Regional Scaffolding & Hoisting Co., Inc.

Plain-English summary

An OSHA compliance officer observed and videotaped employees dismantling an exterior hoist without fall protection, first from a public plaza and then from a federal courthouse roof. Regional Scaffolding argued that the surveillance violated the Fourth Amendment and the OSH Act's credential and walkaround provisions. The Commission held that work exposed to public view carried no reasonable expectation of privacy even when observed from a location not open to the general public. It also held that the statutory credential and walkaround requirements apply to physical, on-site inspections, and the officer complied when he entered the worksite. The Commission criticized the delay in alerting the employer to a potentially fatal hazard but affirmed two serious violations and penalties of $1,500 and $3,500, while one item remained vacated. Commissioner Montoya concurred in the result but would have suppressed evidence gathered from the courthouse roof.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2); 29 C.F.R. § 1926.1051(a); 29 C.F.R. § 1926.500(d)(2)
• Outcome: Two serious violations and $5,000 in penalties were affirmed; one citation item remained vacated.
• Key point: OSHA may observe work exposed to public view from off-site without a warrant, and statutory credential and walkaround rights attach when the inspector physically enters the worksite.

Full text (OSHRC public release)

                                      :

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC Docket No. 93-577
:
REGIONAL SCAFFOLDING & :
HOISTING CO., INC., :
:
Respondent. :
:

                                    DECISION

Before: WEISBERG, Chairman; MONTOYA, and GUTTMAN, Commissioners.
BY THE COMMISSION:
The Occupational Safety and Health Administration (“OSHA”) issued citations
alleging that Regional Scaffolding & Hoisting Co., Inc. (“Regional”) violated three OSHA
safety standards. Regional contested the citations, and a hearing was held before Chief
Administrative Law Judge Irving Sommer, who vacated one of the items and affirmed the
others as serious violations.
Regional argued before the judge that the manner in which the inspection was
conducted violated both the Fourth Amendment of the Constitution of the United States and
section 8(a) of the Occupational Safety and Health Act of 1970 (“the Act”), 29 U.S.C.
§ 657(a). The judge rejected these arguments, and Regional sought review of those rulings.
The merits of the violations alleged are not before us; the only issues on review involve the
propriety of the inspection. Oral argument was held on whether the compliance officer’s
actions contravened the requirements of the Fourth Amendment or section 8(a).1 For the
reasons below, we affirm the judge.
Background.

   1
       Because of the similarity of the issues presented, the Commission heard oral

argument in this case and in L.R. Willson and Sons, Inc., No. 94-1546, on the same day.
 2

   Regional was a subcontractor on a project that involved extensive renovations to the

facade of the New York City Municipal Building. Because the building remained fully
occupied by city employees, the workmen could not gain access to their work areas by the
inside elevators. Regional therefore erected a hoist tower on the north face of the building,
connected to the building by structural steel. The hoist had two cars to carry workmen and
supplies to levels where they were to work. Work on the north side of the building had been
completed, and Regional was in the process of dismantling the hoist when the area director
of OSHA’s New York office noticed employees on top of the cars of the hoist with no visible
fall protection.
Upon his return to his office, the area director instructed an OSHA compliance officer
to inspect the worksite. The compliance officer arrived the next morning prior to 8:00 a.m.,
before work had begun. When work commenced, the compliance officer was approximately
75-100 yards away from the hoist on a ramp to a federal building, across the public plaza
from the Municipal Building. From that vantage point, which was a public area, he observed
two individuals climbing across the roof of one of the hoist cars, a part of the car that was
not protected by guardrails
At this point the compliance officer believed that the activities he had observed
violated various OSHA standards, and he videotaped the activity of the employees on the top
of the hoist car. While he videotaped, he saw employees climb from one of the hoist cars,
across the hoist tower, and onto the other car. One car rose to the twenty-fifth floor of the
Municipal Building with employees on the roof, and an employee walked from the hoist 10
feet across an unguarded 16-inch-wide “pick” to the window of the building, entered the
building, detached the hoist tower from the building, and returned across the pick to the hoist
car. Because there was no fall protection, the employee faced the possibility of falling
twenty-five stories. The compliance officer’s view of the hoist was partially obscured,
however, and he could not discern exactly what was taking place. He went next door to the
federal courthouse, where it took him about half an hour to get permission to go on the roof.
 3

From the roof of the courthouse, the compliance officer got a closer look at the activities in
question and further videotaped the activities. The compliance officer completed his
videotaping and went to the worksite, where he presented his credentials to Regional’s
foreman. He determined that the individuals he had observed were employees of Regional,
interviewed one of the employees, and left the premises. The compliance officer
subsequently returned to the worksite to interview additional Regional employees, but they
were not at the site. He obtained their names and addresses from Regional’s office and
interviewed them away from the worksite. Based on his observations and interviews, OSHA
cited Regional for two serious violations and one repeated violation.2
The compliance officer did not give Regional any notice that he was observing and
videotaping the activities of its employees before he entered the worksite to speak to the
foreman. Regional complains that this observation of its worksite without notice violated
both the Fourth Amendment and sections 8(a) and 8(e) of the Act.

   2
   The citations alleged a serious violation of 29 C.F.R. § 1926.21(b)(2), which requires

employers to familiarize their employees with applicable OSHA standards and to train them
to recognize and avoid hazards, a serious violation of 29 C.F.R. § 1926.1051(a) for not
providing a ladder for employees to get off the roof of the hoist, and a repeated violation of
29 C.F.R. § 1926.500(d)(2), which requires guardrails on runways.
 4

                            The Fourth Amendment.
   The administrative law judge rejected Regional’s argument that the compliance

officer’s actions violated the Fourth Amendment because he found that the observations were
made from areas accessible to the public. He stated, “If OSHA’s observations are made from
an area easily accessible or visible to the general public, Fourth Amendment protections do
not apply.” Regional has argued that the converse of that statement is also true: “If such
observations are not made from an area that is easily accessible or visible to the general
public, Fourth Amendment protections do apply.” (emphasis in original). Regional contends
that, because the compliance officer’s observations were made from the roof of a federal
courthouse, a location not open to the public at large, they should be suppressed.
The Supreme Court has held that the Fourth Amendment to the Constitution3 requires
the Secretary to obtain a warrant in order to conduct an inspection of a workplace without
the consent of the employer. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). However,
“[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment
protection.” Katz v. United States, 389 U.S. 347, 351 (1967). “What is observable by the
public is observable without a warrant by the Government inspector as well.” Marshall v.
Barlow’s, Inc., 436 U.S. at 315. That precept governs the facts here: Regional’s work was
performed out in the open, exposed to public view. Regional is asserting a desire to be free
of observation by the government, but this expectation of privacy is not reasonable under the
Fourth Amendment where its activities were open to public view.

   3
    The Fourth Amendment to the Constitution provides:


          The right of the people to be secure in their persons, houses, papers,
   and effects, against unreasonable searches and seizures, shall not be violated,
   and no Warrants shall issue, but upon probable cause, supported by Oath or
   affirmation, and particularly describing the place to be searched, and the
   persons or things to be seized.

5

   Nor is a reasonable expectation of privacy necessarily determined, as Regional

asserts, by the location from which the observations are made. For example, police
observations of a drug transaction taking place on a public sidewalk, made from private
property, are permissible because the participants in the transaction can have no reasonable
expectation of privacy for their conduct in such a location. United States v. Green, 670 F.2d
1148 (D.C. Cir. 1981) (observations with binoculars from undisclosed surveillance location
of activities occurring in the public view gave police probable cause to arrest). The same
principle controls the situation in this case. Although some of the compliance officer’s
observations may have been made from a location that was not accessible to the general
public, the worksite was open to public view.4 Regional was working on the exterior of the
New York City Municipal Building, which housed 5,000 employees, many of whom could
look out the windows of the building and see the activities covered by the citation. In
addition, everyone on the side of the federal courthouse facing the Municipal Building could
observe Regional’s activities, as well as passersby on the sidewalks and the occupants of
other high-rise buildings within eyeshot. Regional cannot, therefore, claim that it had a
“‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded
by government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979). We therefore find that
the compliance officer’s observations did not constitute an “unreasonable search” within the
prohibition of the Fourth Amendment.

   4
       The judge correctly held that the “plain view” doctrine set out in Coolidge v. New

Hampshire, 403 U. S. 443 (1971), does not apply to the facts of this case. That doctrine
applies to situations where the government officer is legally on premises for another purpose
and unexpectedly sees evidence of a crime unrelated to the purpose that took him onto the
premises. Arizona v. Hicks, 480 U.S. 321, 324-27 (1987).
 6

                              Section 8(a) of the Act.
   The parties dispute whether section 8(a) of the Act prohibits the kind of conduct

involved here, extended observations made from a location removed from the worksite.
Section 8(a) provides:
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.
As we have held today in L.R. Willson and Sons, Inc., No. 94-1546, section 8(a)
applies only to physical inspections conducted on the worksite. Regional’s arguments must
therefore be rejected because the conduct of which it complains took place entirely off-site.
We agree with Regional that workplace hazards observed by OSHA compliance personnel
should be brought to the attention of employers with all reasonable speed so that they can
be abated, and the length of time that elapsed here is worrisome. As we have stated in L.R.
Willson and Sons, Inc., we question the wisdom of the compliance officer’s continuing at
length to allow employees to be exposed to a potentially fatal hazard for the sake of further
documenting a violation. We believe that such conduct is contrary to the purposes of the
Act, and we urge the Secretary to take measures to discourage it.
Having found that there was no violation of either the Fourth Amendment or section
8(a) of the Act, we need not determine whether it is appropriate to require an employer to
show actual prejudice before a remedy will be afforded, or to decide what remedy would be
appropriate for an intentional violation of section 8(a).
 7

                               Section 8(e) of the Act.
   Congress enacted section 8(e) of the Act to permit the employer and employees to

accompany the compliance officer in order for them to be of assistance to him or her in
performing the inspection.5 Whirlpool Corp. v. Marshall, 445 U.S. 1, 9 (1980). Having held
that section 8(a) applies only to on-site inspections of a worksite, we also hold that section
8(e)’s provisions similarly apply only to on-site inspections. In this case, as soon as the
compliance officer made a physical entry onto the worksite, he presented his credentials to
Regional’s foreman and afforded Regional its right to accompany him on a walk-around
inspection, which is all that section 8(e) requires.
Degree of violation and penalty.
The administrative law judge found that Regional had committed two serious
violations and assessed penalties of $1,500 and $3,500 respectively. On review, neither
party has challenged either the characterization of the violations as serious or the
appropriateness of the penalties assessed. Accordingly, we find no reason to disturb the

   5
    Section 8(e), 29 U.S.C. § 657(e), provides:


   INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING
            *      *      *
       (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.

8

judge’s determination that the violations were serious and that penalties of $1,500 and
$3,500 are appropriate.
Order.
For the reasons above, we affirm the decision of the administrative law judge rejecting
Regional’s arguments based on the Fourth Amendment to the Constitution and on sections
8(a) and 8(e) of the Act. We further affirm his finding that the two violations were serious
and that penalties of $1,500 and $3,500 are appropriate.

                                              /s/
                                              Stuart E. Weisberg
                                              Chairman



                                              /s/
                                              Daniel Guttman

Dated: March 11, 1997 Commissioner
MONTOYA, Commissioner, concurring:
As I have said today in L.R. Willson and Sons, No. 94-1546, the majority has now
cleared the way for OSHA to conduct its inspections by stakeout. I concur with their
conclusion that, like L.R. Willson and Sons, Inc. (“Willson”), Regional Scaffolding &
Hoisting Co. (“Regional”) has no interest in privacy that is protected under current Fourth
Amendment law. I strongly disagree, however, with their conclusion that the kind of
surveillance activity engaged in by the compliance officer here is permissible under sections
8(a) and 8(e) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 657(a) and
(e). On the authority of these sections, I would suppress the evidence this compliance officer
gained through covert surveillance of Regional’s worksite from the roof of the U.S. Federal
Court House. However, I consider the compliance officer’s initial observations from the
public plaza between the Municipal Building and Court House, and the testimony from
Regional’s employees, sufficient to support both the violations found by the majority and
their penalty assessments. I therefore agree with their ultimate decision to affirm Judge
Sommer’s disposition of this citation.
Because the Fourth Amendment provides no remedy for the covert surveillance the
compliance officer conducted of Regional’s worksite, then any remedy available to Regional
must lie in section 8 of the OSH Act. The Secretary has argued that the provisions of section
8 are coextensive with those of the Fourth Amendment -- that section 8 provides no remedies
beyond those recognized under the Fourth Amendment. Though the majority has rightly
rejected that view, I do not agree with their rationale. Indeed, I consider the majority’s
conclusion that section 8 protections are at once “broader” than those of the Fourth
Amendment, yet “narrower” for the single purpose of exempting off-site inspections, to be
a result-driven “gerrymander” of the most obvious sort. In my opinion, Congress intended
that these protections should be broader than those of the Fourth Amendment for all
purposes.
The Commission has already determined that section 8(a)(1) guarantees employers
that inspections will be conducted at “reasonable times, and within reasonable limits, and in
 2

a reasonable manner.” When OSHA deliberately violates these guarantees, then the
Commission can apply an appropriate sanction. See Hamilton Fixture, 16 BNA OSHC 1073,
1078, 1993 CCH OSHD ¶ 30,034, p. 41,173 (No. 88-1720, 1993), aff’d without published
opinion, 28 F.3d 1213 (6th Cir. 1994). It is only reasonable, then, that an equivalent sanction
is available when OSHA deliberately violates the rights guaranteed in sections 8(a) and 8(e).
Therefore, if an OSHA compliance officer enters a worksite and deliberately conducts an
inspection without first “presenting appropriate credentials to the owner, operator, or agent
in charge,” as required by section 8(a), some remedy must be available to an employer.
Also, some remedy must be available if “a representative of the employer and a
representative authorized by his employees” is not “given an opportunity to accompany” the
OSHA compliance officials, as required by 8(e)(known generally as “walkaround rights”).
In my opinion, the compliance officer here intentionally violated both of these
provisions when he began his inspection by conducting surveillance of the worksite from the
roof of the U.S. Court House. As the Supreme Court has recognized in the Fourth
Amendment context, a search does not necessarily involve “a physical intrusion into any
given enclosure.” Katz v. United States, 389 U.S. 347 353 (1967). See also United States
v. Knotts, 460 U.S. 276 (1983) (approving surveillance of driver of automobile by police
using beepers, automobiles and helicopter); and United States v. Conner, 478 F.2d 1320 (7th
Cir. 1973) (approving observations made by police from end of alley through open garage
door into automobile repair shop). In Dow Chemical Co. v. United States, 476 U.S. 227
(1986), the Supreme Court analyzed the inspection provisions in section 114(a) of the Clean
Air Act, 42 U.S.C. § 7414(a), and explicitly held that “the use of aerial observation and
photography is within EPA’s statutory authority.” 476 U.S. at 232. For the Court to have
made this holding, it must have considered that the Environmental Protection Agency was
engaged in an inspection when it photographed Dow’s plant from a remote location.6 Since

   6
       As with the compliance officer in this case, the Environmental Protection
                                                                   (continued...)

3

the operative provisions of section 114 of the Clean Air Act read much like those of section
8 of the OSH Act, I can only conclude that this compliance officer was likewise engaged in
an inspection when he gathered evidence from the roof of the hotel. This inspection was
commenced in deliberate violation of the requirements of sections 8(a) and 8(e).
This does not mean that all observations made by compliance officers before they
present credentials or provide walkaround rights are subject to sanction. As the Commission
has recently recognized, incidental observations made while a compliance officer is
approaching a worksite do not offend the provisions of section 8 of the Act. See GEM
Indus., Inc., 17 BNA OSHC 1184, 1186-87, 1993-95 CCH OSHD ¶ 30,762, pp. 42,746-47
(No. 93-1122, 1995). Therefore, the observations made by the compliance officer upon his
arrival in the public plaza between the Municipal Building and Court House are admissible.
However, the compliance officer then concealed himself at a remote location in order to
further document this violative conduct, rather than presenting his credentials and providing
walkaround rights as required by sections 8(a) and 8(e). Again, such surveillance can only
be considered part of an inspection within the meaning of section 8. And, since this part of
the inspection was deliberately conducted prior to the presentation of credentials as required
by section 8(a), with no opportunity for Regional or its employees to exercise walkaround
rights provided in section 8(e), some sanction must be applied.
The majority could have decided this case on the initial observations the compliance
officer made from the public plaza and the testimony of Regional’s employees without

   6
  (...continued)

Administration officials in Dow Chemical Co. v. United States, 476 U.S. 227 (1986)
presented no credentials before beginning a remote surveillance. Unlike this case, however,
Dow was decided on Fourth Amendment grounds alone. The majority’s reading of Dow
notwithstanding, the Court offered no opinion as to whether the inspection provisions of
section 114(a), 42 U.S.C. § 7414(a), provide protections beyond those of the Fourth
Amendment.
 4

reaching any of these section 8 issues. Nonetheless, as in L.R. Willson and Sons, they have
gratuitously concluded that the protections provided by section 8 are generally broader than
those of the Fourth Amendment. In doing so, however, they have conveniently found a
narrowing of section 8 regarding off-site inspections, thereby denying employers any remedy
when OSHA conducts off-site surveillance such as here. Though they claim to find this
narrowing in the language of section 8 itself, the courts have found no such limitation in the
Fourth Amendment, nor in the closely-related inspection provisions of the Clean Air Act.
Indeed, section 8(b) gives OSHA the authority to subpoena witnesses in the furtherance of
an inspection. By enacting this provision, Congress clearly intended that section 8 would
apply to inspection activity that would occur off-site. Having now eliminated the only basis
on which an employer can seek relief from a covert inspection, there is little solace to
employers in the majority’s criticism of OSHA’s inspection policy. Congress did not give
the Commission oversight authority to affect OSHA’s internal policies, but rather “intended
to delegate to the Commission the type of nonpolicymaking adjudicatory powers typically
exercised by a court . . . .” (emphasis in original). Martin v. OSHRC (CF&I Steel Corp.),
499 U.S. 144, 154 (1991).
The Commission has determined that the exclusionary rule applies to its proceedings.
Sanders Lead Co., 15 BNA OSHC 1640,1651, 1991-93 CCH OSHD ¶ 29,690, p. 40,270 (No.
87-0260,1992). While the Circuit Courts have agreed, they have also said that the good
faith exception should be liberally applied when considering orders of abatement. Trinity
Industries v. OSHRC, 16 F.3d 1455, 1462 (6th Cir. 1994); Smith Steel Casting v. Brock, 800
F.2d 1329, 1334 (5th Cir. 1896). Given the compliance officer’s deliberate violation of
section 8, I can see no reason to give the Secretary the benefit of the good faith exception
here. I would therefore apply the sanction of suppression to all evidence gathered by the
compliance officer as a result of his surveillance from the roof of the U.S. Court House
across the plaza from the worksite. However, the observations the compliance officer made
 5

from the public plaza when he first arrived are sufficient to support both these citations and
the majority’s penalty assessment.
The Secretary argues that Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984) and Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144
(1991) require the Commission to give deference to his reading of section 8. It is true that
the Supreme Court has said that when the Commission finds an OSHA standard to be
ambiguous, then it, like all reviewing courts, must give deference to the Secretary’s
reasonable interpretation of that standard. However, the CF&I Steel Court was careful to
explain that “[b]ecause applying an agency’s regulation to complex or changing
circumstances calls upon the agency’s unique expertise and policy making prerogatives, the
power authoritatively to interpret its own regulations is a component of the agency’s
delegated lawmaking powers.” Id. at 151. This reasoning certainly applies when the
Commission is confronted with an ambiguity in a standard promulgated by the Secretary.
But that is not the case here. What we are now asked to determine is what -- if any -- legal
remedy should be afforded to an employer when OSHA intentionally violates section 8 of
the OSH Act. Like OSHA, the Commission is itself an agency established under the OSH
Act. Repeating the words of CF&I Steel, “Congress intended to delegate to the Commission
the type of nonpolicymaking adjudicatory powers typically exercised by a court . . . .”
CF&I Steel, 499 at 154 (emphasis in original). The issue here -- whether the exclusionary
rule and its suppression remedy apply when the Secretary intentionally violates section 8 of
the OSH Act -- must be decided in accordance with rules of evidence created by the courts.
As the Commission is the agency with the “adjudicatory powers typically exercised by a
court,” then the most logical application of Chevron and CF&I Steel would be to give
deference to the Commission, not the Secretary, on such a purely legal decision as this.
The Secretary has cited a number of cases under section 8 for the proposition that the
employer must show actual prejudice in order for section 8 sanctions to apply. All of those
cases, however, involve unintended “technical violations” of section 8 by OSHA personnel.
 6

Here the compliance officer deliberately avoided his statutory duty to present his credentials
and to allow the employer and the employees to participate in the inspection. In a case such
as this, it can easily be said that the employer was prejudiced per se, and it is hardly
appropriate to require the employer to show actual prejudice for a sanction to apply. The
Secretary’s unsupported representation at oral argument that she now has administrative
controls in place to prevent the improper conduct of inspections provides little reassurance.
Particularly considering that the Secretary has refused to acknowledge that the OSH Act
places any limitations on her inspection authority, the license the majority now has given her
to support citations with evidence gathered secretly from off-site is cause for concern.
Conclusion.
For the reasons stated, I concur in the result reached by the majority, although I arrive
at this result by a different course of reasoning.

                                        /s/
                                        Velma Montoya

Dated: March 11, 1997 Commissioner