UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

March 26, 1980

DECISION

BEFORE CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). A decision of Administrative Law Judge F. Daley Abels is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). Specifically, the judge’s decision is before the Commission by direction of Commissioner Cottine on the following limited issue, raised by the Respondent, Daniel International Corporation (‘Daniel’), in its petition for discretionary review:

Whether the Administrative Law Judge erred in denying the Respondent’s motion to suppress the evidence on the ground that the inspection was not an unreasonable search and seizure in violation of the fourth amendment to the United States Constitution.1

Because we conclude that the judge correctly denied Daniel’s motion to suppress, we affirm the judge’s decision and order.2

I

On August 31, 1977, two compliance officers of the Occupational Safety and Health Administration, U.S. Department of Labor (‘OSHA’), traveled to a construction site in Iatan, Missouri, where Daniel was engaged in the construction of an electrical generating plant (‘the Iatan Project’). The compliance officers were responding to a complaint filed by a Daniel employee alleging hazardous working conditions at the Iatan Project. Upon the arrival of the compliance officers at the worksite, compliance officer William H. Jackson asked to see Daniel’s project manager, W. F. Critchfield was located and Jackson presented his credentials to Critchfield.3

Jackson and Critchfield knew each other prior to August 31, 1977, and had developed an amicable business relationship by that time. Jackson had conducted three prior inspections of the Iatan Project and Daniel employees had been present at the worksite during the second and third of those inspections. Jackson and Critchfield had met each other during one of the prior inspections. In addition to knowing Jackson prior to August 31, 1977, Critchfield had also thoroughly examined OSHA compliance officer credentials prior to that date. Thus, he was aware that the credentials contained language indicating that compliance officers were authorized to conduct inspections without delay. Accordingly, when Jackson presented his credentials to Critchfield on August 31, 1977, Critchfield looked at them but apparently only summarily.

Following this presentation of Jackson’s credentials, Jackson gave Critchfield a copy of the employee complaint that had prompted the inspection. Jackson stated that the compliance officers were present at the Iatan Project for the purpose of investigating the complaint. Jackson made no statement to the effect that he had a right to conduct an inspection and investigation. Nor did he request permission to do so. Jackson did not advise Critchfield either that Critchfield could refuse entry or that he could demand the procurement of a search warrant. There is no indication that Jackson made any threatening or coercive statements or any misrepresentations concerning his authority to conduct an inspection and investigation.

Critchfield did not know that he had a right to refuse entry or a right to demand a search warrant. He ‘had the impression’ that the compliance officers’ credentials gave them the right to inspect the worksite and that the credentials were the equivalent of a search warrant. Moreover he was ‘under the impression’ that he could be prosecuted for refusing entry because he thought it was illegal to interfere in the performance of any government agent’s duty. This belief was not based upon but was reinforced by the statements in the OSHA compliance officer credentials. Accordingly, while Critchfield did not expressly consent to the inspection and investigation, he made no statement indicating in any way that the inspection and investigation could not be conducted or that Daniel objected to them. Critchfield merely called in Peter Hamel, Daniel’s construction manager, and turned the matter over to him. The inspection and investigation commenced and continued without interference from Daniel throughout a two-week period ending on September 13, 1977. Employer representatives accompanied the compliance officers during the ‘walkaround’ inspections.

II

As a result of the Iatan Project inspection and investigation, the Secretary issued to Daniel four citations alleging one serious violation, two willful violations, two repeated violations, and 21 nonserious violations of the Act. In addition, penalties totaling $13,760 were proposed. Daniel contested all of the alleged violations and proposed penalties. The Secretary’s complaint and Daniel’s answer were filed and the case was assigned to Administrative Law Judge Paul E. Dixon.4 In its answer, Daniel asserted as its ‘Eighth Defense’ that ‘[t]he inspection which gave rise to the issuance of the citations herein was an unreasonable search and seizure in direct contravention of the Fourth Amendment to the Constitution of the United States.’

A hearing on Daniel’s notice of contest was subsequently scheduled before Judge Dixon. On the morning of June 6, 1978, just prior to the commencement of this hearing, Daniel filed and served a written motion to suppress the evidence and a memorandum in support of the motion. The motion was ‘made on the grounds that Respondent was deprived of its rights under the Fourth Amendment to the Constitution of the United States, in that the search was conducted without a lawful warrant, without probable cause and without Respondent’s consent and was therefore an unreasonable search and seizure within the meaning of the Fourth Amendment.’ In support of its motion, Daniel cited the decision in Barlow’s, note 3 supra, which had just recently been announced on May 23, 1978. It argued that, because no search warrant was issued in the instant case, ‘the search of Respondent’s job site was unconstitutional and any evidence obtained as a result thereof is inadmissable under the exclusionary rule unless the Secretary can prove that the respondent consented to the search.’ Citing Bumper v. North Carolina, 391 U.S. 543 (1968), it asserted that the Secretary could not meet this burden by showing ‘no more than acquiescence to a claim of lawful authority.’ 391 U.S. at 549. It further contended that its agents did not affirmatively consent to the search and that any consent that might have been implied was ‘not voluntarily given’ because it ‘was vitiated by the duress and coercion of the Secretary’s representatives.’ Daniel’s allegation of duress and coercion was based principally upon the standardized statement in OSHA compliance officer credentials that compliance officers were authorized to conduct inspections without delay, 5 supra at note 3, and secondarily on statutory and regulatory provisions assertedly indicating that an employer who denied a compliance officer entry could be ‘faced [with] a possible criminal charge.’6 In addition, Daniel argued that there was no consent because Critchfield did not know that he had a right to demand a warrant.

When the scheduled hearing began at noon on June 6, 1978, the first matter considered was Daniel’s motion to suppress. A preliminary hearing was held on this issue in which compliance officer Jackson and project manager Critchfield testified as to the facts set forth in Part I of this decision. There was no significant inconsistency in the testimony of these two witnesses. In addition to hearing the evidence presented, Judge Dixon also heard extensive oral argument from counsel for both parties. During the course of this argument, the judge repeatedly stated his view that Daniel had consented to the search because the compliance officers were not denied entry. However, it appears that he decided not to base his ruling on this ground. After receiving the evidence and hearing the argument, Judge Dixon denied Daniel’s motion to suppress the evidence on the ground that he would not apply the holding in Barlow’s retroactively. Following rulings on other prehearing motions, Judge Dixon proceeded to a hearing on the merits of the contested citations and penalties. The hearing concluded on June 8, 1978.

In its post-hearing brief, Daniel ‘strenuously renew[ed] and argue[d] its motion to suppress,’ as stated by Judge Abels. In response to Judge Dixon’s ruling, Daniel argued that Barlow’s rendered section 8(a) of the Act ‘ineffective and void for all times’ and accordingly that the compliance officers had no statutory authority to enter onto the Iatan Project. In addition, it argued that the doctrine of retroactivity is inapplicable to the present situation because the Barlow’s decision did not establish a ‘new rule’ but instead ‘reaffirmed well-established Fourth Amendment standards dating back to Camera [sic] v. Municipal Court, 387 U.S. 523 (1967) and See v. City of Seattle, 387 U.S. 541 (1967).’ Alternatively it argued that, if the doctrine of retroactivity is applicable, then Barlow’s should be applied retroactively under principles established in Supreme Court decisions dealing with the general question of retroactivity. Finally, in another alternative argument, Daniel contended that, if Barlow’s is to be applied only prospectively, it should be applied in all cases, including the instant case, where the hearing is held after the decision in Barlow’s (as distinguished from all cases in which the inspection occurs after the decision). Daniel also reiterated its contentions that the inspection and investigation at issue were not conducted with Daniel’s consent.

On November 7, 1978, due to the continuing illness of Judge Dixon, the instant case was reassigned to Judge Abels. After reviewing the pleadings, the transcript, Daniel’s post-hearing brief and Judge Dixon’s trial notes and after discussing the case with Judge Dixon, Judge Abels filed his decision and order on April 4, 1979. In the pertinent part of that decision, Judge Abels reaffirmed Judge Dixon’s denial of Daniel’s motion to suppress the evidence, rejecting Daniel’s contentions that Barlow’s should be applied retroactively and that the record establishes, as stated by the judge, ‘merely the absence of refusal for the inspection rather than the presence of consent for the inspection.’ With respect to the first issue, Judge Abels cited the decision of the United States Court of Appeals for the Ninth Circuit in Todd Shipyards Corp., v. Secretary, 586 F.2d 683 (9th Cir. 1978) [‘Todd Shipyards’], which held that the exclusionary rule would not be applied to suppress evidence obtained in a warrantless inspection that occurred before May 23, 1978, the date of the United States Supreme Court’s decision in Barlow’s. Finding that ‘the instant case factually coincides with the situation in Todd,’ Judge Abels concluded that ‘it necessarily follows that Judge Dixon was correct in denying respondent’s motion for the reason that Barlow’s should not be applied retroactively.’

With respect to Daniel’s second contention, that is, that it did not consent to the inspection and investigation, Judge Abels concluded that the presence or absence of consent must be determined from the ‘totality of circumstances surrounding the inspection,’ citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In his view, the circumstances in the instant case were similar to the circumstances in three cases where appellate courts concluded that OSHA inspections were consensual. Lake Butler Apparel Company v. Secretary of Labor, 519 F.2d 84 (5th Cir. 1975). Stockwell Manufacturing Company v. Usery, 536 F.2d 1306 (10th Cir. 1976). Stephenson Enterprises, Inc., v. Marshall, 578 F.2d 1021 (5th Cir. 1978).7 Accordingly, he concluded, ‘[u]nder applicable law the totality of circumstances indicate that this was a consensual inspection and the evidence resulting therefrom is not subject to suppression.’

On review, Daniel reiterates its contentions below that it did not consent to the inspection and investigation of the Iatan Project. Expanding on its previous arguments, it asserts that ‘[i]n such an inherently coercive atmosphere, valid consent could not have been given.’8 It also reiterates each of its contentions relating to the retroactive application of Barlow’s.9 In addition, Daniel addresses an issue only peripherally dealt with in the proceedings below. It argues that application of the exclusionary rule is the proper remedy in Commission proceedings for unconstitutional searches and seizures. Citing One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), Daniel contends that the exclusionary rule is applicable to cases characterized by the Supreme Court as ‘quasi-criminal’ and that the instant case ‘falls within’ this category.

On review the Secretary responds to each of Daniel’s three principal contentions. He argues that the exclusionary rule should not be applied in Commission proceedings, citing dicta in Todd Shipyards, 586 F.2d at 689, and arguing that, if the exclusionary rule were applied, the potential injury to the Act’s enforcement would outweigh the potential deterrent effects against unlawful OSHA conduct. The Secretary further argues that Daniel’s motion to suppress was correctly denied on the ground that Barlow’s is not retroactively applicable to cases arising from inspection conducted prior to the date of that decision.10

Finally, the Secretary submits that the instant inspection and investigation was ‘consensual’ and therefore not in violation of the fourth amendment because there wasn’t ‘the slightest indication of refusal, or even reluctance, on Daniel’s part to have the inspection by the OSHA compliance officer proceed.’ In response to Daniel’s assertions of coercion and duress, the Secretary argues that Critchfield’s lack of knowledge that he could deny the compliance officers entry is only one factor to be considered in determining whether consent was given and that the record does not indicate that the compliance officers’ credentials resulted in any ‘cognizable coercion.’ The Secretary concludes that ‘[w]here, as here, the OSHA compliance officer has employed no physical force or intimidation, made no assertions of an absolute right to inspect, and engaged in no course of conduct to overcome an obviously reluctant employer, consent should be found.’

III

In Meadows Industries, Inc., 79 OSAHRC ——, 7 BNA OSHC 1709, 1979 CCH OSHD ¶23,847 (No. 76–1463, 1979), a decision issued after the receipt of the parties’ briefs in the case now before us, we denied a similar motion to suppress the evidence made by the employer in that case. We noted and discussed the decisions of two courts of appeals in Todd Shipyards and Savina Home, note 10 supra, observing that, ‘[a]lthough they followed different reasoning, both courts arrived at the same result, that the exclusionary sanction for fourth amendment violations would not be applied to OSHA inspections which took place prior to the announcement of the Barlow’s decision.’ 7 BNA OSHC at 1711, 1979 CCH OSHD at p. 28,924. We further stated:

Regardless of the approach taken, we believe that their conclusion is correct. . . . Consequently, an OSHA inspection which took place prior to the date Barlow’s was announced and which was conducted in violation of the warrant requirement set out in Barlow’s cannot result in the exclusion of evidence gathered as a result of that inspection.

7 BNA OSHC 1712, 1979 CCH OSHD at p. 28,925. In addition we determined that our conclusion was consistent with the principle set forth in U.S. v. Peltier, 422 U.S. 531, 535 (1975), that the exclusionary rule is generally not applied where ‘concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the fact finding process.’ Accordingly, we held ‘that the fourth amendment principles announced in Barlow’s on May 23, 1978, are without retroactive remedy.’ 7 BNA OSHC at 1712, 1979 CCH OSHD at p. 28,925.

Our holding in Meadows Industries, Inc., supra, is dispositive of the issue that is now before us on review. However, because Daniel’s contentions regarding the retroactivity of Barlow’s were not specifically addressed in Meadows Industries, Inc., we will address those contentions in the instant case. Daniel’s initial argument is that the inspection and investigation is invalid because the statutory authority upon which its was based, section 8(a) of the Act, is ‘ineffective and void for all times’ as a result of the Barlow’s decision. We do not agree. In Barlow’s, the Court did not hold that section 8(a) of the Act is totally without force and effect. It held only that ‘the Act is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent.’11 98 S. Ct. at 1827. Indeed, in footnote 23 of its decision, the Court stated that the Secretary was not forbidden ‘from exercising the inspection authority conferred by § 657 pursuant to regulations and judicial process that satisfy the Fourth Amendment,’ adding that, ‘[o]f course, if the process obtained here, or obtained in other cases under revised regulations, would satisfy the Fourth Amendment, there would be no occasion for enjoining the inspections authorized by § 8(a).’ Accordingly, we conclude that the instant inspection and investigation was authorized by section 8(a) of the Act and was only violative of the fourth amendment principles announced in Barlow’s if it was conducted without the voluntary consent of Daniel.

Daniel’s second contention is that the retroactivity doctrine is inapplicable to the situation before us because Barlow’s did not represent a ‘new rule’ of law but merely a reaffirmation of established fourth amendment principles. In response, we note initially that a resolution of this issue is not as critical as Daniel contends because, in the words of the U.S. Court of Appeals for the Tenth Circuit, the ‘new rule requirement’ of the ‘conventional retroactivity analysis’ is de-emphasized ‘when the exclusionary rule is involved.’ Savina Home, note 10 supra, 594 F.2d at 1363 (text and n. 8).12 Furthermore, we agree with the statements of the U.S. Court of Appeals for the Ninth Circuit that OSHA compliance officers conducting inspections prior to Barlow’s were acting pursuant to apparent congressional authorization and adhering to ‘then-prevailing constitutional norms.’ Todd Shipyards, 586 F.2d at 690. Accordingly, we reject Daniel’s contention that the issue before us is not one of retroactive application of the Barlow’s decision.

Daniel next contends that Barlow’s should be retroactively applied to the instant case because OSHA compliance officers were properly charged in 1977 with knowledge that section 8(a) searches were unconstitutional unless consent were obtained and accordingly exclusion of evidence discovered during such searches is necessary to maintain judicial integrity. In Savina Home, note 10 supra, the court concluded that ‘the state of the law at the time of . . . [the inspection in that case on January 6, 1975] was not such as to charge the inspector with knowledge of the unconstitutionality of a warrantless search.’ 594 F.2d at 1364. Reviewing the developments in the law between January 6, 1975, and the Barlow’s decision, we reach the same conclusion with respect to the inspection and investigation now before us, which occurred in August and September of 1977. See Savina Home, note 10 supra, 594 F.2d at 1364 nn.10 and 11. As stated by the U.S. Court of Appeals for the Ninth Circuit:

Given such adherence to ‘then-prevailing constitutional norms’, we cannot say that enforcement of the instant citation[s] and resulting Commission [judge’s] order would contravene ‘the imperative of judicial integrity.’

Todd Shipyards, 586 F.2d at 690. Accordingly, we reject Daniel’s contention that Barlow’s should be applied retroactively to the instant case.

Daniel’s final contention relating to retroactivity is its alternative argument that Barlow’s should be applied prospectively in all cases where the hearing is held, as contrasted to cases where the inspection occurred, after the Barlow’s decision. Both Todd Shipyards, 586 F.2d at 689–690, and Savina Home, note 10 supra, 594 F.2d at 1363–1364, emphasized the importance of the deterrent effect of applying the exclusionary rule on the actions of OSHA compliance personnel as the primary factor to be considered in determining whether to give the exclusionary rule retroactive effect. Both agreed that the deterrent effect would not be enhanced by applying the exclusionary rule to pre-Barlow’s inspections. Accordingly, we conclude that prospective application of Barlow’s to cases arising from pre-Barlow’s inspections but brought to hearing after Barlow’s would not enhance the purposes of the exclusionary rule. We reject Daniel’s contention that we should adopt that holding.

In summary, we adhere to our holding in Meadows Industries, Inc., supra, in all respects. Because Judge Dixon and Judge Abels correctly anticipated that holding, we affirm their denials of Daniel’s motion to suppress the evidence. However, we do so solely on the ground ‘that the fourth amendment principles announced in Barlow’s on May 23, 1978, are without retroactive remedy.’ Meadows Industries, Inc., supra, 7 BNA OSHC at 1712, 1979 CCH OSHD at p. 28,925. Because this ruling is dispositive, we need not reach the other issues raised by the parties, that is, whether the inspection at issue was conducted with Daniel’s voluntary consent and whether the exclusionary rule is the proper remedy in Commission proceedings for violations of the fourth amendment principles announced in Barlow’s. See Todd Shipyards, 586 F.2d at 691; Savina Home, note 10 supra, 594 F.2d at 1365. Also see note 10, supra. Moveover, we conclude that it would be inappropriate to rule upon these issues in the context of this case. Because the Secretary ceased using credentials that paraphrased the language of section 8(a) when the Barlow’s decision was announced, any discussion of Daniel’s allegation that these credentials created a coercive effect would be merely academic in view of our decision not to apply the exclusionary rule retroactively. See note 3, supra. As for Daniel’s contention that there can be no consent when the employer is not aware of its rights to deny entry and to demand procurement of a search warrant and the Secretary’s contention that the exclusionary rule should not be applied in Commission proceedings, we conclude that resolution of these issues should be deferred until they are presented in a case involving a genuine controversy between the parties. Because these are significant issues in the Act’s enforcement, they should be resolved in a context where the Commission’s statements on the issue constitute holdings and not merely dicta.

Accordingly, for the reasons stated, the judge’s decision, as modified by this decision, is AFFIRMED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: MAR 26, 1980

COTTINE, Commissioner, concurring:

I concur in the affirmance of the judge’s decision in this case. However, Daniel raises several significant constitutional issues that require a clarification of Commission precedent.

I

In its brief on review, Daniel contends that the inspection to its worksite violated the fourth amendment principles announced in Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), because the inspection was conducted without a warrant and without Daniel’s voluntary consent. Daniel claims that the failure of its project manager to deny entry to the OSHA inspector cannot be considered effective and voluntary consent because the project manager was not informed of his constitutional rights, the inspector’s credentials gave the manager the impression that the inspection was authorized by law, and the manager believed that a denial of entry could result in criminal prosecution, thus creating an atmosphere of duress and coercion, It also claims that the declaration of unconstitutionality in Barlow’s rendered the Act unconstitutional from the date of its enactment and thus the inspection in this case could not have been authorized by law. With respect to the issue of retroactivity, Daniel asserts that Barlow’s merely reaffirmed fourth amendment principles previously established in Camara v. Municipal Court, 387 U.S. 523 (1967) and See v. Seattle, 387 U.S. 541 (1967), and did not announce a new legal doctrine that would give rise to an inquiry regarding retroactivity. Daniel argues alternatively that under the traditional retroactivity doctrine, judicial analysis is focused on whether the law enforcement officer was aware or should have been aware that the search was violative of the fourth amendment. Accordingly, Daniel concludes that retroactive application of the exclusionary sanction is required in this case because at the time of the inspection the greatest weight of authority established the unconstitutionality of the search. Additionally, Daniel contends that even if Barlow’s is given prospective application only, it is applicable to this case because the hearing was held subsequent to the Supreme Court’s announcement of Barlow’s. Finally, Daniel argues that the exclusionary remedy is appropriately applied to OSHA inspections violative of Barlow’s principles.13

II

In Marshall v. Barlow’s, Inc., supra, the Supreme Court held that ‘the Act is unconstitutional insofar as it purports to authorize inspections without a warrant or its equivalent . . ..’ 436 U.S. at 325. The Court concluded that Barlow’s, Inc. was entitled to an injunction enjoining the Act’s enforcement to the extent that it appeared to permit warrantless inspections. Id. The Court did not adopt the District Court’s refusal to judicially impose a warrant requirement where Congress had not done so.14 Rather, the Court was careful to note that the Secretary was not forbidden ‘from exercising the inspection authority conferred by § 657 pursuant to regulations and judicial process that satisfy the Fourth Amendment.’ Id. at 325 n. 23. Accordingly, Daniel’s argument that the statute is ‘ineffective and void for all times,’ while perhaps finding support in the opinion of the Barlow’s district court, is not supported by the Supreme Court interpretation of the Act limiting section 8(a) to warrant searches when consent is refused.

III

If the inspection in this case had occurred after the May 23, 1978 issuance of the Barlow’s decision, an initial finding on the consent issue raised by Daniel would be essential to satisfy our responsibilities to adjudicate claims arising under the fourth amendment. See The Babcock and Wilcox Co. v. Marshall, No. 79–1641 (3d Cir. Nov. 16, 1979). However, this inspection took place during the period from August to September, 1977, and thus predates the Supreme Court decision in Barlow’s. Based on a review of relevant Supreme Court and courts of appeals decisions, the Commission has concluded that the exclusionary remedy for fourth amendment violations would not be retroactively applied to remedy a constitutional infringement that arose during inspections conducted prior to the Court’s decision in Barlow’s. Meadows Industries, Inc., 79 OSAHRC ___, 7 BNA OSHC 1709, 1979 CCH OSHD ¶23,847 (No. 76–1463, 1979). The focus of the retroactivity analysis by the Commission, as well as by the federal courts,15 was on the deterrent purpose to be served by application of the exclusionary rule.164 This type of analysis necessarily involves a determination of whether the government officials involved knew or reasonably should have known of the fourth amendment prohibitions to the search at the time the alleged constitutional infringement occurred. Accordingly, Daniel’s argument that Barlow’s should be applied to cases tried subsequent to its issuance even where the alleged violative inspection predated Barlow’s must be rejected.517 A distinction based on the time of trial is inconsistent with the purpose of the exclusionary rule as it relates to fourth amendment search and seizure cases.18

Furthermore, Daniel’s attempt to assign to OSHA inspectors constructive knowledge of the unconstitutionality of nonconsensual, warrantless OSHA inspections, because of several pre-Barlow’s lower court decisions,19 is without merit. As noted by the Ninth Circuit in Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683 (9th Cir. 1978), OSHA inspectors were acting pursuant to apparent congressional authorization. 586 F.2d at 690. It was not until the issuance of the Supreme Court decision in Barlow’s that this apparent statutory authorization was removed.20 Accordingly, I reject the implication in the majority opinion that the Commission will examine an inspector’s state of mind to determine whether at a particular point in time prior to Barlow’s an inspection was conducted with a good faith belief as to its legality. To the extent that the Tenth Circuit in Savina Homes Industries, Inc. v. Secretary of Labor, 594 F.2d 1358 (10th Cir. 1979) and the Commission majority in this case look to pre-Barlow’s non-binding lower court decisions to determine what an inspector knew and when he knew it, the analysis is inappropriate.

As the lead opinion notes, the credentials displayed by OSHA inspectors have been changed as a result of Barlow’s. Accordingly, I agree that any discussion of the alleged coercion caused by the presentation of pre-Barlow’s credentials would be merely academic. Similarly, it is inappropriate to hypothesize whether a pre-Barlow’s warrantless search was nonconsensual if an inspector failed to inform an employer of its right to deny entry and demand a warrant when the inspector cannot be charged with knowledge that the employer had such a right.

However, the situation is very different with respect to constitutional issues that affect substantially similar post-Barlow’s inspections and on which the parties and the public have a right to expect guidance from the Commission. With respect to Daniel’s arguments regarding the applicability of the exclusionary rule in Commission proceedings and the voluntariness of consent where an employer has not been informed of its right to deny entry to an OSHA inspector, I disagree that Commission statements on the issues would be ‘merely dicta.’ The issues have been fully briefed by the parties before a forum that is competent to decide the questions and has the statutory obligation to do so. See The Babcock & Wilcox Co. v. Marshall, supra. ‘Judicial dictum’ as opposed to ‘obiter dictum’, has an important role in administrative adjudications when the appellate forum is responsible for the orderly development of national law and policy as well as the general supervision of statutory adjudications. As one appellate court observed, “judicial dictum’ . . . constitut[es] an expression emanating from the judicial conscience and the responsibilities that go with it.’ State v. Rainer, 258 Minn. 168, 178, 103 N.W.2d 389, 396 (1960). See Chance v. Guaranty Trust Co. of New York, 164 Misc. 346, 349–50, 298 N.Y.S. 17, 22–23 (1937); General Electric Co. v. Hygrade Sylvania Corp., 61 F.Supp 476, 525 (S.D. N.Y. 1944). The issues have been joined by the parties and they should have been resolved by the Commission in this case.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 4, 1979

APPEARING ON BEHALF OF COMPLAINANT:

EUGENE F. DESHAZO, Esquire, U. S. Department of Labor, Office of the Solicitor, 911 Walnut Street, Kansas City, Missouri

APPEARING ON BEHALF OF RESPONDENT:

CARL B. CARRUTH, Esquire, and G. DANIEL ELLZEY, Esquire, Thomspon, Mann and Hutson, 3430 First National Bank Tower, Atlanta, Georgia

DECISION

Between August 31, 1977, and September 13, 1977, compliance officers of the Occupational Safety and Health Administration (OSHA) inspected a construction site in Iatan, Missouri, at which respondent was engaged in the construction of an electric generating plant. Subsequently, four citations were issued to respondent under the provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et. seq., which charged respondent with various violations of standards promulgated under the Act. Proposed penalties totaled $13,760. Respondent contested all of the alleged violations and penalties. After complaint and answer were filed, the case was assigned by the Commission to Review Commission Judge Paul E. Dixon. Judge Dixon held an evidentiary hearing June 6–8, 1978, and then gave the parties an opportunity to file briefs. Complainant declined to file a brief, and the matter has been fully briefed by respondent.

Because of the illness of Judge Dixon, the Commission reassigned the matter to me on November 7, 1978. I have completely reviewed the various pleadings, the transcript, and respondent’s brief. I have reviewed Judge Dixon’s trial notes, and have discussed the matter with him. I now find, for the reasons later stated, that some of the citations should be affirmed and some should be vacated.

There are several preliminary matters which must be clarified. On June 6, 1978, respondent moved to suppress all evidence obtained as a result of the inspection, alleging the respondent was deprived of its rights under the Fourth Amendment to the Constitution of the United States in that the inspection was conducted without a lawful warrant, without probable cause, and without respondent’s consent. Respondent relied on Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) where the Supreme Court in effect held that the Act was unconstitutional insofar as it purports to authorize inspections over the objection of the employer without a warrant or its equivalent, and that the employer was entitled to an injunction enjoining the Act’s enforcement to that extent. After hearing evidence and oral argument, Judge Dixon overruled respondent’s motion on the grounds that he would not apply the ruling in Barlow’s retroactively (Tr. 73). In its post-hearing brief, respondent strenuously renews and argues its motion to suppress. It contends that the holding in Barlow’s should be applied retroactively, and that the evidence resulting from the inspection should be suppressed in the absence of a valid warrant, since there was no consent given for the inspection. It argues that the record shows merely the absence of refusal for the inspection rather than the presence of consent for the inspection.

With regard to the retroactive effect of the ruling in Barlow’s, this point has been addressed by the 9th Circuit in Todd Shipyards Corp., v. Secretary of Labor, 586 F.2d 683 (9th Cir., 1978). There, as here, a warrantless inspection resulted in the issuance of citations before May 23, 1978, the date of the Supreme Court decision in Barlow’s. Todd argued that Barlow’s should be applied retroactively. In its November 17, 1978, decision the Court held that in a situation such as this the deterrent effects of the exclusionary rule would not be enhanced by its application to an OSHA search that may have exceeded the Barlow’s limits, but which took place before the Barlow’s decision. The Court also noted that in effecting the warrantless search of Todd’s shipyard OSHA inspectors acted pursuant to apparent Congressional authorization which had not yet been declared unconstitutional by a court of competent jurisdiction. Given such adherence to the then prevailing Constitutional norms, the Court could not say that enforcement of the citation and resulting Commission order would contravene the imperative of judicial integrity. Since the instant case factually coincides with the situation in Todd, it necessarily follows that Judge Dixon was correct in denying respondent’s motion for the reason that Barlow’s should not be applied retroactively.

As to its second contention, respondent states that the testimony of William H. Jackson, the compliance officer, and W. T. Critchfield, respondent’s project manager, indicate mere acquiescence in and absence of refusal for the inspection, rather than consent to the inspection. Jackson testified that when he arrived at the project he showed his credentials to Critchfield, gave him a copy of the complaint giving rise to the inspection, informed him that he was there for the purpose of investigating the complaint, did not state that he had a right to make the inspection, was not informed by Critchfield or any of respondent’s employees that he could not make the inspection, was referred by Critchfield to Peter Hamel, the construction manager, and spent most of his time thereafter with Hamel during the course of the inspection. He did not advise Critchfield that he had a right to refuse entry, or a right to require Jackson to get a warrant. Critchfield testified that he knew Jackson from prior inspections, understood that Jackson was there to make an inspection, and at no time did Jackson tell him that he had no choice but to allow the inspection. There was no question in Critchfield’s mind that Jackson knew he had the authority to make the inspection. He didn’t realize that it was necessary for Jackson to have a search warrant. He knew that a compliance officer’s credentials indicate that the officer has the right to inspect a construction site without delay. Critchfield did not know that he had the right to refuse entry, was under the impression that he could be prosecuted for refusing entry, and had never been advised by anyone prior to the inspection that he had a right to refuse entry. The compliance officer’s credentials fortified Critchfield’s general understanding that he could not interfere with a Government Agent in the performance of his duties. He looked upon the credentials as if they were a search warrant.

Respondent cites many cases in support of its contention, none of which are directly in point. The presence or absence of consent shall be determined from the totality of circumstances surrounding the inspection. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The circumstances surrounding this inspection show that the compliance officer presented his credentials, informed Critchfield of the purpose of his visit, and Critchfield then referred him to Hamel who accompanied him through the worksite. All of the alleged violations later cited as being discovered during the walking tour were in plain, obvious view. Critchfield had a right of refusal under the Act, but did not exercise such right. Strikingly similar circumstances surrounded an inspection under the Act in Lake Butler Apparel Company v. Secretary of Labor, 519 F.2d 84 (5th Cir., 1975). The Court there considered the total circumstances of the inspection and found it to be purely consensual. Under similar circumstances the 10th Circuit also found no unlawful or illegal search and seizure in an inspection under the Act in Stockwell Manufacturing Company v. Usery, 536 F.2d 1306 (10th Cir., 1976). Respondent infers that voluntary consent was not given here because of the effect the compliance officer’s credentials had on Critchfield in that he considered the credentials to be like a warrant. An analogous claim that a plant manager might have been ‘bedazzled’ by an OSHA inspector’s credentials did not impress the 5th Circuit in Stephenson Enterprises Inc., v. Marshall, 578 F.2d 1021 (5th Cir., 1978). Under applicable law the totality of circumstances indicate that this was a consensual inspection and the evidence resulting therefrom is not subject to suppression.

Almost all of the items contained in the four citations issued to respondent are alleged to be violations of various standards contained in 29 CFR 1926. At the hearing respondent moved to dismiss the citations on the grounds that the 1926 standards were improperly promulgated, and therefore of no effect. Judge Dixon denied the motion, but respondent indicated that the matter would be developed more fully in the post-hearing brief. Respondent has now fully briefed this question, contending that the proper procedure was not followed by the Secretary of Labor in adopting and promulgating established federal standards under the Act. An identical contention was made by this same respondent in Daniel Construction Company, 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976–1977 CCH OSHD ¶21,521 (Nos. 7734 and 7672, 1977). The Commission there held that the underlying established federal standard was properly promulgated so that the occupational safety and health standard based on that federal standard was properly adopted under section 6(a) of the Act. An identical contention was advanced by petitioner in National Industrial Constructors, Inc., v. Occupational Safety and Health Review Commission, 583 F.2d 1048 (8th Cir., 1978). The Court there held that the claim of improper promulgation is a procedural claim and that a challenge to the validity of an OSHA regulation based solely upon the Secretary’s failure to comply with the procedural requirements of the Administrative Procedure Act, Occupational Safety and Health Act, or any other applicable statute, may only be raised in a pre-enforcement proceeding instituted pursuant to section 6(f) of the Act within 60 days from the time the regulation becomes effective. The Court further stated that such attacks may not be raised in an enforcement proceeding. Under either view, it is readily apparent that Judge Dixon was correct in his denial of respondent’s motion.

In the inspection of respondent’s worksite, Jackson was accompanied by Jim Woods, another compliance officer. During the inspection Jackson made notes of some of the conditions that he observed and told Woods to make notes on other conditions that Jackson observed. Woods did not testify, and when Jackson testified as to the alleged violations he relied extensively on notes that he had made during the inspection, as well as on the notes that Woods had made at his direction. Jackson admitted that he had not verified the correctness of Woods’ notes while the events were fresh in his mind. Respondent moved to strike as hearsay those portions of Jackson’s testimony based on the notes that Woods had taken. Respondent’s motion was overruled, and it again strenuously argues that such testimony should be stricken.

Rule 72 of the Commission’s Rules of Procedure provides that, insofar as practicable, hearings before a Commission Judge shall be governed by the rules of evidence applicable in the United States District Courts. Rule 802 of the Federal Rules of Evidence provides that hearsay evidence is not admissible except as provided by the rules, or by other rules prescribed by the Supreme Court, or by an Act of Congress (Fed. Rules Evid., Rule 802, 28 USC). Rule 803 lists the hearsay exceptions, and respondent contends that the only possible basis for the admission of the testimony in question would be the exception found in Rule 803(5), dealing with recorded recollection. This exception provides that a memorandum concerning a matter about which the witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately may be admitted if it is shown to have been made or adopted by the witness when the matter was fresh in his memory and shown to reflect that knowledge correctly. Respondent urges that the requirements of this exception have not been met since the notes in question were not made by Jackson, and had not been adopted by him while the matter was still fresh in his memory. In advancing this contention respondent overlooks the hearsay exception found in Rule 803(8) which provides 1) that matters observed pursuant to duty imposed by law as to which matters there was a duty to report are not excluded, and 2) in civil actions and proceedings factual findings resulting from an investigation made pursuant to authority granted by law are not excluded. Under either provision, the notes made by Woods fall within this exception. Section 8(a) of the Act authorizes the Secretary of Labor to inspect and investigate worksites, and section 8(g) directs the Secretary to prescribe rules and regulations dealing with the inspection of an employer’s establishment. Pursuant to the statutory mandate, the Secretary has promulgated regulations governing the conduct of inspections by a compliance officer (29 CFR Part 1903). He has also issued rules to be followed by a compliance officer in connection with an inspection (Occupational Safety and Health Field Operations Manual, Chapter III–C). Pursuant to these regulations and rules, both Jackson and Woods had a duty imposed by law to report the matters observed by them. It is obvious that the factual findings made by them resulted from an investigation made pursuant to authority granted by law. Accordingly, the notes made by Woods would fall within the exceptions to the hearsay rule. In a similar situation concerning a matter arising under the Fair Labor Standards Act, it has been held that a diary sheet of an investigator made in the regular course of his visits as a Government investigator would be competent evidence U.S. v. Bayside Novelty Co., Inc., et al., 275 F.2d 207 (2nd Cir., 1960, Certiorari denied, 364 U.S. 843). It necessarily follows that no error was committed in allowing Jackson to testify using as a basis the notes prepared by Woods at his direction.

Citation 1 charges respondent with a serious violation of section 5(a)(1) of the Act, the general duty clause, which provides that each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to the employee. Complainant alleges that such employment and place of employment were not provided in that employees working below the steel erection and/or bolting-up operation being performed in the upper levels of the west wings of the main power plant structure were not adequately protected from falling materials.

The power plant was in the steel erection stage of construction at the time the inspection was made. Complainant’s evidence as to the alleged violation consists of the testimony of Jackson and Arthur Hawkins Jr., as well as photographs taken by Jackson. Jackson testified as to conditions that existed at several levels of the steel framework in the south side of the west wing of the structure. He made general observations as to considerable activity being carried on by respondent’s employee at these levels, consisting of moving back and forth over and through the structure in areas where there was no temporary or permanent flooring. He intimated that employees working below the level of this activity would be subject to the possibility of being struck by various items of equipment or tools which would fall from the upper levels. He particularized his testimony by referring to several photographs taken by him in the west wing of the structure as being the area in question. He identified exhibit G–3 as a photograph of an area at level 885 which had inadequate protection from falling materials. Exhibit G–4 was identified as being of the same general area and exhibit G–5 as being taken at level 917. Jackson could not specifically state that employees were working at levels above or below level 917 at the time his observations were made and the pictures taken. He did specifically state that exhibit G–5 depicts several employees working at that level and also depicts an employee working at a lower level. Close inspection of the exhibit reveals that what is denominated by Jackson as an employee working at the lower level is actually a gas cylinder tied to an upright column.

Hawkins was the union shop steward on the job and accompanied Jackson on the inspection. He testified that at the time of the inspection he did observe employees carrying or working with materials at elevations above other employees on the job. He did not testify, nor did Mr. Jackson, as to the absence of temporary or permanent flooring in the areas where these employees were working.

Respondent contends that the evidence does not show a recognized hazard within the meaning of section 5(a)(1) of the Act. Henry T. Thorp, respondent’s safety engineer, testified that respondent protected its employees from overhead falling objects by the use of temporary flooring and hard hats, these procedures being recognized by the construction industry and by respondent as adequate to protect employees from such objects. It can reasonably be inferred from this testimony that the construction industry and respondent does recognize falling objects as being a hazard, since the industry and respondent finds it necessary to take adequate steps to protect employees from such objects. Thorp further testified that temporary floors were provided directly below the level on which any work was being performed at the time and place in question. His testimony is specific and direct on this point, and exhibits G–1, G–3, and G–4 show temporary flooring in place. It cannot be determined from exhibit G–5 whether temporary flooring is in place but, as previously noted, the ‘employee’ at a lower level is actually a gas cylinder.

The generalized and nonspecific nature of the evidence adduced by complainant as opposed to the specific and direct evidence shown by the exhibits and adduced by respondent does not provide a basis for a finding that complainant has shown, by a preponderance of the credible evidence, a lack of adequate protection of respondent’s employees from falling material. Since this burden has not been met citation 1 cannot be affirmed.

Citation 2, item 1, charges respondent with a willful violation of the general duty clause in that bolting or welding of steel beams in the west wings was unfinished at heights exceeding 48 feet above the uppermost permanently secured floor at level 841 and above, thereby exposing employees to the hazard of structural collapse. The complaint alleged that this violation occurred in a non-tiered portion of the structure, but during the hearing the complaint was amended to alternatively plead a violation of the standard found at 29 CFR 1926.750(a)(2). This standard applies to skeleton steel construction in tiered buildings and provides that at no time shall there be more than 4 floors or 48 feet of unfinished bolting or welding above the foundation or uppermost permanently secured floor. Under either the tiered or non-tiered charge, the violative condition is the unfinished bolting of structural steel members. My view of the evidence leads to the conclusion that it does not show unfinished bolting or the existence of a hazard of structural collapse.

In building the power plant structure, respondent was following an erection plan. Respondent was in the process of steel structural erection when the inspection was made. Two stages are involved in the erection process. In the first stage the various structural steel members forming the structure are bolted together for erection purposes only. This is accomplished by using a minimum of two bolts for each connection. The second stage consists of adding more bolts to the various joints so that the structure will be bolted, not only for erection purposes, but also for load purposes. Except for several isolated instances of nonalignment caused by misfabrication of the structural members, those areas of the structure inspected by Jackson and which are the subject of this item were fully bolted for erection purposes but not fully bolted for load purposes. Jackson and Hawkins were of the opinion that weather conditions or a stong wind could cause the structure to collapse. Jackson was further of the opinion that if the heavy steel being handled by a crane in the vicinity were to strike the framework it would cause the vertical columns to distort out of their normal plane and to collapse.

Although Jackson was of the opinion that the bolting was unfinished with only two bolts in place at the various joints, the record is clear that at the locations in question the process of erection was still being carried out rather than the placing of any load on the structure. Hawkins stated that with a minimum of two bolts in place the structure would be fully bolted for erection purposes. Complainant presented no evidence as to the structural integrity involved in such a situation and by contrast respondent presented specific and detailed evidence that with the structure fully bolted for erection purposes it was safe in winds of up to 130 miles per hour and was capable of supporting approximately 60 thousand tons, whereas, at the time of inspection it was supporting only its own weight, namely, 6 thousand tons. An overall view of the evidence leads to the conclusion that the more probative and credible evidence of record shows that the bolting was not unfinished and in any event there was no hazard of collapse. Accordingly, complainant has not met his burden of proof and item 1 of citation 2 cannot be affirmed.

Item 2 of citation 2 alleges that respondent willfully violated standards found at 29 CFR 1926.750(b)(2)(i) or .750(b)(1)(ii) or .105(a). The first of these standards provides that during skeleton steel erection a tightly planked and substantial floor shall be maintained within 2 stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which any work is being performed. The second standard provides that on 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 2 stories or 25 feet. The third standard mandates the provision of safety nets when workplaces are more than 25 feet above the ground, water surface or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts are impracticable. Complainant alleges that one or more of these standards were violated in four specific areas of the structure.

Respondent attacks the present language of 29 CFR 1926.750(b)(2)(i). As originally promulgated the standard required that ‘a tight and substantial floor shall be maintained within 2 stories or 25 feet, whichever is less, below and directly under that portion of each tier of beams on which bolting, riveting, welding, or painting is being done.’ Following prescribed procedure, on January 11, 1974, the Secretary issued a notice of proposed rulemaking to amend this standard to require that the floor be maintained within 2 stores or 30 feet rather than 2 stories or 25 feet, the reason being to allow for current designs in steel erection which involve the use of a greater depth in structural beam members. On July 2, 1974, the Secretary caused to be published in the Federal Register (39 FR 24360) a notice announcing the adoption of the current standard. The notice reviewed the comments which had been received from interested persons, the wording which should be used in the standard and the reasons for nonacceptance of proposed objections to its adoption. The present standard, as adopted, in addition to changing the distance within which the floor must be maintained also makes other changes, one of which is to substitute the phrase ‘on which work is being performed’ for the phrase ‘on which bolting, riveting, welding or painting is being done.’ Respondent contends that this revision is void in that the notice of proposed rulemaking contemplated only a change in the 25 foot distance requirement and accordingly, any other change would be of no force and effect. It further states that the evidence is undisputed that no bolting, riveting, welding or painting was being done at or above any of the locations referred to in this item and consequently no violation can be established.

In modifying or amending a standard the Secretary is bound by the provisions of section 6(b) of the Act (29 U.S.C. § 655(b)), which specifies the procedural steps to be followed. These steps include publication of the proposed modification in the Federal Register, opportunity for interested persons to comment or object, an opportunity for a hearing and finally, issuance of a rule modifying the standard. The language change complained of by respondent was in response to comments received by the Secretary pursuant to this statutory scheme. As stated by the Secretary in the July 2, 1974, promulgation ‘some comments state that the reference in the proposal to bolting, riveting, welding or painting operations unnecessarily excludes all other operations or work activities involved in skeleton steel erection.’ . . . ‘In summary, the comments appear to agree that employees engaged in skeleton steel erection should be protected by the standard regardless of the equipment being used or the work activity involved.’ The Secretary found that the contention that the coverage and application of the standard was too restrictive had merit, and agreed that the falling hazards to employees engaged in steel erection were similar regardless of the work activity being performed. Accordingly, the standard as promulgated referred to the maintenance of the required floor below and directly under that portion of each tier of beams ‘on which any work is being performed’ rather than restricting such maintenance to an area below and directly under that portion of each tier of beams ‘on which bolting, riveting, welding or painting is being done.’ It is apparent that the Secretary’s initial notice generated comment which was duly considered by the Secretary and is reflected in the final modification of the standard so as to make it less restrictive in nature, thereby enhancing the protection against hazards occasioned by employees in steel erection. This is not such a radical departure from the proposed modification as to come within the purview of the cases cited and relied upon by respondent. The requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because a rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions. GAF Corp., v. Occupational Safety and Health Review Commission, et. al., 561 F.2d 913 (D. C. Cir., 1977). See also International Harvester Company v. Ruckelshaus, 478 F.2d 615 (D. C. Cir., 1973) wherein the court noted that a contrary rule would lead to the absurdity that in rulemaking under the Administrative Procedure Act the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary. The standard has been validly modified and applies to the case at hand.

The standard requires that a tightly planked and substantial floor be maintained within 2 stories or 30 feet, whichever is less, below and directly under that portion of each tier of beams on which work is being performed. Although very broad and general statements were made by Jackson as to various types of work being performed throughout the structure, his specific testimony as to this item is restricted to employees using steel beams as walkways in various portions of the structure. Respondent contends that an employee using a beam as a walkway is not performing any work and therefore the standard does not apply. Jackson testified as to employees walking the beams in the areas in question and his testimony was substantiated by that of Thorp, respondent’s safety engineer. Apparently, these employees were walking from one location to another in the structure to do some work at the new location in the performance of their duties. Assuming that the employees were not actually performing any work while traversing the beam, had left one ‘workplace’ in the structure and were in the process of gaining access to another ‘workplace’, this would be an ordinary and necessary activity of their employment and they would come within the purview of the standard. Robert E. Lee Plumbers, Inc., 75 OSAHRC 56/C2, 3 BNA OSHC 1150, 1974–1975 CCH OSHD ¶19,594 (No. 2431, 1975); Gelco Builders, Inc., 77 OSAHRC 203/B14, 6 BNA OSHC 1104, 1977–1978 CCH OSHD ¶22,353 (No. 14505, 1977). With respect to the requisite floor within 2 stories or 30 feet below and directly under these employees, Jackson testified that there was planking 12 to 14 feet below but that it was randomly placed and contained open holes, as shown in exhibit G–10. This exhibit does reveal planking as described by Jackson and the absence of ‘a tightly planked and substantial floor’. The evidence does establish a violation of the standard.

Complainant also alleged that respondent ‘and/or’ violated two other standards at the locations in question. If complainant intends to allege these other violations cumulatively he should have made that clear by refraining to use the disjunctive. If complainant intended to allege these violations alternatively he should have made that clear by refraining to use the conjunctive. In any event, with my finding that 29 CFR 1926.750(b)(2)(i) has been violated, it is not necessary for me to further divine complaint’s intent and I decline to do so.

Citation 3 contains two items alleging a repeat violation of several standards and proposes a penalty of $200 for each item. During the course of the hearing compliant amended this citation to allege a nonserious violation as to both items with no penalty proposed for item 1 and retaining the $200 proposed penalty for item 2.

Citation 3, item 1, alleges a violation of 29 CFR 1926.303(c) (2) which provides in pertinent part that the work rests of floor and bench mounted grinders shall be rigidly supported, readily adjustable and shall be kept at a distance not to exceed 1/8 inch from the surface of the wheel. It is charged that the work rests on a certain Milwaukee bench mounted grinder in the electrical shop were kept at a distance in excess of 1/8 inch from the surface of the wheel. Although one of respondent’s witnesses testified with regard to a Milwaukee bench grinder in the maintenance shop, no evidence was adduced by respondent with regard to the Milwaukee bench grinder in the electrical shop, as to which Jackson testified that the guard was in excess of 1/8 inch from the periphery of the wheel. He gave no testimony as to whether or not this grinder was provided with a work rest, nor was there any testimony as to the distance between the work rest, if provided, and the surface of the wheel. Since no evidence was adduced in support of this charge it must be vacated.

Citation 3, item 2, alleges a violation of 29 CFR 1926.500(d)(1) in that at level 895 of the main power plant structure a fiber type rope was employed as a guardrail, and that at levels 841 and 917 of the main power plant structure, wire rope was employed as guardrails and was not installed or maintained in a manner to prevent minimum deflection. The standard in question provides as pertinent that 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 1926.500. The railing shall be on all open sides except where there is entrance to a ramp, stairway, or fixed ladder and 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. Paragraph f lists the specifications for standard wood, pipe or structural steel railings and provides in part that other types and sizes of railing construction are acceptable provided they have a smooth surface top rail at a height of approximately 42 inches, a strength to withstand at least the minimum requirement of 200 pounds top rail pressure with a minimum of deflection, and protection between the top rail and the surface equivalent at least to that afforded by a standard intermediate rail.

Complainant adduced evidence that at level 895 manila rope approximately 3/8 inch to 1/2 inch in diameter was used as guardrails, which would not provide support to an individual who might trip or fall against it and try to use it as a means of safeguarding himself from falling. No further evidence was presented by complainant with respect to this alleged violation. In contrast Thorp, who accompanied the compliance officer on the inspection, testified that exhibit R–9, one-inch diameter manila rope, was the type of rope use in this guardrail. There was a top rail, a middle rail and a toeboard. The rope was securely tied, was approximately 6 to 12 inches from the edge of the open-sided platform, and in his opinion as a safety engineer was equivalent to a standard guardrailing, presented no hazard in its use, and would prevent employees from falling off the open-sided platform. Thorp’s specific detailed testimony is more credible than the generalized nonspecific testimony of Jackson and adequately demonstrates that the guardrail in question was equivalent to a standard railing. The more credible evidence does not show a violation of the standard.

With respect to the wire rope guardrail charge, complainant presented no evidence as to the alleged violation at level 917. Evidence was adduced as to the alleged violation at level 841. It is charged that the wire rope employed as a guardrail was not installed and maintained in a manner to prevent minimum deflection. Jackson did not testify as to the distance of the guardrail from the edge of the platform and stated that there was enough slack in the guardrail to deflect it from its plane for approximately 6 to 8 inches. Jackson gave no specific testimony as to the construction of the guardrail other than to state that it was being used as a tie off for a piece of manila rope from the upper part of the structure. Thorp testified in detail that the wire rope guardrail consisted of a top rail, midrail and toeboard. He further stated that a metal angle iron used as an upright and welded to the floor was bent at about a 30 degree angle from vertical resulting in a 4 to 6 inch deflection. The lowest point of the top rail was 38 inches which in his opinion presented no hazard with regard to an employee falling over the top of the rail. The guardrail was approximately 6 inches from the edge of the platform and the deflection flection presented no hazard of falling over the side. Again Thorp’s specific detailed testimony is more credible than that of Jackson. Technically the guardrail would be equivalent to a standard railing except that it was 4 inches less in height than required by the standard. The deflection would be minimal and would not in and of itself create a fall hazard. Under all of these circumstances the violation should be classed as de minimis and will be so denominated.

Citation 4 alleges that respondent violated various standards promulgated under the Act. Twenty-two instances of violation are charged under items 1 through 21 of the citation.

Item 1 alleges a violation of 29 CFR 1910.244(b) which provides in part that a blast cleaning nozzle shall be equipped with an operating valve which must be held open manually. It is charged that the valve on a blast cleaning nozzle in the new water management building was inoperative. Undisputed and uncontradicted evidence shows that the valve, commonly known as a ‘dead man switch’, had become clogged and was inoperative. This was hazardous in that the operator, if he had to release it suddenly, would be struck with the whipping hose. Respondent contends that since the nozzle had been equipped with an operating valve its duty under the standard had been fulfilled, since the standard does not require maintenance after the nozzle was originally equipped with the valve. This defense must fail the standard requires that the nozzle be equipped with an operating valve which must be held open manually, placing a continuing duty on respondent for the valve to be in proper operating condition. Respondent further defends by showing that an employee had been placed at the cutoff valve for the air supply in view of the clogged condition of the nozzle, so that if an emergency arose this employee could shut off the air supply within a second. This defense must fail since, under this arrangement, the cessation of the air supply would not be instantaneous as it would with a properly operating dead man switch. Under such an arrangement more than enough time would exist for the hose to whip and injure the operator in case of an emergency. The violation is established.

Item 2 charges respondent with a violation of 29 CFR 1926. 21(b)(2) which provides that the employer shall instruct each employee in the recognition and of unsafe conditions and in the regulations applicable to his work environment, to control or eliminate any hazards or other exposure to illness or injury. Complainant alleges that at random locations on the floors and walking surfaces at all levels of the main power plant there were hoses, stock piles of planking and floor grates, incomplete installation of floor grates, small piles of steel bolts, and other related sundry items which created unsafe walking and tripping conditions. Complainant adduced evidence that throughout the entire establishment there were air lines and electric welding cables lying on the floor, causing a tripping hazard for the employees. Respondent’s safety engineer admitted that there were some remote or isolated locations that needed housekeeping attention. Respondent issued to each newly hired employee a construction safety handbook (exhibit R–10) during the safety orientation program given to all new employees. Additionally, there are weekly ‘tool box safety meetings’ at which various safety topics were discussed, including housekeeping and orderliness. Respondent contends that these procedures show adequate instruction of the employees as required by the standard. Obviously the methods used by respondent are not adequate as evidenced by the condition found by the compliance officer and at least partially substantiated by the safety engineer. The standard envisions a level of instruction of both an initial and continuing nature which will bring about the desired result. It is no defense for an employer to institute a method of instruction and then go forward with no further concern as to whether or not the instruction is effective. Where, as here, the instruction is not effective, a violation of the standard has been established.

Under item 3, complainant alleges that a gasoline refueling station was not protected against collision damage in violation of 29 CFR 1926.152(e)(4), which provides that flammable and combustible liquid dispensing units shall be protected against collision damage. Complainant’s evidence as to this item shows that there were two ‘liquid dispensing pumps’ mounted on the south side of a main warehouse, adjacent to a main thoroughfare where heavy equipment and trucks passed. Equipment was serviced at the pumps throughout the day, there was constant traffic to and from and along the adjacent roadway, and no protection was provided to prevent the pumps being accidentally struck by a vehicle or a piece of equipment passing through the area. Respondent adduced no evidence with regard to this item. As noted, the standard in question deals with flammable and combustible liquids and no evidence was adduced by complainant as to the nature of the liquid dispensed by the pumps. Counsel for complainant refers to the pumps as a gasoline refueling station, but the compliance officer, who was the only witness who testified in this respect, does not denominate the nature of the liquid dispensed by the pumps. Accordingly, complainant has failed to sustain his burden of proof and a violation of this standard cannot be affirmed.

At a certain location on the worksite, an air line from a portable compressor to a pneumatic jack hammer and the third outlet of a four position manifold both were equipped with hoses exceeding 1/2 inch inside diameter. It is alleged in citation 4 that these installations violated 29 CFR 1926.302(b)(7), which provides that all such hoses shall have a safety device at the source of supply or branch line to reduce pressure in case of hose failure. The record shows that the air hose for the jack hammer had no safety device, and that the safety device had been removed from the outlet and was lying on the floor. The safety device for the manifold outlet was replaced the same day. Both of these systems were in use at the time of the inspection. No management official or employee would have any reason to remove these devices. Page 4 of respondent’s construction safety handbook (exhibit R–10) directs employees not to alter tools or guards and stresses that tools and equipment must be in good condition and maintained in such order. There is no evidence as to the length of time the safety devices had been off the equipment in question prior to the inspection. There is no evidence that anyone in a managerial or supervisory capacity for respondent had actual knowledge of the absence of these safety devices, nor is there any evidence from which it could reasonably be inferred that constructive knowledge of their absence should be imputed to respondent. Since there is no evidence from which a finding can be made that respondent knew or should have known of this violative condition, this item of the citation cannot be affirmed.

Item 5 alleges that a Black and Decker bench grinder in the fabrication ship and a Milwaukee bench grinder in the maintenance shop were in violation of 29 CFR 1926.303(b) in that the distance between the periphery of the abrasive wheel and the adjustable tongue or the end of the safety guard peripheral member at the top exceeded 1/4 inch. Jackson testified that the Black and Decker bench grinder was not provided with an adjustable tongue guard at the top, that the grinder was plugged in, and the wheel had shown considerable wear. He further testified that the tongue guard has to be adjustable to compensate for the wheel being ground down to a smaller size. Respondent adduced no evidence as to the Black and Decker grinder and consequently Jackson’s testimony as to the absence of a guard is uncontradicted. Obviously if the guard is absent, the opening will exceed 1/4 inch and a violation has been established. With respect to the Milwaukee bench grinder, Jackson testified that it was plugged in and showed signs of use. He further testified that the guard would have to be adjustable, but he offered no testimony as to the distance between the abrasive wheel periphery and the tongue or the end of the guard. No other witness supplied testimony in this respect, and accordingly the record does not contain the evidence necessary for a finding of a violation with regard to the Milwaukee bench grinder.

Item 6a alleges a violation of 29 CFR 1926.304(f), which provides that all woodworking tools and machinery shall meet applicable requirements of American National Standards Institute, 01.1–1961, Safety Code for Woodworking Machinery. It is charged that the sides of the lower exposed portion of the blade of a DeWalt radial saw in the carpenter shop were not guarded to the full diameter of the blade by a device that would automatically adjust itself to the thickness of the stock and would remain in contact with the material being cut, in that the ring guard that was provided was secured in an up position. The record shows that the saw was not in use at the time of the inspection, that a guard was in place, and that a wedge of wood was holding the guard in an upright position. The piece of wood was removed and the guard came back into position. Respondent contends that the guard was of the type required by the standard and that when the piece of wood that had remained on the table under the guard, apparently after the last use of the saw, was removed the guard operated just as it was supposed to. The evidence substantiates this contention and the violation has not been established.

Item 6b alleges that the radial saw used for ripping was not provided with non-kickback fingers in violation of 29 CFR 1926.304(f) which provides, in pertinent part, that such a saw shall be provided with such fingers so as to oppose the thrust or tendency of the saw to pick up the material or to throw it back toward the operator. Respondent does not deny that the non-kickback fingers provided on the saw were frozen and not flexible enough to be used as testified to by Jackson. Respondent does content that there is no evidence that the saw was used for ripping, as specified in the standard, and that in any event the standard only requires provision of the fingers and does not require that they be maintained. Jackson did testify that the saw would be used in a ‘rip situation’ which is sufficient to bring the saw within the standard. With respect to the balance of respondent’s contention, the standard requires the fingers to be provided so as to oppose the thrust or tendency of the saw to pick up the material or throw it back toward the operator. In the inflexible and frozen condition, the fingers were not so provided and were violative of the terms of the standard.

At the worksite five compressed gas cylinders were not secured in an upright position and were lying on the ground at several locations. The employees were working within 120 feet of the cylinders. It is respondent’s policy and practice to keep the cylinders in an upright secured position, both in storage and in use, by utilizing baskets and racks. Complainant alleges in item 7 that the failure to secure these cylinders in an upright position violated 29 CFR 1926.350(a)(9), which provides that, except for short periods of time while cylinders are actually being hosited or carried, they shall be secured in an upright position at all times. There is no evidence that these cylinders were being hoisted or carried at the time of the inspection and under the standard this is the only time during which they can be in anything but an upright secured position. The record substantiates a violation of the standard.

In order to test and certify new employees hired as welders, respondent maintained a welding test building at the worksite. There was a slight break or crack in the covering of a welding cable going into one of the test booths in the building. This break was not visible but was found by the compliance officer in the course of a hand-over-hand inspection of the cable. The cable had to be ‘broken back’ before the conductor inside could be seen. In item 8 complainant alleges that this condition violated 29 CFR 1926.351(b)(2) which provides that only welding cable free from repair or splices for a minimum distance of 10 feet from the cable end to which the electrodes holders are connected shall be used. The record contains no evidence of repair or splices and accordingly this standard has not been violated.

Item 9 charges a violation of 29 CFR 1926.351(c)(5) which provides in pertinent part that the frame of all arc welding and cutting machines shall be grounded, either through a third wire in the cable containing the circuit conductor or through a separate wire which is grounded at the source of the current. Six arc welding machines were mounted in a rack and it was determined by Jackson and admitted by respondent that the rack was not grounded. Jackson did not determine whether or not the frames of the individual machines were grounded, but inspected and checked only the rack itself. He does not recall checking the circuits of the individual machines. Thorp testified directly and positively that the frames of the individual welders wre grounded through a third wire in the cable to each individual machine. In view of the direct and positive testimony to this effect, I find that individual machines were grounded as provided by the standard and that the standard was not violated.

Item 10 is concerned with a standard electrical handy box which has holes in it and was mounted at ground level subject to weather conditions. It was in a position where employees could step on it and be subjected to electrical shock. It was located immediately outside the safety office in the area in which employees parked their automobiles. The standard involved is at 29 CFR 1926.400(a), which adopts the National Electrical Code NFPA 70–1971 and provides that all electrical work and installation shall be in accordance with the provisions of that code. Section 370–5 of the code provides that electrical boxes and fittings shall be so placed or equipped as to prevent the entry or accumulation of moisture within the fitting or box. It is apparent that the location and mounting of the box, which had holes in it, would not prevent the entry or accumulation of moisture within the box. Consequently it was in violation of the standard. It was located in an area where the employees parked their automobiles immediately outside the safety office. Employees would have access to this hazardous condition and would be subject to possible electrical shock therefrom.

29 CFR 1926.401(j)(3) provides that working spaces, walkways and similar locations shall be kept clear of temporary lighting cords so as not to create a hazard to employees. Item 11 alleges that at all levels of the main power plant structure such cords were not kept clear of employee working or walking areas. On a construction project a support is normally erected so that the temporary lighting cords are not lying on the ground. At several locations on this project the cords were strung out all over the floor of areas in which employees were working. It is apparent that this situation would create a hazard to employees and is violative of the standard.

29 CFR 1926.450(a)(2) proscribes the use of ladders with broken or missing rungs, broken or split side rails or other faulty or defective construction. It further provides that when ladders with such defects are discovered they shall be immediately withdrawn from service. Item 12 alleges that at level 939 of the main power plant structure a ladder with a broken right side rail was in use by employees, and at level 908 of the structure a ladder with a missing top rung was in use by the employees. With regard to the ladder at level 939 with the broken side rail, the compliance officer testified that this ladder was in service and had been used by the inspection party in arriving at that level, as well as being used by several employees. The side rail was cracked just below the top rung, thereby subjecting the ladder to collapse. Respondent presented evidence to the effect that the ladder with a cracked side rail was at a different level, was not in service and that it was lying down leaning up against a column and had been taken out of use. Exhibit G–12 is a polaroid photograph of the ladder referred to by the compliance officer. This photograph was taken at the time of the inspection and immediately after it was removed from the camera the compliance officer noted on the back thereof that the ladder had a broken side rail. This notation, made immediately after the violative condition was seen, substantiates the compliance officer’s testimony and is of great probative value in establishing that the ladder in question was the one depicted in exhibit G–12 rather than the one at another level referred to in the testimony offered by respondent. The use of the ladder in its defective condition has been established and constitutes a violation of the standard. The ladder at level 908 with the missing top rung is depicted in exhibit G–11 taken by the compliance officer at the time of inspection. This exhibit does show that the top rung of the ladder is missing. The compliance officer did not testify as to the distance between the landing against which the ladder is placed and the first rung below the landing. Respondent offered specific testimony that the first rung was 4 to 6 inches below the landing and that if the missing top rung was on the ladder it would be approximately 8 inches above the landing. It is a step through type ladder and there is no hazard with the top rung missing. Respondent logically contends that the missing rung was not needed at the top of the ladder for the safety of the employees and if present would have constituted a tripping hazard on this step through ladder. Since no additional top rung was needed a top rung was not ‘missing’ as alleged. A violation of the standard has not been established.

Item 13 charges respondent with a violation of 29 CFR 1926.450(a)(7) which provides, in pertinent part, that portable ladders shall be used at such a pitch that the horizontal distance from the top support to the foot of the ladder is about 1/4 of the working length of the ladder. It is alleged that a ladder in the filter area on the north side of the main power plant structure was not used at such a pitch. The ladder in question was a portable wood ladder and the record shows that it was placed at approximately a 45 degree angle and was being used by employees. At such a pitch the horizontal distance from the top support to the foot of the ladder would be greatly in excess of approximately 1/4 of the working length of the ladder. Although the ladder met all of the construction requirements mandated by the standards, it was in violation of the standard in question by reason of the pitch at which it was used.

Item 14 involves the same ladder as in item 12 at level 939 of the main power plant structure. It is alleged that the side rails of this ladder did not extend 36 inches above the landing in violation of 29 CFR 1926.450(a)(9), which provides that side rails shall extend not less than 36 inches above the landing. When this is not practical grab rails which provide a secure grip for an employee moving to or from the point of access shall be installed. The evidence is clear that the side rails on this particular ladder extended 26 inches above the landing. Respondent contends that it was not practical to extend the side rails to a minimum of 36 inches above the landing since if this was doen it would extend the ladder into the guardrail at the perimeter of the landing. Exhibit G–12 substantiates this contention and also shows that the guardrail would serve as a grab rail in compliance with the standard. Accordingly, the standard has not been violated.

Item 15 concerns two metal tube scaffolds at level 809 in the main power plant structure, one without guardrails and one with a rope guardrail. It is alleged that these scaffolds were in violation of 29 CFR 1926.451(a)(4) which provides in pertinent part that guardrails shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor. It also provides that scaffolds 4 feet to 10 feet in height which have a minimum horizontal dimension in either direction of less than 45 inches shall have standard guardrails installed on all open sides and ends of the platform. 29 CFR 1926.451(a)(5) gives the specifications for guardrails or their equivalent. The guardrails shall be approximately 42 inches high, made of lumber or other material providing equivalent protection and shall have a midrail made of lumber or other material providing equivalent protection. As to the scaffold without guardrails, respondent contends that the scaffold was not yet completed and was not in use and was provided with a tag warning employees that it was incomplete. Complainant introduced evidence that the attached tag required employees to use safety belts, but there was no place for safety belts to be tied off. There was no evidence introduced by complainant to the effect that this scaffold was in use, although the compliance officer did testify without objection that he had been told that pipe fitters were using the other scaffold. Both of these scaffolds were in working parts of the structure. Respondent introduced specific and definite testimony that the scaffold was incomplete, was not in a working location, being out of the way against a column, that the safety belt reference on the tag was for the people who would complete the scaffold by installation of the railing and toeboard. A copy of the tag in question is in evidence as exhibit R–12 and plainly states that the scaffold is incomplete. Respondent’s evidence as to the incomplete state and nonuse of the scaffold, along with complainant’s lack of evidence as to its use, leads to a conclusion that the scaffold was not in use at the time of the inspection and accordingly no employees were subject to a hazard therefrom. As to the scaffold with a rope guardrail, the record does show use by the employees. The rope used would be equivalent to the material specified for construction of a guardrail. The evidence shows that a top rail and midrail were provided on this scaffold and consequently the standard has not been violated.

On this job respondent used scaffolds demoninated by complainant as float scaffolds. Respondent contends that these were not float scaffolds as defined by the applicable standard. Exhibits G–16 and R–14 depict the type of scaffold used by respondent consisting of a 3/4 inch plywood platform, 4 feet wide and 5 feet long, with framing around the outer edge of the platform on the top and bottom of the platform. The framing serves as a toeboard for the platform. Crisscorssed on the bottom to of platform and passing through holes at each corner is 1 inch manila rope, forming diagonal cross bracing on the underside of the platform. These ropes are tied off above the platform. Item 16 alleges that these scaffolds violate 29 CFR 1926.451(w)(3) which provides that under the platform of a float scaffold there shall be two supporting bearers made from 2 x 4 inch 1 x 10 inch rough ‘selected lumber’ or better. These bearers shall be free of knots or other flaws and project 6 inches beyond the platform on both sides. The ends of the platform shall extend 6 inches beyond the outer edges of the bearers and each bearer shall be securely fastened to the platform. 29 CFR 1926.452(b)(9) defines a float scaffold as one which is hung from overhead supports by means of ropes and consist of a substantial platform having diagonal bracing underneath resting upon and securely fastened to two parallel plank bearers at right angles to the span. There are no bearers on the scaffolds in question. Respondent contends that by definition the bearers are an integral part of a float scaffold and it necessarily follows that these are not float scaffolds. This defense cannot prevail. As stated by the compliance officer this type of scaffold is what is understood in the construction industry to be a float scaffold. The standard alleged to be violated specifically requires support bearers on a float scaffold. Respondent cannot avoid liability by merely refusing to construct the scaffold with support bearers and then contend that because of its omission the standard has not been violated because the scaffold does not meet a definition which respondent chose to avoid. Respondent further contends that even if the standard in question is applicable to these scaffolds, the design and materials used provided at least the equivalent strength, stability and safety in compliance with 29 CFR 1926.451(w)(1), which mandates specific design and construction unless substitute designs and materials provide equivalent strength, stability and safety. The compliance officer testified as to the warping of the platforms from exposure to the weather, no structural firmness to the platform and the hazard of collapse from deterioration without having the support bearers underneath the platform. Respondent’s safety officer testified that in his opinion the design used was safer, but there is no evidence of record that this design was of equivalent strength and stability as required by the standard. Since the record does not show that this substitute design meets all three equivalent factors, it necessarily follows that the standard has been violated.

29 CFR 1926.500(f)(1)(iv) is concerned with railings and provides that the anchoring of posts and framing of members for railings of all types shall be of such construction that the completed structure shall be capable of withstanding a load of at least 200 pounds applied in any direction, at any point on the top rail with a minimum of deflection. In item 17 complainant alleges that this standard was violated on the north side of the main power plant structure at level 917. The evidence is conflicting. The compliance officer testified that the anchors, posts and framing for the guardrails at that level were made of wood and were very flimsily put together so that he could shake the guardrails. He shook the top guardrail and it came off in his hand. Respondent’s safety engineer was in the area at the time and made no comment. The guardrail was then put back in place. The guardrail was protecting an open-sided floor and preventing employees from falling into the interior of the structure. In Jackson’s opinion it was not constructed to withstand the impact of a 200 pound man. The safety engineer testified that the guardrail consisted of 1/2 inch wire rope, had minimal deflection upon pushing, was offset 36 inches from the side of the platform, would withstand a load of 250 pounds in any direction with a minimum of deflection, and anyone deflecting it would still be within the perimeter of the building. the guardrail would prevent an employee from falling over the side of the building. The framing and uprights were not bent in any manner. He recalled that the complaince officer pushed on the guardrail, but did not recall it coming off. The compliance officer’s statement is direct and positive that the anchors, posts, and framing for the guardrails were very flimsily put together so that the guardrails could be shaken and resulted in the top guardrail coming off. The safety engineer gave no testimony as to the solidity of the construction of the anchors, post, and framing except to say that the framing and uprights were not bent in any manner. The compliance officer’s testimony as to the flimsy construction of the posts, uprights and framing is not contradicted and lends credence to his positive statements that upon shaking, the guardrail came off in his hand. Obviously, this would present a hazard to the employees working in the area and would constitute a violation of the standard.

An illustration of certain prescribed hand signals to crane and derrick operators shall be posted at the jobsite under the provisions of 29 CFR 1926.550(a)(4). These signals are contained in a poster used by respondent, a copy of which is in evidence as exhibit R–15. A poster such as this is given to every employee upon hiring and copies of the hand signals are posted at five locations on the jobsite as shown in exhibits R–16 through 19 and exhibit R–21. All of the employees have occasion from time to time during the course of their employment to be at one or more of these posted locations. An illustration of the hand signals was not posted on a specific crane at the jobsite, and complainant charges under item 18 that this is a violation of the standard. The standard does not require posting of the illustration on a crane, but merely requires posting at the jobsite. As indicated, the record adequately shows posting of the requisite illustration at more than one location on the jobsite and accordingly the standard has not been violated.

It appears from the record that respondent makes monthly inspections of its hoisting machines and equipment. Forty-four separate items are covered by the inspection, the results of which are entered on a standard form (exhibit R–2). The form also has a space for remarks. Exhibits R–22 through R–24 are replicas of completed monthly inspection forms. The inspections are made by a master mechanic. 29 CFR 1926.550(a)(6) provides in pertinent part that a thorough annual inspection of hoisting machinery shall be made by a competent person and that the employer shall maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment. Item 19 alleges that respondent did not maintain a record of such an annual inspection. Complainant’s theory, as embodied in the testimony of the compliance officer is that the monthly inspection is a visual inspection and the annual inspection should be more detailed and should go into the machine in depth, such as getting back to check the interior brake bands on the brake drums. The record shows that the master mechanic makes a thorough monthly inspection. In addition to a visual inspection, he pulls wheels, checks brakes and does other things of a similar nature. The standard alleged to have been violated requires a thorough annual inspection, and the record substantiates that a thorough monthly inspection of the machinery is made, records of which are kept. Obviously if a thorough inspection is made monthly, it is made annually. The standard requires no specific form or date for an annual inspection, and the monthly inspections by respondent fulfill the requirements of the standard. Accordingly, there has been no violation.

In item 20 complainant alleges that the crane which is the subject of item 18 had a cracked front window in violation of 29 CFR 1926.550(a)(12) which provides in substance that all window shall be of safety glass or equivalent and introduce no visible distortion that will interfere with the safe operation of the machine. The front window of the crane was safety glass, and there was a crack in the lower portion of the window as depicted in exhibit R–4. The crack did not cause any visible distortion, was not in the operators line of vision, and did not interfere with the safe operation of the crane. Accordingly, the standard was not violated.

At levels 841 and 939 of the main power plant structure, pneumatic tuggers were used in the steel erection. These are base mounted drum hoists with a 3 inch cable which would wind up on the tugger and also be played out from the tugger. It would be used to move steel throughout the structure by means of hoisting or tugging on the steel. The operator of a unit such as this sits at the machine in line with the cable going out in the one instance, and in the other instance sits at the side of the unit in close proximity to the cable going out. No guarding of any kind is supplied as to the operator, and complainant contends that should a cable snap there would be no protection for the operator. Item 21 alleges that this situation exposes the operator to moving parts of the machine, which constitutes a hazard and is in violation of 29 CFR 1926.553(a)(1), which provides in substance and in pertinent part that on base mounted drum to hoists exposed moving parts such as cables which constitute a hazard shall be guarded. Respondent contends that this standard is meant to apply to nip points, rotating parts, chain, and sprockets, gears, etc., which are mentioned in the standard along with the cables. Respondent also avers that the standard does not require that employees be protected in the event that a cable breaks. Respondent’s contention of the nonapplicability of the standard cannot be sustained. By its terms the standard specifically includes cables as some of the exposed moving parts which shall be guarded. The standard also provides that the cables must constitute a hazard. The only evidence of record as to this requirement is that of the compliance officer, who specifically testified that a hazard would exist if the cable broke while the machine was in operation. There is no evidence that in the normal operation the moving cable would constitute a hazard. There is no evidence from which it can be inferred that a reasonably foreseeable consequence of normal operation would be the breaking of a cable and the consequent creation of a hazard. Absent such evidence there is no basis on which a finding can be made that the standard has been violated.

Complainant has proposed various penalties for the violations encompassed in the citations and items which I have indicated will be affirmed, and it is now necessary to determine the appropriate penalties, if any, to be assessed for those violations.

Complainant charges that item 2 of citation 2 is a willful violation and has proposed a penalty of $9,000. Section 17(a) of the Act provides that for a willful violation a civil penalty of not more than $10,000 may be assessed. The Act does not define a ‘willful violation’. The Commission has stated that a violation is willful when it is intentional, knowing or voluntary, as distinguished from accidental, and may be characterized as conduct marked by a careless disregard. Georgia Electric Company, 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977–78, CCH OSHD ¶21,613 (No. 9339, 1977). This definition has been accepted by the 8th Circuit in Western Waterproofing Company, Inc., v. Marshall, 576 F.2d 139 (8th Cir., 1978). The burden is on complainant to show that respondent’s conduct would bring it within this definition of a willful violation. As previously noted, complainant’s evidence with respect to this violation is restricted to employees using steel beams as walkways with randomly placed planking 12 to 14 feet below these employees. Other evidence of record shows that, for the most part, temporary and permanent flooring was used extensively throughout the structure. Apparently at some point prior to the inspection a shortage of planking existed, and upon inquiry by the shop steward additional planking was secured. An overall view of the evidence does not authorize a finding that respondent deliberately and willfully violated the standard in question. Although the violation is not willful in nature, it can be properly classified as a serious violation. Section 17(k) of the act provides that a serious violation shall be deemed to exist if there is a substantial probability that death or serious physical harm could result from the violative condition. It is apparent that with the planking randomly placed and with holes in the surface resulting therefrom, a substantial probability of death or serious physical harm did exist. Section 17(b) of the Act authorizes assessment of a civil penalty of up to $1,000 for a serious violation. Under section 17(j) assessment of a penalty shall give due consideration to the appropriateness thereof with respect to the size of the business of respondent, the gravity of the violation, the good faith of respondent and the history of previous violations. No evidence has been adduced as to the size of respondent’s business although its answer does admit that it employed approximately 750 employees at the worksite in question. Likewise, there is no evidence as to a history of previous violations. Respondent’s extensive use of planking and flooring throughout the structure and its acquisition of additional flooring when a shortage materialized indicates its good faith. The gravity of the violation is relatively high but is tempered by these other considerations, Overall, a penalty of $500 would adequately effectuate the purposes of the Act.

I have previously indicated that item 2 of citation 3 should be vacated with regard to subitem a and that subitem b should be classed as de minimis. Such a classification is proper where the probability of an injury resulting from the violation is so slight and remote as to be negligible. Accordingly, this portion of the citation should be amended to allege a de minimis violation of the Act and no penalty assessed therefor.

Of the 22 items contained in citation 4, I have indicated that 11 should be vacated and 11 affirmed. Of those affirmed complainant has proposed penalties for 5 of the items and has proposed no penalties for 6 of the items. I have reviewed these proposals in light of the factors to be considered in assessing penalties. These violation are alleged by complainant to be not of a serious nature, and on the basis of the evidence adduced I have determined that this classification is proper. I find that the penalties proposed by complainant will adequately effectuate the purposes of the Act, and civil penalties should therefore be assessed against respondent in the following amounts for the various affirmed item of citation 4: Item 1, $100; item 2, $230; item 7, $100; item 12, $100 and item 16, $165. No penalties are proposed for the other items of citation 4 which I have found should be affirmed and no penalties should be assessed for these items.

A careful and considerable evaluation of the record herein and the applicable law leads to the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. It has been admitted that respondent is engaged in a business affecting commerce and is an employer within the meaning of the Act.

2. During the period August 31 through September 13, 1977, respondent was engaged in the construction of an electric generating plant at Iatan, Missouri.

3. Said construction site was inspected by compliance officers of the Occupational Safety and Health Administration during said period.

4. At the time of the inspection the plant was in the steel erection stage of construction.

5. Temporary flooring was provided directly below the level on which any work was being performed in the upper levels of the west wings of the main power plant structure. No employee was working at a lower level where temporary flooring was not in place.

6. At the time of the inspection the various structural members forming the structure were bolted together for erection purposes only and were not bolted for load purposes.

7. With the structure bolted for erection purposes it was safe in winds of up to 130 miles per hour and was capable of supporting approximately 60 thousand ton, its own weight at that time being 6 thousand tons.

8. There was no hazard of collapse of the structure at the time of the inspection.

9. At levels 939, 917 and 885 of the main power plant structure, employees were using steel beams as walkways.

10. There was randomly placed planking 12 to 14 feet below said employees and said planking contained open holes.

11. There is no evidence that the work rest on a Milwaukee bench mounted grinder in the electrical shop was kept at a distance in excess of 1/8 inch from the surface of the wheel.

12. One-inch diameter manila rope was used as a guardrail on an open-sided floor at level 895 of the main power plant structure.

13. Said guardrail consisted of a top rail, a middle rail and a toeboard, was securely tied, was approximately 6 to 12 inches from the edge of the open-sided floor, would prevent employees from falling off the open-sided floor and was equivalent to a standard guardrail.

14. The wire rope guardrail at level 841 of the main power plant structure consisted of a top rail, midrail and toeboard. The metal angle iron upright was bent at approximately a 30 degree angle from vertical resulting in a 4 to 6 inch deflection.

15. The lowest point of the top rail of said guardrail was 38 inches, and the guardrail was approximately 6 inches from the edge of the platform.

16. The deflection presented no hazard of falling over the side. The guardrail was equivalent to a standard railing except that it was 4 inches less in height than required by the standard.

17. The deflection was minimal and did not of itself create a fall hazard.

18. The operating valve on an abrasive blast cleaning nozzle in the new water management building was clogged and inoperative.

19. An employee had been placed at the cut off valve for the air supply who could shut off the air supply within a second in the event of an emergency.

20. A properly operating valve which must be held open manually was not maintained on said nozzle.

21. In the event of an emergency the arrangement used by respondent would not prevent injury to the operator of the nozzle.

22. At various levels of the main power plant and at ramdom locations on the floors thereof, hoses, stockpiles of planking and floor grates, incompletely installed floor grates, small piles of steel bolts and other related sundry items were located. There were also air lines and electric welding cables lying on the floor at various locations throughout the structure.

23. The above items caused a tripping hazard for the employees.

24. Respondent instructed newly hired employees as to housekeeping and had weekly meetings at which various safety topics were discussed, including housekeeping and orderliness. Respondent’s procedures and instruction did not prevent the accumulation of the aforementioned tripping hazards.

25. Respondent maintained and used two liquid dispensing pumps on the south side of the main warehouse, and the nature of the liquid dispensed by these pumps was not established.

26. At ground level on the north side of the main power plant structure an air line from a portable compressor to a pneumatic jack hammer had no safety device.

27. At level 939 of the main power plant structure the safety device had been removed from a manifold outlet and was replaced the same day of the inspection.

28. No management official or employee would have any reason to remove either of these devices, and no one in a managerial or supervisory capacity for respondent had knowledge of the absence of these safety devices nor is there any evidence inferring that such personnel had knowledge of the absence of these devices.

29. In the fabrication shop a Black and Decker bench grinder was not provided with an adjustable tongue guard.

30. In the maintenance shop a Milwaukee bench grinder was provided with a tongue, but there is no evidence as to the distance between the periphery of the abrasive wheel and the tongue.

31. At the time of inspection the ring guard on a DeWalt saw in the carpentry shop was secured in an up position by a wedge of wood. When the piece of wood was removed the guard came back into proper position.

32. The fingers of an anti-kickback device on a saw used for ripping were frozen and inflexible.

33. At several locations on the worksite compressed gas cylinders were lying on the ground and were not secured in an upright position. Said gas cylinders were not being hoisted or carried at the time of the inspection.

34. The covering of a welding cable going into one of the welding test booths at the worksite had a slight break or crack which was not visible and could only be discovered in the course of a hand-over-hand inspection of the cable. The cable was free of repair or splices.

35. On the ground floor in the northeast corner of the main power plant structure six welding machines were mounted in a rack. The frame of the rack was not grounded, and the frames of the individual machines were grounded.

36. A standard electrical handy box was mounted at ground level immediately outside the safety office in the area in which employees parked their automobiles.

37. Said box had holes in it, was subject to weather conditions and was in a position where employees could step on it.

38. At several locations temporary lighting cords were strung out all over the floor of areas in which employees were working. The normal practice on a construction project is to erect a support so that said cords do not lay on the ground.

39. At level 939 of the main power plant structure a wooden ladder was in use with a cracked right side rail. The side rails of said ladder extended 26 inches above the landing. If said side rails extended a minimum of 36 inches above the landing, they would extend into the guardrail at the perimeter of the landing. Said guardrail served as a grab rail for the ladder.

40. At level 908 of the main power plant structure the uppermost rung of a wooden ladder was 4 to 6 inches below the landing, and if an additional higher rung was in place that rung would be approximately 8 inches above the landing. This is a step through type ladder and if a higher rung was present it would constitute a tripping hazard for employees stepping off the ladder.

41. In the filter area on the north side of the main power plant structure a portable wooden ladder was in use at approximately a 45 degree angle. The horizontal distance from the top support to the foot of the ladder was in excess of approximately 1/4 of the working length of the ladder.

42. At level 809 in the main power plant structure a scaffold had no guardrails, had not been completed at the time of the inspection, was tagged as being incomplete and was not in use.

43. At level 809 of the main power plant structure a scaffold was in use with a rope guardrail which was equivalent to a standard guardrail.

44. In the main power plant structure respondent used float scaffolds which did not have supporting bearers under the platform of the scaffolds. The design used by respondent in construction of these scaffolds was not of equivalent strength and stability as would be provided by the use of support bearers.

45. The anchors, posts and framing of guardrails at level 917 of the main power plant structure were made of wood, were flimsy and the top rail would come off when shaken by hand. The construction would not withstand the impact of a 200 pound man.

46. Illustrations of certain prescribed hand signals to crane and derrick operators were given to every employee upon hiring, and copies of said signals were posted at five locations on the jobsite. Employees from time to time during the course of their employment would have occasion to be at one or more of these posted locations.

47. Respondent made thorough monthly inspections of its hoisting machinery by a master mechanic. A record of the dates and results of said inspections is maintained by respondent.

48. The front window of an American crawler crane at the jobsite is safety glass, and at the time of inspection there was a crack in the lower portion of the window. The crack did not cause any visible distortion, was not in the operator’s line of vision, and did not interfere with the safe operation of the crane.

49. At levels 841 and 939 of the main power plant structure pneumatic tuggers are operated by employees who sit either in line with the outgoing cable from the tugger or at the side of the unit in close proximity to the outgoing cable. No guarding is supplied for the operator, and in the course of ordinary operation the operator does not come into contact with the cable.

50. The operators of said tuggers are not exposed to any hazard from the moving cable during the normal operation of the tugger, and the moving cable does not constitute a hazard during normal operation.

CONCLUSIONS OF LAW

1. At all times relevant herein respondent was an employer engaged in a business affecting commerce within the meaning of the Act, and the Commission has jurisdiction over the subject matter and the parties.

2. The inspection of respondent’s worksite was with the consent of respondent, no search warrant was necessary, and the evidence obtained through said inspection is not subject to suppression.

3. The standards found at 29 CFR 1926 have been properly promulgated, and in any event a challenge to their validity cannot be raised in this enforcement proceeding.

4. The notes made by compliance officer Woods are within the exception to the hearsay rule contained in Rule 803(8) of the Federal Rules of Evidence.

5. Respondent did not violate section 5(a)(1) of the Act as alleged in citation 1.

6. Respondent did not violate section 5(a)(1) of the Act or 29 CFR 1926.750(a)(2) as alleged in citation 2, item 1. Respondent violated 29 CFR 1926.750(b)(2)(i) and such violation is serious in nature.

7. Respondent did not violate 29 CFR 1926.303(c)(2) as alleged in citation 3, item 1.

8. Respondent violated 29 CFR 1926.500(d)(1) as alleged in citation 3, item 2. The probability of an injury occurring to respondent’s employees by reason of this violation is so remote as to be negligible, and the violation is de minimus in nature.

9. Respondent violated 29 CFR 1910.244(b) as alleged in citation 4, item 1.

10. Respondent violated 29 CFR 1926.21(b)(2) as alleged in citation 4, item 2.

11. Respondent did not violate 29 CFR 1926.152(e)(4) as alleged in citation 4, item 3.

12. Respondent did not violate 29 CFR 1926.302(b)(7) as alleged in citation 4, item 4.

13. Respondent violated 29 CFR 1926.303(b) as alleged in citation 4, item 5.

14. Respondent did not violate 29 CFR 1926.304(f) as alleged in citation 4, item 6a.

15. Respondent violated 29 CFR 1926.304(f) as alleged in citation 4, item 6b.

16. Respondent violated 29 CFR 1926.350(a)(9) as alleged in citation 4, item 7.

17. Respondent did not violate 29 CFR 1926.351(b)(2) as alleged in citation 4, item 8.

18. Respondent did not violate 29 CFR 1926.351(c)(5) as alleged in citation 4, item 9.

19. Respondent violated 29 CFR 1926.400(a) as alleged in citation 4, item 10.

20. Respondent violated 29 CFR 1926.401(j)(3) as alleged in citation 4, item 11.

21. Respondent violated 29 CFR 1926.450(a)(2) as alleged in citation 4, item 12.

22. Respondent violated 29 CFR 1926.450(a)(7) as alleged in citation 4, item 13.

23. Respondent did not violate 29 CFR 1926.450(a)(9) as alleged in citation 4, item 14.

24. Respondent did not violate 29 CFR 1926.451(a)(4) as alleged in citation 4, item 15.

25. Respondent violated 29 CFR 1926.451(w)(3) as alleged in citation 4, item 16.

26. Respondent violated 29 CFR 1926.500(f)(1)(iv) as alleged in citation 4, item 17.

27. Respondent did not violate 29 CFR 1926.550(a)(4) as alleged in citation 4, item 18.

28. Respondent did not violate 29 CFR 1926.550(a)(6) as alleged in citation 4, item 19.

29. Respondent did not violate 29 CFR 1926.550(a)(12) as alleged in citation 4, item 20.

30. Respondent did not violate 29 CFR 1926.553(a)(1) as alleged in citation 4, item 21.

31. The violations by respondent of the various items of citation 4, as set out above, were of an other than serious nature.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is hereby ORDERED:

1. Citation 1 is vacated.

2. Citation 2, item 1, is vacated.

3. Citation 2, item 2, is affirmed as a serious violation and a civil penalty in the amount of $500 is assessed thereon.

4. Citation 3, item 1, is vacated.

5. Citation 3, item 2, is amended to allege a de minimus violation and is affirmed.

6. Item 1, 2, 7, 12 and 16 of citation 4 are affirmed and civil penalties are assessed for these violations in the following amounts: Item 1, $100; item 2, $230; item 7, $100; item 12, $100; and item 16, $165.

7. Items 5, 6b, 10, 11, 13, and 17 of citation 4 are affirmed and no penalty is assessed thereon.

8. Items 3, 4, 6a, 8, 9, 14, 15, 18, 19, 20, and 21 of citation 4 are vacated.

Date: April 4, 1979

F. DALEY ABELS

Judge, OSHRC

1 The fourth amendment 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.

2 Consistent with the limited scope of the direction for review, we do not review the judge’s rulings on the other motions made before the judge. Nor do we review the judge’s disposition of the various contested citations and proposed penalties. In particular, we express no opinion concerning the merits of the numerous exceptions to the judge’s decision set forth in Daniel’s petition for discretionary review that raise issues not within the scope of the direction for review. Accordingly, with the exception of that part of the judge’s decision denying Daniel’s motion to suppress, as modified by this decision, Judge Abels’ decision and order is accorded the significance of an unreviewed judge’s decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶20,387 (No. 4090, 1976), appeal withdrawn, No. 76–4070 (2d Cir. 1976).

3 On August 31, 1977, Jackson was carrying credentials that consisted of two sections. The first section was similar to a personal identification card. It contained a photograph of Jackson and his signature and a statement by the Assistant Secretary of Labor certifying that Jackson ‘has been duly appointed as a compliance officer’ authorized to carry out the duties of his office. The second section paraphrased section 8(a) of the Act, 29 U.S.C. § 657(a), which sets forth the Secretary’s authorization to conduct inspections and investigations under the Act. This section of the credentials stated the following:

Occupational Safety and Health Compliance Officers are authorized to enter without delay, inspect, and investigate during working hours and at other reasonable times any factory, plant, establishment, construction site or other area, workplace, or environment where work is performed including all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein, and to question privately any such employer, owner, operator, agent or employee.

The record indicates that this type of credentials was routinely used by all OSHA compliance officers until the United States Supreme Court issued its decision in Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) [‘Barlow’s’], holding that section 8(a) of the Act ‘is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent.’ 98 S. Ct. at 1827. Following and as a result of this decision, compliance officer credentials were altered by removing the section paraphrasing section 8(a) of the Act.

4 As discussed more fully herein, the case was subsequently reassigned to Judge Ables, whose decision and order are before us on review.

5 Daniel argued that the compliance officers’ credentials created the impression that their inspection was authorized by law and that the employer had no right to refuse to permit it.

6 Specifically, Daniel cited the Secretary’s regulation at 29 C.F.R. § 1903.4, which instructed Labor Department personnel to ‘promptly take appropriate action, including compulsory process, if necessary’ whenever a compliance officer was denied entry into a workplace, and 18 U.S.C. § 111, which provides for a fine and/or imprisonment for interference with a government officer in the performance of his or her duties. Daniel asserted that ‘[i]t is no secret that ‘appropriate action’ [under 29 C.F.R. § 1903.4] could have included a criminal charge under 18 U.S.C. § 111.’

7 In particular, Judge Abels noted the rejection in Stephenson Enterprises, Inc., supra, of a contention that a plant manager might have been ‘bedazzled’ by the credentials of an OSHA compliance officer. He considered this contention to be ‘analogous’ to Daniel’s position in the instant case.

8 Daniel argues that the three circuit court opinions relied upon by the judge are each distinguishable.

9 Expanding on its earlier arguments, Daniel asserts:

Barlow’s did not overrule past clear precedent. Instead, it affirmed a lower court decision which followed the greater weight of authority. The OSHA compliance officers, therefore, were, in 1977, properly charged with knowledge that section 8(a) nonconsensual searches were unconstitutional. Thus, the imperative of judicial integrity commands that Barlow’s be applied and the evidence seized be excluded.

10 The Secretary cites Todd Shipyards and Savina Home Industries, Inc., v. Secretary, 594 F.2d 1358 (10th Cir. 1979) [‘Savina Home’]. The Secretary asserts that the judge’s decision ‘is accordingly affirmable on this ground alone, regardless of whether the inspection did or did not actually comply with the requirements of the Fourth Amendment.’

11 It is, of course, clear that voluntary consent is the equivalent of a warrant in the context of the fourth amendment. Daniel’s other arguments in this case show its recognition of this fact. Moreover, nothing in the Court’s decision in Barlow’s precludes an inspection under section 8(a) of the Act where the employer consents to the inspection. Indeed the Court expressly stated its expectation that its holding would not ‘impose serious burdens on the inspection system or the courts . . . [because] the great majority of businessmen can be expected in normal course to consent to inspection without warrant; . . .’ 98 S. Ct. at 1822. The Court went on to implicitly endorse a regulatory scheme in which the compliance officer would initially appear at the worksite seeking a consensual inspection and, only after being refused entry, obtain ‘an ex parte warrant . . . to reappear at the premises without further notice to the establishment being inspected.’ 98 S. Ct. at 1823–1824.

12 We further note the following observations by that court:

Barlow’s was a case of first impression. It extended Fourth Amendment protections into a new area by the declaring unconstitutional a Congressional enactment—which enactment had been relied on by OSHA personnel as they conducted administrative inspections. Barlow’s also clarified the relationship between [the Camara and See cases, supra, and subsequent Supreme Court decisions that appeared to narrow the principles of Camara and See].

594 F.2d at 1364 n. 11. The court further stated that ‘[p]rior to the Supreme Court’s decision in Barlow’s there was no assurance that Section 8(a) would be held unconstitutional.’ 594 F.2d at 1364.

13 The Secretary maintains the view that the exclusionary rule should not apply to OSHA proceedings even if evidence is obtained as a result of an illegal search.

14 The court in Brennan v. Gibson’s Products, Inc. of Plano, 407 F.Supp. 154 (E.D. Texas 1976), rev’d on other grounds, 584 F.2d 668 (5th Cir. 1978), concluded that although a noncensensual, warrantless OSHA inspection would be violative of fourth amendment standards, section 8(a) could be read consistent with the fourth amendment to authorize inspections conducted pursuant to a warrant. In contrast, the three judge panel in Barlow’s Inc. v. Usery, 424 F.Supp. 437 (D. Ida. 1977), aff’d sub.mon. Marshall v. Barlow’s, Inc., supra, declined to accept this approach. In declaring the inspection provisions of the Act unconstitutional, the Barlow’s District Court stated:

While we adopt, in general, similar reasoning employed there, we decline the invitation to judicially redraft an enactment of Congress. Unlike the Gibson’s Products court, we can not accept the proposition that the language of the OSHA inspection provisions envision the requirement that a warrant be obtained before any inspection is undertaken.

424 F.Supp. at 441. The Supreme undertaken. district court, but interpreted the Act in a manner similar to the approach taken in Gibson’s Products.

15 E.g. U.S. v. Peltier, 422 U.S. 531 (1975).

16 It is important to distinguish the rule of decision regarding OSHA inspections announced by the Court in Barlow’s from the availability of a remedy for a constitutional infringement that occurred when an official’s conduct did not conform to the subsequently announced constitutional standards. The rule of decision is the substantive constitutional law to be applied at the time of trial or appellate decision. However, the availability of a remedy for infringements preceding the rule of decision is determined on the basis of the purposes served by the application of the remedy. The exclusionary rule is a ‘judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ U.S. v. Calandra, 414 U.S. 338, 348 (1974). Where the action of a government official is taken ‘in complete good faith, however, the deterrence rationale loses much of its force.’ Michigan v. Tucker, 417 U.S. 433, 447 (1974).

17 Daniel in essence urges the Commission to reverse or limit its rule on retroactivity announced in Meadows Industries, Inc., supra. These issues are proper for Commission decision and are presented in the context of a genuine controversy between the parties. Compare Brief of the Secretary 10–14 with Brief of Respondent 13–19. The resolution of these issues clarifies the impact of Meadows Industries, Inc. on pre-Barlow’s inspections.

18 See Linkletter v. Walker, 38§ U.S. 618 (1965). In Stovall v. Denno, 388 U.S. 293, 300 (1967), the court observed:

[N]o distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable.

19 Compare Brennan v. Gibson’s Products, Inc., supra note 2; Marshall v. Chromalloy Am. Corp., 433 F.Supp. 330 (E.D. Wis. 1977); Empire Steel Mfg. Co., v. Marshall, 437 F.Supp. 873 (D.Mon. 1977): Dunlop v. Hertzler Enterprises, Inc., 418 F.Supp. 627 (D.N.M. 1976), with Brennan v. Buckeye Industries Inc., 374 F. Supp. 1350 (S.D. Ga. 1974).

20 An administrative agency charged by Congress with the duty of interpreting and enforcing a statute is bound by principles of law announced by the Supreme Court but is not required to acquiesce in the views of lower federal courts that conflict with those of the agency. See S & H Riggers & Erectors, Inc., 79 OSAHRC ___, 7 BNA OSHC 1260, 1979 CCH OSHD ¶23,480 (No. 15855, 1979), appeal filed, No. 79–2358 (5th Cir. June 7, 1979); 1B Moore’s Federal Practice ¶.403, at 358 n. 30 (2d ed. 1974).