Downrite Engineering & Development Corp. v. Occupational Safety & Health Review Commission

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-12604 ELEVENTH CIRCUIT
FEBRUARY 1, 2007
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
OSHC No. 05-0710
DOWNRITE ENGINEERING & DEVELOPMENT CORP.,
Petitioner,
versus
OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION,
Respondent.
________________________
On Petition for Review of an Order of the
Occupational Safety and Health Review Commission
________________________
(February 1, 2007)
Before TJOFLAT, HULL and COX, Circuit Judges.
PER CURIAM:
Downrite Engineering & Development Corp. (“Downrite”) appeals the Order
of the Occupational Safety and Health Review Commission (“Commission”), whose
Administrative Law Judge (“ALJ”) affirmed citations issued to Downrite for
violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678.
The ALJ determined Downrite to be in violation of the following: (1) 29 C.F.R.
§ 1926.20(b)(2) for failing to have a designated competent person make frequent and
regular inspections of the worksite; (2) 29 C.F.R. § 1926.100(a) for failing to ensure
employees were protected from falling objects with protective helmets; (3) 29 C.F.R.
§ 1926.501(b)(4)(i) for failing to provide fall protection to employees exposed to falls
greater than six feet; and (4) an “other” violation of 29 C.F.R. § 1926.21(b)(6)(i) for
failing to instruct employees in confined space safety. (R.3-24 at 12.) The ALJ found
the first three violations to be serious, and assessed penalties totaling $3600 for these
three violations. (R.3-24 at 12.) Downrite petitioned the Commission for
discretionary review, which the Commission declined. The ALJ’s decision then
became the final order of the Commission. (R.3-28 at 1.) Downrite filed a timely
petition for review by the court. Downrite contends the Order of the ALJ should be
reversed for three reasons: (1) Downrite did not consent to the warrantless inspection
by OSHA Compliance Safety and Health Officers, and such an inspection was a
violation of its Fourth Amendment rights; (2) Downrite had no actual or constructive
knowledge of the violations; and (3) none of the citations constituted a “serious
violation” of an OSHA safety standard.
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This court’s review of Commission decisions is limited and highly deferential.
See Fluor Daniel v. OSHRC, 295 F.3d 1232, 1236 (11th Cir. 2002). The court must
sustain the Commission’s fact-finding as long as it is “supported by substantial
evidence on the record considered as a whole,” 28 U.S.C. § 660(a), and the
Commission’s determinations will be upheld unless “they are ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with [the] law.’” Flour Daniel,
295 F.3d at 1236 (quoting 5 U.S.C. § 706(2)(A)).
We find no error in the ALJ’s determination that the search was consensual,
and therefore not in violation of the Fourth Amendment. And, we conclude that
substantial evidence supports the ALJ’s factfinding, and that the ALJ’s conclusions
are not shown to be “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
AFFIRMED.
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