                                                  Filed: June 24, 1998


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 97-1492



L. R. Willson and Sons, Incorporated,

                                                           Petitioner,

           versus


Occupational Safety & Health Review Commis-
sion; Secretary of Labor,

                                                          Respondents.



                              O R D E R



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

follows:

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

“Secretary of Labor” as a respondent.

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

counsel listing is changed to read “Respondents.”

                                          For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

L. R. WILLSON AND SONS,
INCORPORATED,
Petitioner,

v.                                                              No. 97-1492

OCCUPATIONAL SAFETY & HEALTH
REVIEW COMMISSION; SECRETARY
OF LABOR,
Respondents.

On Petition for Review of an Order
of the Occupational Safety and Health Review Commission.
(94-1546)

Argued: October 31, 1997

Decided: January 28, 1998

Before RUSSELL and LUTTIG, Circuit Judges, and CAMPBELL,
Senior Circuit Judge of the United States Court of Appeals for the
First Circuit, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Russell wrote the opinion, in which Judge Luttig joined.
Judge Campbell wrote a concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Frank Leo Kollman, KOLLMAN & SHEEHAN, P.A.,
Baltimore, Maryland, for Petitioner. Charles Franklin James, Office
of the Solicitor-OSH, UNITED STATES DEPARTMENT OF




                                                - 2 -
LABOR, Washington, D.C., for Respondents ON BRIEF: Randi
Klein Hyatt, KOLLMAN & SHEEHAN, P.A., Baltimore, Maryland,
for Petitioner. J. Davitt McAteer, Acting Solicitor of Labor, Joseph
M. Woodward, Associate Solicitor for Occupational Safety and
Health, Ann Rosenthal, Counsel for Appellate Litigation, Office of
the Solicitor-OSH, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

L.R. Willson and Sons, Inc. ("Willson") appeals the Occupational
Safety and Health Review Commission's affirmance of a citation by
the Secretary of Labor (the "Secretary") for violation of the Occupa-
tional Safety and Health Act of 1970 ("the Act").1 The Secretary
issued the citation as a result of an inspection of one of Willson's con-
struction worksites in Orlando, Florida that revealed that Willson
employees were working on structural steel more than 80 feet above
ground without using the "fall protective devices" mandated by 29
C.F.R. § 1926.750(b)(1)(ii).2 An Administrative Law Judge ("ALJ")
of the Occupational Safety and Health Administration ("OSHA") held
an evidentiary hearing on the matter, concluded that Willson had
indeed violated the regulation, and assessed a fine of $7,000. The
Safety and Health Review Commission (the "Commission") affirmed
the ALJ's findings, and this appeal followed.

Because we find that the Commission erred in placing the burden
of showing the unforeseeability or preventability of the violation in
question on Willson, we reverse.
_________________________________________________________________

1 29 U.S.C. §§ 651-678 (1994).

2 This regulation states in part that: "On buildings or structures not
adaptable to temporary floors, and where scaffolds are not used, safety
nets shall be installed and maintained whenever the potential fall distance
exceeds two stories or 25 feet."

                    2




                                                   - 3 -
I.

The inspection that resulted in the Secretary's citation took place
on April 29, 1994, and was precipitated by the observations of Joseph
Dear, Assistant Secretary of Labor for Occupational Safety and
Health. Dear, whose room at the Peabody Hotel was across the street
from Willson's worksite in Orlando, observed from his window
employees on the site working without fall protection. Dear tele-
phoned Ronald Anderson, a local OSHA "compliance officer," and
told him of what he had seen, and Anderson came to make an inspec-
tion of the site. However, rather than going immediately to the Will-
son site, Anderson obtained permission from the Peabody Hotel to
videotape the activities on the site from the hotel's roof. For approxi-
mately 50 minutes, Anderson videotaped the activities at the site,
which included two employees working at a height of about 80 feet
without adequate safety cables, through a "16" power camera lens.
Anderson then went to the site, presented his credentials, and was
allowed to interview the two employees he had observed.

During the interview and at the hearing before the ALJ, the two
employees, Randall Manley ("Manley") and Donald McVay
("McVay"), admitted to violating the OSHA regulation, and Manley,
who said he considered himself a foreman on the site, stated that he
realized safety cables were required, but that they had not been
installed on certain parts of the site. In addition, Manley stated his
belief that the cables that had been installed were unsuitable.

In rebuttal, James Willson, Willson's vice president for field opera-
tions, testified that the area where Manley and McVay were observed
working without safety cables had not been opened for work, and that
the two had begun work there without authorization from a supervi-
sor. However, Willson also admitted that Manley was a "leadman" on
the job, and that as such, he was responsible for making sure that his
crew members observed all relevant safety regulations.

The ALJ found that Manley and McVay were working at a height
of at least 75 feet without adequate protection, and that Manley's
knowledge of that lack of protection was imputed to Willson as a
result of Manley's supervisory authority. The ALJ also rejected Will-
son's defense of unforeseeable employee misconduct.

                    3




                                                   - 4 -
II.

Willson asserts several grounds for reversing the Commission's
order. We address each in turn.

A.

Willson first claims that the ALJ erred in admitting Anderson's
videotape of Manley and McVay because the tape was made in viola-
tion of the Fourth Amendment to the U.S. Constitution. Since the pos-
sible application of the Fourth Amendment's exclusionary rule to this
case involves a mixed question of law and fact, we review this issue
de novo.3

As Willson notes, the Fourth Amendment's protection against
unreasonable searches and seizures extends to commercial property,4
but, in addition, that protection must be premised on a "reasonable
expectation of privacy."5 Willson argues that it had such an expecta-
tion with regard to the Orlando construction site, and that therefore
Anderson's warrantless observation of that site was illegal. The Com-
mission found that there was no reasonable expectation of privacy
because, "[a]nyone on the side of the [Peabody] hotel facing the Civic
Center could observe the activities [on the Willson site] . . . ."6 We
agree.

Although surveillance is a type of search that can invoke Fourth
Amendment protections if performed unreasonably, we hold that
Anderson's long-distance observations were not unreasonable. What
Anderson's tape recorded was easily observable by anyone on one of
the hotel's upper stories, which seems to fall squarely within the basic
Fourth Amendment principle, restated by this court in Tarantino v.
Baker,7 that "a person has no `reasonable expectation of privacy'
_________________________________________________________________

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

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

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

6 J.A. at 325.

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

                    4



                                                 - 5 -
when he leaves conditions permitting a curious passerby to invade his
`private space.'"8 In addition, in addressing a similar situation in
which an OSHA compliance officer took still photographs of work at
a site before actually approaching the site and requesting an inspec-
tion, the Commission held that "there is no constitutional violation
when an inspector makes observations from areas on commercial
premises that are out of doors and not closed off to the public . . . ."9

Although, as Willson points out in its brief, the roof of the Peabody
Hotel was not completely open to the public, and Anderson did
employ a high powered lens in shooting the videotape, the crucial
aspect of the situation seems to be that Willson left the construction
site open to observation from vantages outside its control. As the
inquiry should focus on what sort of "expectation of privacy" Willson
had, we believe that a sustained view from a hotel across the street
is difficult to classify as an unreasonable intrusion into Willson's "pri-
vate space."10 That this sustained view was enhanced by the use of a
telephoto camera lens does not change this conclusion.11 Therefore,
_________________________________________________________________

8 Tarantino v. Baker, 825 F.2d 772, 776 (4th Cir. 1987) (quoting
United States v. Head, 783 F.2d 1422 (9th Cir. 1986)). Although
Tarantino involved a suit under 42 U.S.C. § 1983 and thus inquired into
whether the constitutional rule in question was"clearly settled," its dis-
cussion of what constitutes a "reasonable expectation of privacy" is
instructive.

9 Secretary of Labor v. Concrete Constr. Co., 15 O.S.H.C. 1614, 1617
(1992).

10 See Marshall v. Western Waterproofing Co., 560 F.2d 947, 950-51
(8th Cir. 1977). The Marshall court held that there was no Fourth
Amendment violation in a case where an OSHA inspector obtained
access to a private building to view adjacent repair scaffolding as "a per-
son who exercises control over premises may consent to a search and
evidence gathered in that search may be used against persons who did
not consent." Id. at 950 (citations omitted).

11 See Dow Chemical v. United States, 476 U.S. 227, 238 (1986)
(EPA's use of high-powered camera lenses in aerial surveillance did not
violate company's reasonable expectation of privacy because, despite the
fact that "they undoubtedly give EPA more detailed information than
naked-eye views," the photographs "remain limited to an outline of the
facility's buildings and equipment"). Such seems to be the case here.

                    5



                                                   - 6 -
we hold that there was no Fourth Amendment violation on which to
base an exclusion of the surveillance videotape.

B.

Willson also contends that the surveillance violated § 8(a) of the
Act ("§ 8(a)"). Specifically, Willson argues that § 8(a) requires that an
OSHA inspector present his credentials before any "inspection" of a
"factory, plant, establishment, construction site, or other area . . . ."12
Willson contends that this requirement extends to observations of
such areas, and that the surveillance thus violated § 8(a) because
Anderson did not present his credentials to the"owner, operator, or
agent in charge"13 of the Willson site. Again, we disagree with Will-
son's argument, and affirm the Commission's holding on this issue.

As the Commission made clear in its decision, § 8(a) is both
broader and narrower in scope than the Fourth Amendment. It is
broader in scope "because, even when the employer has consented to
a compliance officer's entry and thus waived any protection under the
Fourth Amendment, section 8(a)(2) may be violated if, for example,
the on-site inspection is not conducted at reasonable times, within rea-
sonable limits, and in a reasonable manner."14 In addition, the Com-
mission noted that § 8(a) is also narrower in scope than the Fourth
Amendment in that it requires an actual entry onto a site before its
protections are invoked.15 We believe that the Commission was cor-
rect in this characterization of § 8(a).

In full, § 8(a) provides that:

         In order to carry out the purposes of this chapter, the Secre-
         tary, upon presenting appropriate credentials to the owner,
         operator, or agent in charge, is authorized--

       (1) to enter without delay and at reasonable times
_________________________________________________________________

12 29 U.S.C. § 657(a)(1) (1994).

13 Id. § 657(a).

14 J.A. at 327.

15 Id.

                     6




                                                    - 7 -
         any factory, plant, establishment, construction site,
         or other area, workplace or environment where
         work is performed by an employee of an
         employer; and

         (2) to inspect and investigate during regular work-
         ing hours and at other reasonable times, and within
         reasonable limits and in a reasonable manner, any
         such place of employment and all pertinent condi-
         tions, structures, machines, apparatus, devices,
         equipment, and materials therein, and to question
         privately any such employer, owner, operator,
         agent, or employee.16

The Commission, at the Secretary's urging, read § 8(a)(1) as focusing
on the entrance onto a worksite, and thus concluded that it does not
apply to "off-site" observations such as the one in this case. We agree.

As the legislative history of the Act makes clear, § 8(a) was
designed "for government personnel to have the right of entry in order
to ascertain the safety and health condition and status of compliance
of any covered employing establishment."17 With this purpose in
mind, the legislative history indicates that § 8(a) deals with "the
inspector's presence" at a worksite, and refers exclusively to "physi-
cal inspection[s]" of such sites.18 Nothing in the statute or its legisla-
tive history indicates that § 8(a)'s requirements apply to non-
trespassory observations of worksites. In addition, as such an applica-
tion would only be found despite § 8(a)'s failure to speak "to the pre-
cise question at issue,"19 we must defer to the Secretary's clearly
reasonable interpretation of that provision.20 Therefore, we hold that
Anderson's surveillance did not violate § 8(a).
_________________________________________________________________

16 29 U.S.C. § 657(a) (1994).

17 S. Rep. No. 91-1282 (1970), reprinted in 1970 U.S.C.C.A.N. 5177,
5187 (emphasis added).

18 Id.

19 Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842
(1984).

20 Id. at 844.

                     7



                                                    - 8 -
C.

Further, we find without merit Willson's contention that the sur-
veillance violated Willson's "walk-around rights"21 under § 8(e) of the
Act ("§ 8(e)").22 Like § 8(a), § 8(e) applies to "physical inspections,"23
of worksites, and, as a result, "walk-around rights" would also seem
inapplicable to such long-distance observations. We are unpersuaded
by Willson's efforts to characterize the surveillance as an "hour
inspection," and are of the opinion that § 8(e) uses the term "physical
inspection" carefully, intending to denote an otherwise trespassory
entrance onto the inspectee's property. Thus, we find § 8(e) inapplica-
ble to this case.

D.

Based on the foregoing, we hold that the ALJ correctly admitted
the surveillance videotape into evidence.

III.

Willson next argues that the Commission incorrectly placed on
Willson the burden of showing that the conduct of Manley and
McVay was unforeseeable or unpreventable. Specifically, Willson
takes issue with the Commission's conclusion that, because a "super-
visory employee" committed the violations in question, the knowl-
edge of those violations should be imputed to Willson, and that it was
thus incumbent upon Willson to "establish that it made good faith
efforts to comply with the fall protection standards."24 Willson argues
that this finding is contrary to clearly established law, and we agree.

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

21 "Walk-around rights" refers to the inspectee's right to have the
OSHA inspector accompanied by one of the inspectee's employees dur-
ing the inspection.

22 29 U.S.C. § 657(e) (1994).

23 S. Rep. No. 91-1282 (1970), reprinted in 1970 U.S.C.C.A.N. 5177,
5187.

24 J.A. at 332.

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

                    8


                                                  - 9 -
despite a finding of knowledge of the violation on the part of a super-
visory employee, the Commission bore the burden of proving that the
supervisory employee's acts were not unforeseeable or unpreventable.26
In the present case, however, the Commission ignored this precedent,
and, having imputed knowledge of the violation because of Manley's
"Leadman" position, placed the burden of showing "good faith efforts
to comply with the fall protection standards" squarely on Willson.27
Because we find this burden-shifting in direct contravention of our
rule announced in Ocean Electric, we reverse the Commission's
decision.28

Although some sister circuits have held that unpreventable
employee misconduct "is an affirmative defense that an employer
must plead and prove,"29 this circuit and others clearly agree that such
must be disproved by the Secretary in his case-in-chief.30 That the
Secretary bears this burden is clearly the law of this circuit per Ocean
Electric, and we see no reason to change that here.
_________________________________________________________________

26 Ocean Elec. Corp. v. Secretary of Labor, 594 F.2d 396, 401 (4th Cir.
1979).

27 J.A. at 332. Significantly, the improper burden-shifting complained
of in Ocean Electric consisted of the Commission's requirement of a
"showing by the employer that the supervisory employee with knowl-
edge of the violation was himself adequately supervised with regard to
safety matters." Ocean Elec., 594 F.2d at 401 (citations omitted). We
find this requirement substantially similar to the one at issue in this case.

28 The Secretary contends that Ocean Electric should not apply here, as
Manley was accompanied by McVay, who was not a supervisory
employee. However, in so doing the Secretary ignores the fact that the
ALJ in this case found the prima facie case of a violation because of
Manley's status, and then placed on Willson the burden of rebutting with
the "affirmative defense" of employee misconduct, and the Commission
affirmed. J.A. at 289; 332.

29 New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98,
107 (2d Cir. 1996) (holding that unforeseeability and unpreventibility are
affirmative defenses and citing authority from the First, Fifth, Sixth,
Eighth, and Eleventh Circuits in support of this proposition).

30 See Ocean Elec., 594 F.2d at 401; Capital Elec. Line Builders v.
Marshall, 678 F.2d 128, 129 (10th Cir. 1982); Pennsylvania Power &
Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984); Mountain States
Tel. & Tel. Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980).

                     9

                                                   - 10 -
- 11 -
Ocean Electric's reasoning is consistent with the clear intent of the
Act.31 Therefore, we reaffirm its application in this circuit, and hold
that the Commission's burden-shifting in this case was error. Accord-
ingly, we reverse the Commission on this ground.

IV.

Willson also argues that the $7,000 fine levied by the Secretary
was excessive. However, as the Secretary notes, this allegation is pro-
cedurally barred, as 29 U.S.C. § 660(a) clearly states that, "[n]o objec-
tion that has not been urged before the Commission shall be
considered by the [reviewing] court, unless the failure or neglect to
urge such objection shall be excused because of extraordinary
circumstances."32 As the fine in question was clearly a part of the
ALJ's order,33 it could have been raised before the Commission but
was not.34 Therefore, having found no extraordinary circumstances to
excuse this omission, we hold that the fine cannot properly be consid-
ered here.

V.

Based on the foregoing, we reverse the Commission's order, and
remand the case for proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
_________________________________________________________________

31 See Ocean Electric, 594 F.2d at 399 (Congress clearly did not intend
employer to be insurer of employee safety: rather, employers are to pro-
mote such safety "as far as possible" (quoting 29 U.S.C. § 651)).

32 29 U.S.C. § 660(a) (1994).

33 J.A. at 294.

34 In its reply brief, Willson claims that the argument in its brief before
the Commission (not included in record) that the ALJ was in error "not
to vacate the citation in its entirety" constitutes the presentment of the
fine issue to the Commission. We disagree.

                    10




                                                   - 12 -
CAMPBELL, Senior Circuit Judge, concurring:

I agree with the court's able opinion, but, in repect to the determi-
native issue, I limit my agreement to the fact that Ocean Electric
Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979), is control-
ling precedent in this Circuit and appears in these circumstnaces to be
correctly applied in accordance with its terms. As a visitor, I see no
occasion to decide, and do not decide, whether, as the opinion states,
"Ocean Electric's reasoning is consistent with the clear intent of the
Act" and whether it is desirable to "reaffirm its application in this cir-
cuit."

                     11




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