, it is clear that there was no Fourth Amendment violation here, because CF&I consented to the compliance officers' entry. Stephenson Enterprises, Inc. v. Marshall 578 F.2d 1021 (5th Cir. 1978); Dorey Electric Co. v. OSAHRC, 553 F.2d 357 (4th Cir. 1977). Thus, as there is no Fourth Amendment violation and CF&I suffered no prejudice, its argument that the Secretary violated section 8(a) must be rejected.

Inasmuch as review was directed only on the section 8(a) and (e) issues and CF&I did not raise any other arguments in its brief on review, no further issues remain for disposition. Therefore, we affirm the citation and the penalty inposed by Judge Morris' order.