LACLEDE GAS COMPANY

OSHRC Docket No. 76-3241

Occupational Safety and Health Review Commission

October 31, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

John J. Brazil, Laclede Gas Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On February 14, 1977, Administrative Law Judge Alan M. Wienman issued a decision finding respondent, Laclede Gas Company (Laclede), in serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 [hereinafter cited as "the Act"] for failure to comply with the standard published at 29 CFR 1910.28(j)(4). n1 A penalty of $100 was assessed. We affirm.

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n1 29 CFR 1910.28 Safety requirements for scaffolding.

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(j) Boatswain's chairs.

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(4) The workman shall be protected by a safety life belt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold), or to securely rigged lines, which will safely suspend the worker in case of a fall.

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Respondent petitioned the Commission for review of the judge's decision. The petition, which was granted n2 pursuant to section 12(j) n3 of the Act, raised the following issues:

(1) Whether the citation was issued with reasonable promptness as required by section 9(a) n4 of the Act?

(2) Whether the taking of photographs of the worksite by the compliance officer with a telephoto lens, prior to contacting respondent's officials, violated sections 8(a) n5 and 8(e) n6 of the Act; and, if so, whether the judge erred by failing to exclude the evidence so obtained?

(3) Whether the judge erred by not finding that the failure to comply with the cited standard was the result of an "isolated incident" of employee misconduct?

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n2 Former Commissioner Moran also issued a general Direction for Review.

n3 29 U.S.C. 661(i).

n4 Section 9(a), 29 U.S.C. 658(a), states in pertinent part:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.

n5 Section 8(a), 29 U.S.C. 657(a), provides:

(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.

n6 Section 8(e), 29 U.S.C. 657(e), provides:

(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.

[*3]

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Laclede is a natural gas distributor in St. Louis, Missouri. On June 3, 1976, seven Laclede employees, some of whom were suspended in boatswain's chairs, were painting the structural framework of a gas holding tank about 100 feet above the ground. Late in the morning on that day, OSHA Compliance Officer Kris E. Strobach passed respondent's worksite as he was driving his car on Highway 40 in St. Louis. Mr. Strobach testified that he came within 200 to 300 feet of the worksite, from which distance he thought he observed one employee who was not tied off. Mr. Strobach stopped his car at the side of the highway and took several photographs of the employees with a camera that he said was equipped with a "200 or 250" millimeter telephoto lens. He testified that he observed, through the lens, three employees on the gas holding tank who were not attached to the safety lines that had been provided and that were dangling within several feet of each man.

Mr. Strobach testified that after taking the photographs, he proceeded to the worksite n7, where he identified himself to the job foreman, Cornelius Anderson. [*4] Mr. Anderson notified respondent's safety director by telephone of the compliance officer's presence. Upon the safety director's arrival at the worksite with three other company officials, an opening conference was conducted. Mr. Strobach informed respondent's representatives of what he had observed and photographed, and indicated that he wished to conduct an inspection of the worksite.

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n7 The compliance officer's testimony gives the impression that there was a lengthy delay between the time he first noticed the alleged violation and the time he reached the worksite. The record as a whole, however, does not support that conclusion. The compliance officer testified that he passed the worksite at approximately 10:30 to 10:45 a.m.; that it took him several minutes to find a place to stop the car and about twenty minutes to take the photographs; and that he thought he reached the worksite at around noon because the employees were cating lunch. The foreman, who appears in one of the photographs, testified that he went up on the structure to call the employees down to lunch at about 11:40 a.m. Mr. Werner, one of respondent's supervisors, said that he was called at approximately 11:45 a.m. and informed that Mr. Strobach was on the premises to make an inspection. It appears, therefore, that not as much time passed between the compliance officer's first observation of the worksite and his actual arrival there as he estimated at trial. It is noted that respondent does not contend that any undue delay occurred.

[*5]

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During the formal inspection, Mr. Strobach spoke with two of the employees who had been working on the gas holding tank. Both admitted that they had not been tied off late that morning. Mr. Anderson also admitted that the two men were not tied off when he went up to tell them it was time for lunch. Anderson testified that the third employee in one of the photographs identified by the compliance officer at trial was definitely tied off at the time Anderson was on the tank with the other men. No violations are alleged to have occurred during the formal inspection.

Thirteen days after the inspection, respondent was issued a citation for serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1910.28(j)(4). A penalty of $600 was proposed by the Secretary. Judge Wienman affirmed the citation, but reduced the penalty to $100. The judge rejected the argument that the citation was not issued with reasonable promptness because respondent failed to allege any prejudice caused by the delay, and because the 13-day delay was not unconscionable.

The judge at the [*6] hearing denied respondent's pretrial motion to suppress all photographs and testimony concerning events that occurred before the formal inspection began. Respondent raised this issue again in its post-hearing brief, arguing that any evidence obtained prior to the time the compliance officer presented his credentials constituted part of an illegal inspection in violation of sections 8(a) and 8(e) of the Act. Judge Wienman rejected this argument, noting that the failure of the compliance officer to conduct the inspection in accordance with sections 8(a) and (e) does not automatically require the exclusion of the government's evidence. The judge also noted that a showing of prejudice must be made before a citation will be vacated because of the Secretary's failure to comply with sections 8(a) and (e), and that respondent had not met its burden of showing that it had been prejudiced. Moreover, the judge found that, even if the compliance officer's testimony and the photographs were excluded, sufficient independent evidence, in the form of admissions by respondent's employees, existed to establish the violation.

Finally, the judge rejected respondent's defense that the failure of [*7] the employees to tie off was the result of an isolated incident of unpreventable employee misconduct in violation of respondent's safety rules. In rejecting the argument, the judge noted that at least two employees were not tied off, and that one of the employees admitted to having failed to tie off on several previous occasions. Nevertheless, in reducing the penalty to $100, the judge noted that respondent had an excellent safety record and exhibited good faith in its efforts to comply with the Act.

On review, respondent reiterates the arguments made before the judge. First, respondent contends that the citation must be vacated because it was not issued with "reasonable promptness" as required by section 9(a) of the Act. Respondent also contends that the delay violated a provision in the Secretary's Field Operations Manual which urges that citations be issued within 72 hours of an inspection. Respondent does not, however, allege any prejudice caused by the delay. Absent such a showing of prejudice n8 a citation will not be vacated because of the Secretary's alleged failure to issue a citation with "reasonable promptness." Stephenson Enterprises, Inc. v. Marshall, 578 F.2d [*8] 1021 (5th Cir. 1978). Moreover, a citation will not be vacated because the Secretary failed to comply with the Field Operations Manual. The Field Operations Manual contains only guidelines for execution of enforcement operations. These guidelines are for internal application. They do not have the force and effect of law, nor do they accord procedural or substantive rights to individuals. FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977).

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n8 Commissioner Barnako would vacate a citation not withstanding the absence of demonstrated prejudice when the delay is unconscionable. Todd Shipyards Corp., 77 OSAHRC 18/A2, 5 BNA OSHC 1012, 1976-77 CCH OSHD P21,509 (No. 8500, 1977); Jack Conie & Sons Corp., 76 OSAHRC 70/A2, 4 BNA OSHC 1381, 1976-77 CCH OSHD P20,849 (No. 6794, 1976) concurring opinion). Respondent has the burden to establish that the delay is unconscionable. Louisiana-Pacific Corp., 70 OSAHRC 63/E14, 5 BNA OSHC 1572, 1976-77 CCH OSHD P21,977 (No. 6277, 1977). It has failed to carry this burden here.

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Respondent next argues that the compliance officer violated sections 8(a) and 8(e) of the Act by taking photographs of the worksite prior to his presentation of credentials, and that, therefore, the photographs should have been excluded from the evidence. Respondent asserts that it was prejudiced by the taking of photographs before being given an opportunity to exercise its section 8(e) walkaround rights. According to respondent, it was prejudiced by not being present because it could not rely on the compliance officer, who was the only non-employee who witnessed the violation, to testify on its behalf in any grievance or arbitration proceeding concerning disciplinary actions against the employees involved. Respondent also argues that the allegation by an "outsider" of employee misconduct based on an incident the employer did not witness would tend to stir up labor-management disputes. We find respondent's arguments unpersuasive.

The Commission has stated that the rights granted by section 8(a) are coextensive with those granted by the fourth amendment, and that an employer's section 8(a) rights therefore are not violated unless the circumstances [*10] also show a violation of the fourth amendment. Western Waterproofing Co., Inc., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD P20,805 (No. 1087, 1976), rev'd on other grounds, 560 F.2d 947 (8th Cir. 1977). In this case respondent's argument, that section 8(a) requires the exclusion of evidence obtained prior to the presentation of credentials, raises the issue of whether respondent's fourth amendment right to privacy was violated. n9 Under that amendment, the right to privacy exists only where there is a reasonable expectation of privacy. In Environmental Utilities Corp., 77 OSAHRC 40/A2, 5 BNA OSHC 1195, 1977-78 CCH OSHD P21,709 (No. 5324, 1977), the Commission held that respondent could not claim such a reasonable expectation of privacy where its trench abutted a public thoroughfare and was open to public view. See also Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976).

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n9 Although not dispositive of this case, we note that the Supreme Court has held that section 8(a) of the Act is unconstitutional to the extent that it authorizes warrantless inspections without the consent of the employer. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). The Commission has held, however, that the exclusionary rule does not apply to warrantless inspections conducted prior to the announcement of Barlow's. Meadows Industries, Inc., (No. 76-1463, September 7, 1979).

[*11]

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The facts in this case also establish that respond-dent had no reasonable expectation of privacy. The compliance officer observed the violative condition with his naked eye while driving on a highway near the worksite. The Commission has held that where a worksite is visible from a public roadway, photographs taken from that location prior to the presentation of credentials may be admitted into evidence. Minnotte Contracting & Erection Corp., 78 OSAHRC 15/D4, 6 BNA OSHC 1369, 1978 CCH OSHD P22,551 (No. 15919, 1978). Similarly, the Ninth Circuit has held that, in the absence of substantial prejudice, evidence discovered by the compliance officer before the presentation of his credentials should not be suppressed. Hartwell Excavating Company v. Dunlop, 537 F.2d 1071 (9th Cir. 1976); Hoffman Construction Company v. OSHRC, 546 F.2d 281 (9th Cir. 1976).

The only question remaining, therefore, is whether the compliance officer's use of a telephoto lens, both to view the worksite and to take photographs, removed that portion of the inspection from the coverage of the plain view doctrine described [*12] above. Courts have stated that the use of senseenhancing devices, such as binoculars, does not violate a person's fourth amendment rights. United States v. Lee, 274 U.S. 559 (1926); United States v. Minton, 488 F.2d 37 (4th Cir. 1973), cert. denied, 416 U.S. 936 (1974). We hold that a worksite remains in plain view even where it is observed through a telephoto lens, and that no exclusion of the evidence obtained in that manner is required. n10

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n10 Assuming, arguendo, that the photographs and the testimony of the compliance officer should have been excluded, we find, infra, that there was sufficient independent evidence in the form of employee testimony to establish the violation.

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In order to warrant the exclusion of evidence obtained during an inspection conducted in violation of section 8(e) of the Act, there must be a showing that the Secretary's failure to comply with section 8(e) caused respondent to suffer prejudice in the preparation or presentation of its defense. Marshall v. Western [*13] Waterproofing Co., Inc., 560 F.2d 947 (8th Cir. 1977); Able Contractors, Inc., 77 OSAHRC 184/A2, 5 BNA OSHC 1975, 1977-78 CCH OSHD P22,250 (No. 12931, 1977).

Respondent's claim that the compliance officer's alleged failure to comply with section 8(e) could create labor-management problems is not the type of prejudice contemplated by the Act. The Commission has consistently stated that prejudice under section 8(e) of the Act must be of the type that prejudices the employer in the preparation or presentation of its defense. n11 Accu-Namics, Inc. v. OSHRC, supra; Able Contractors, Inc., supra. Thus we conclude that the circumstances of this inspection do not warrant the exclusion of any evidence obtained therefrom.

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n11 Respondent's claim relates to another action, not this one. Further, any possible prejudice is conjectural at best, for the necessity to defend in a grievance or arbitration proceeding may never arise, and we are unconvinced that respondent's case would be prejudiced.

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Finally, respondent [*14] argues that the citation should be vacated because the failure of its employees to tie off was the result of an isolated occurrence of employee disobedience of its safety rule. Respondent points out that it provides its employees with the requisite safety belts, lanyards, and lifelines and that it instructs the employees in the use of the equipment. Respondent further states that its employees are constantly reminded to use their safety equipment and cautioned that any employee who fails to use it will be disciplined. Moreover, daily visits are made by respondent's superintendent of plants and station operations to insure that employees comply with all safety rules.

Although the record indicates that, overall, respondent has a very good safety program, it also reveals that a weakness in that program is the efficacy of its rule on safety belts.

In order to establish the defense of unpreventable employee misconduct, the employer must show that the employees' action constituting noncompliance was a departure from a workrule that was uniformly and effectively communicated to employees and enforced. Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, [*15] 1978 CCH OSHD P22,805 (No. 3069, 1978).

Although there is no evidence of a written rule requiring the use of safety belts, the evidence does establish that at least in one safety meeting employees were instructed to use such safety equipment. The record also reveals, however, that the rule was widely disregarded. Patrick Kennealy, one of the employees observed by the compliance officer, admitted at the hearing that there were times when he failed to tie off his safety belt. Moreover, Cornelius Anderson, respondent's painting foreman on the job at the time of the inspection, stated that he saw both Kennealy and another employee, Curtis Wade, working without being tied off. Mr. Anderson stated that he is responsible for insuring that employees use their safety equipment, and that although he lacks disciplinary authority, he is supposed to report safety violations by the employees to his supervisors. There is no evidence that Mr. Anderson informed his supervisors of the work rule violation. There also is no evidence that on this occasion he ordered the employees to tie off, although the reason may have been that it was time for them to break for lunch. The record as a whole, however, [*16] indicates a lack of enforcement of the workrule. See Leo J. Martone and Associates, Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977-78 CCH OSHD P21,718 (No. 11175, 1977).

The knowledge of a foreman is imputable to his employer absent a showing that the employer took all necessary precautions to present the occurrence of the violation. Floyd S. Pike Electrical Contractor, Inc., supra. More specifically, an employer must show that its safety rules were effectively and uniformly enforced, by discipline if necessary. Again, the record in this case reveals a pattern of employee disregard of respondent's safety belt workrule. In addition, there is no evidence that the foreman was adequately supervised, that he was informed effectively of the rule, or instructed to enforce it. Accordingly, the defense fails. Niagara Mohawk Power Corporation, 79 OSAHRC    , 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979).

We agree with the judge that a penalty of $100 is appropriate. The violation was serious. Had an accident occurred, an employee would have fallen 100 feet to his death. We also find that the violation was of substantial gravity. The record reveals [*17] that at least two employees were not tied off, and that at least one of them periodically failed to secure his safety belt. Nevertheless, respondent has no record of previous OSHA violations and is, therefore, credited for its excellent safety history. Moreover, respondent's good faith has been exhibited by its substantial commitment to safety and by the steps it has taken to enforce its safety program.

Accordingly, it is ORDERED that insofar as it is consistent with this decision, the judge's decision is AFFIRMED.