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[DO NOT PUBLISH]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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