Filed: June 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-1492

L. R. Willson and Sons, Incorporated,

Petitioner,

versus

Occupational Safety & Health Review Commission; Secretary of Labor,

Respondents.

ORDER

The court amends its opinion filed January 28, 1998, as

follows:

On the cover sheet, section 2 -- the caption is amended to add

“Secretary of Labor” as a respondent.

On page 2, lines 1 and 7 -- the word “Respondent” in the

counsel listing is changed to read “Respondents.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

L. R. WILLSON AND SONS,

INCORPORATED,

Petitioner,

v. No. 97-1492

OCCUPATIONAL SAFETY & HEALTH

REVIEW COMMISSION; SECRETARY

OF LABOR,

Respondents.

On Petition for Review of an Order

of the Occupational Safety and Health Review Commission.

(94-1546)

Argued: October 31, 1997

Decided: January 28, 1998

Before RUSSELL and LUTTIG, Circuit Judges, and CAMPBELL,

Senior Circuit Judge of the United States Court of Appeals for the

First Circuit, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opinion. Judge Russell wrote the opinion, in which Judge Luttig joined.

Judge Campbell wrote a concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Frank Leo Kollman, KOLLMAN & SHEEHAN, P.A.,

Baltimore, Maryland, for Petitioner. Charles Franklin James, Office

of the Solicitor-OSH, UNITED STATES DEPARTMENT OF
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LABOR, Washington, D.C., for Respondents ON BRIEF: Randi

Klein Hyatt, KOLLMAN & SHEEHAN, P.A., Baltimore, Maryland,

for Petitioner. J. Davitt McAteer, Acting Solicitor of Labor, Joseph

M. Woodward, Associate Solicitor for Occupational Safety and

Health, Ann Rosenthal, Counsel for Appellate Litigation, Office of

the Solicitor-OSH, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Respondents

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

L.R. Willson and Sons, Inc. ("Willson") appeals the Occupational

Safety and Health Review Commission's affirmance of a citation by

the Secretary of Labor (the "Secretary") for violation of the Occupational Safety and Health Act of 1970 ("the Act").1 The Secretary

issued the citation as a result of an inspection of one of Willson's construction worksites in Orlando, Florida that revealed that Willson

employees were working on structural steel more than 80 feet above

ground without using the "fall protective devices" mandated by 29

C.F.R. § 1926.750(b)(1)(ii).2 An Administrative Law Judge ("ALJ")

of the Occupational Safety and Health Administration ("OSHA") held

an evidentiary hearing on the matter, concluded that Willson had

indeed violated the regulation, and assessed a fine of $7,000. The

Safety and Health Review Commission (the "Commission") affirmed

the ALJ's findings, and this appeal followed.

Because we find that the Commission erred in placing the burden

of showing the unforeseeability or preventability of the violation in

question on Willson, we reverse.

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1 29 U.S.C. §§ 651-678 (1994).

2 This regulation states in part that: "On buildings or structures not

adaptable to temporary floors, and where scaffolds are not used, safety

nets shall be installed and maintained whenever the potential fall distance

exceeds two stories or 25 feet."

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I.

The inspection that resulted in the Secretary's citation took place

on April 29, 1994, and was precipitated by the observations of Joseph

Dear, Assistant Secretary of Labor for Occupational Safety and

Health. Dear, whose room at the Peabody Hotel was across the street

from Willson's worksite in Orlando, observed from his window

employees on the site working without fall protection. Dear telephoned Ronald Anderson, a local OSHA "compliance officer," and

told him of what he had seen, and Anderson came to make an inspection of the site. However, rather than going immediately to the Willson site, Anderson obtained permission from the Peabody Hotel to

videotape the activities on the site from the hotel's roof. For approximately 50 minutes, Anderson videotaped the activities at the site,

which included two employees working at a height of about 80 feet

without adequate safety cables, through a "16" power camera lens.

Anderson then went to the site, presented his credentials, and was

allowed to interview the two employees he had observed.

During the interview and at the hearing before the ALJ, the two

employees, Randall Manley ("Manley") and Donald McVay

("McVay"), admitted to violating the OSHA regulation, and Manley,

who said he considered himself a foreman on the site, stated that he

realized safety cables were required, but that they had not been

installed on certain parts of the site. In addition, Manley stated his

belief that the cables that had been installed were unsuitable.

In rebuttal, James Willson, Willson's vice president for field operations, testified that the area where Manley and McVay were observed

working without safety cables had not been opened for work, and that

the two had begun work there without authorization from a supervisor. However, Willson also admitted that Manley was a "leadman" on

the job, and that as such, he was responsible for making sure that his

crew members observed all relevant safety regulations.

The ALJ found that Manley and McVay were working at a height

of at least 75 feet without adequate protection, and that Manley's

knowledge of that lack of protection was imputed to Willson as a

result of Manley's supervisory authority. The ALJ also rejected Willson's defense of unforeseeable employee misconduct.

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II.

Willson asserts several grounds for reversing the Commission's

order. We address each in turn.

A.

Willson first claims that the ALJ erred in admitting Anderson's

videotape of Manley and McVay because the tape was made in violation of the Fourth Amendment to the U.S. Constitution. Since the possible application of the Fourth Amendment's exclusionary rule to this

case involves a mixed question of law and fact, we review this issue

de novo.3

As Willson notes, the Fourth Amendment's protection against

unreasonable searches and seizures extends to commercial property,4

but, in addition, that protection must be premised on a "reasonable

expectation of privacy."5 Willson argues that it had such an expectation with regard to the Orlando construction site, and that therefore

Anderson's warrantless observation of that site was illegal. The Commission found that there was no reasonable expectation of privacy

because, "[a]nyone on the side of the [Peabody] hotel facing the Civic

Center could observe the activities [on the Willson site] . . . ."6 We

agree.

Although surveillance is a type of search that can invoke Fourth

Amendment protections if performed unreasonably, we hold that

Anderson's long-distance observations were not unreasonable. What

Anderson's tape recorded was easily observable by anyone on one of

the hotel's upper stories, which seems to fall squarely within the basic

Fourth Amendment principle, restated by this court in Tarantino v.

Baker,7 that "a person has no `reasonable expectation of privacy'

_________________________________________________________________

3 United States v. Gastiaburo, 16 F.3d 582, 585 (4th Cir. 1994).

4 Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978).

5 Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).

6 J.A. at 325.

7 825 F.2d 772 (4th Cir. 1987).

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when he leaves conditions permitting a curious passerby to invade his

`private space.'"8 In addition, in addressing a similar situation in

which an OSHA compliance officer took still photographs of work at

a site before actually approaching the site and requesting an inspection, the Commission held that "there is no constitutional violation

when an inspector makes observations from areas on commercial

premises that are out of doors and not closed off to the public . . . ."9

Although, as Willson points out in its brief, the roof of the Peabody

Hotel was not completely open to the public, and Anderson did

employ a high powered lens in shooting the videotape, the crucial

aspect of the situation seems to be that Willson left the construction

site open to observation from vantages outside its control. As the

inquiry should focus on what sort of "expectation of privacy" Willson

had, we believe that a sustained view from a hotel across the street

is difficult to classify as an unreasonable intrusion into Willson's "private space."10 That this sustained view was enhanced by the use of a

telephoto camera lens does not change this conclusion.11 Therefore,

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8 Tarantino v. Baker, 825 F.2d 772, 776 (4th Cir. 1987) (quoting

United States v. Head, 783 F.2d 1422 (9th Cir. 1986)). Although

Tarantino involved a suit under 42 U.S.C. § 1983 and thus inquired into

whether the constitutional rule in question was"clearly settled," its discussion of what constitutes a "reasonable expectation of privacy" is

instructive.

9 Secretary of Labor v. Concrete Constr. Co., 15 O.S.H.C. 1614, 1617

(1992).

10 See Marshall v. Western Waterproofing Co., 560 F.2d 947, 950-51

(8th Cir. 1977). The Marshall court held that there was no Fourth

Amendment violation in a case where an OSHA inspector obtained

access to a private building to view adjacent repair scaffolding as "a person who exercises control over premises may consent to a search and

evidence gathered in that search may be used against persons who did

not consent." Id. at 950 (citations omitted).

11 See Dow Chemical v. United States, 476 U.S. 227, 238 (1986)

(EPA's use of high-powered camera lenses in aerial surveillance did not

violate company's reasonable expectation of privacy because, despite the

fact that "they undoubtedly give EPA more detailed information than

naked-eye views," the photographs "remain limited to an outline of the

facility's buildings and equipment"). Such seems to be the case here.

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we hold that there was no Fourth Amendment violation on which to

base an exclusion of the surveillance videotape.

B.

Willson also contends that the surveillance violated § 8(a) of the

Act ("§ 8(a)"). Specifically, Willson argues that § 8(a) requires that an

OSHA inspector present his credentials before any "inspection" of a

"factory, plant, establishment, construction site, or other area . . . ."12

Willson contends that this requirement extends to observations of

such areas, and that the surveillance thus violated § 8(a) because

Anderson did not present his credentials to the"owner, operator, or

agent in charge"13 of the Willson site. Again, we disagree with Willson's argument, and affirm the Commission's holding on this issue.

As the Commission made clear in its decision, § 8(a) is both

broader and narrower in scope than the Fourth Amendment. It is

broader in scope "because, even when the employer has consented to

a compliance officer's entry and thus waived any protection under the

Fourth Amendment, section 8(a)(2) may be violated if, for example,

the on-site inspection is not conducted at reasonable times, within reasonable limits, and in a reasonable manner."14 In addition, the Commission noted that § 8(a) is also narrower in scope than the Fourth

Amendment in that it requires an actual entry onto a site before its

protections are invoked.15 We believe that the Commission was correct in this characterization of § 8(a).

In full, § 8(a) provides that:

In order to carry out the purposes of this chapter, 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

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12 29 U.S.C. § 657(a)(1) (1994).

13 Id. § 657(a).

14 J.A. at 327.

15 Id.

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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.16

The Commission, at the Secretary's urging, read § 8(a)(1) as focusing

on the entrance onto a worksite, and thus concluded that it does not

apply to "off-site" observations such as the one in this case. We agree.

As the legislative history of the Act makes clear, § 8(a) was

designed "for government personnel to have the right of entry in order

to ascertain the safety and health condition and status of compliance

of any covered employing establishment."17 With this purpose in

mind, the legislative history indicates that § 8(a) deals with "the

inspector's presence" at a worksite, and refers exclusively to "physical inspection[s]" of such sites.18 Nothing in the statute or its legislative history indicates that § 8(a)'s requirements apply to nontrespassory observations of worksites. In addition, as such an application would only be found despite § 8(a)'s failure to speak "to the precise question at issue,"19 we must defer to the Secretary's clearly

reasonable interpretation of that provision.20 Therefore, we hold that

Anderson's surveillance did not violate § 8(a).

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16 29 U.S.C. § 657(a) (1994).

17 S. Rep. No. 91-1282 (1970), reprinted in 1970 U.S.C.C.A.N. 5177,

5187 (emphasis added).

18 Id.

19 Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842

(1984).

20 Id. at 844.

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C.

Further, we find without merit Willson's contention that the surveillance violated Willson's "walk-around rights"21 under § 8(e) of the

Act ("§ 8(e)").22 Like § 8(a), § 8(e) applies to "physical inspections,"23

of worksites, and, as a result, "walk-around rights" would also seem

inapplicable to such long-distance observations. We are unpersuaded

by Willson's efforts to characterize the surveillance as an "hour

inspection," and are of the opinion that § 8(e) uses the term "physical

inspection" carefully, intending to denote an otherwise trespassory

entrance onto the inspectee's property. Thus, we find § 8(e) inapplicable to this case.

D.

Based on the foregoing, we hold that the ALJ correctly admitted

the surveillance videotape into evidence.

III.

Willson next argues that the Commission incorrectly placed on

Willson the burden of showing that the conduct of Manley and

McVay was unforeseeable or unpreventable. Specifically, Willson

takes issue with the Commission's conclusion that, because a "supervisory employee" committed the violations in question, the knowledge of those violations should be imputed to Willson, and that it was

thus incumbent upon Willson to "establish that it made good faith

efforts to comply with the fall protection standards."24 Willson argues

that this finding is contrary to clearly established law, and we agree.

In Ocean Electric Corp. v. Secretary of Labor 25 we held that,

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21 "Walk-around rights" refers to the inspectee's right to have the

OSHA inspector accompanied by one of the inspectee's employees during the inspection.

22 29 U.S.C. § 657(e) (1994).

23 S. Rep. No. 91-1282 (1970), reprinted in 1970 U.S.C.C.A.N. 5177,

5187.

24 J.A. at 332.

25 594 F.2d 396 (4th Cir. 1979).

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despite a finding of knowledge of the violation on the part of a supervisory employee, the Commission bore the burden of proving that the

supervisory employee's acts were not unforeseeable or unpreventable.26

In the present case, however, the Commission ignored this precedent,

and, having imputed knowledge of the violation because of Manley's

"Leadman" position, placed the burden of showing "good faith efforts

to comply with the fall protection standards" squarely on Willson.27

Because we find this burden-shifting in direct contravention of our

rule announced in Ocean Electric, we reverse the Commission's

decision.28

Although some sister circuits have held that unpreventable

employee misconduct "is an affirmative defense that an employer

must plead and prove,"29 this circuit and others clearly agree that such

must be disproved by the Secretary in his case-in-chief.30 That the

Secretary bears this burden is clearly the law of this circuit per Ocean

Electric, and we see no reason to change that here.

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26 Ocean Elec. Corp. v. Secretary of Labor, 594 F.2d 396, 401 (4th Cir.

1979).

27 J.A. at 332. Significantly, the improper burden-shifting complained

of in Ocean Electric consisted of the Commission's requirement of a

"showing by the employer that the supervisory employee with knowledge of the violation was himself adequately supervised with regard to

safety matters." Ocean Elec., 594 F.2d at 401 (citations omitted). We

find this requirement substantially similar to the one at issue in this case.

28 The Secretary contends that Ocean Electric should not apply here, as

Manley was accompanied by McVay, who was not a supervisory

employee. However, in so doing the Secretary ignores the fact that the

ALJ in this case found the prima facie case of a violation because of

Manley's status, and then placed on Willson the burden of rebutting with

the "affirmative defense" of employee misconduct, and the Commission

affirmed. J.A. at 289; 332.

29 New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98,

107 (2d Cir. 1996) (holding that unforeseeability and unpreventibility are

affirmative defenses and citing authority from the First, Fifth, Sixth,

Eighth, and Eleventh Circuits in support of this proposition).

30 See Ocean Elec., 594 F.2d at 401; Capital Elec. Line Builders v.

Marshall, 678 F.2d 128, 129 (10th Cir. 1982); Pennsylvania Power &

Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984); Mountain States

Tel. & Tel. Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980).

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Ocean Electric's reasoning is consistent with the clear intent of the

Act.31 Therefore, we reaffirm its application in this circuit, and hold

that the Commission's burden-shifting in this case was error. Accordingly, we reverse the Commission on this ground.

IV.

Willson also argues that the $7,000 fine levied by the Secretary

was excessive. However, as the Secretary notes, this allegation is procedurally barred, as 29 U.S.C. § 660(a) clearly states that, "[n]o objection that has not been urged before the Commission shall be

considered by the [reviewing] court, unless the failure or neglect to

urge such objection shall be excused because of extraordinary

circumstances."32 As the fine in question was clearly a part of the

ALJ's order,33 it could have been raised before the Commission but

was not.34 Therefore, having found no extraordinary circumstances to

excuse this omission, we hold that the fine cannot properly be considered here.

V.

Based on the foregoing, we reverse the Commission's order, and

remand the case for proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED

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31 See Ocean Electric, 594 F.2d at 399 (Congress clearly did not intend

employer to be insurer of employee safety: rather, employers are to promote such safety "as far as possible" (quoting 29 U.S.C. § 651)).

32 29 U.S.C. § 660(a) (1994).

33 J.A. at 294.

34 In its reply brief, Willson claims that the argument in its brief before

the Commission (not included in record) that the ALJ was in error "not

to vacate the citation in its entirety" constitutes the presentment of the

fine issue to the Commission. We disagree.

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CAMPBELL, Senior Circuit Judge, concurring:

I agree with the court's able opinion, but, in repect to the determinative issue, I limit my agreement to the fact that Ocean Electric

Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979), is controlling precedent in this Circuit and appears in these circumstnaces to be

correctly applied in accordance with its terms. As a visitor, I see no

occasion to decide, and do not decide, whether, as the opinion states,

"Ocean Electric's reasoning is consistent with the clear intent of the

Act" and whether it is desirable to "reaffirm its application in this circuit."

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