Summit Contractors Inc.

Read the official release (oshrc.gov)

Plain-English summary

Summit was the general contractor for a college dormitory project where a masonry subcontractor's employees worked on scaffolds without fall protection. OSHA cited Summit as a controlling employer even though Summit did not create the condition and none of its own employees were exposed. A two-member Commission majority read 29 C.F.R. § 1910.12(a) as preventing that use of OSHA's multi-employer citation policy against a non-creating, non-exposing employer. The majority vacated the citation, reversing the judge's decision that had affirmed it with a $2,000 penalty. Commissioner Rogers dissented and would have upheld the Secretary's authority to cite controlling general contractors.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.12(a); 29 C.F.R. § 1926.451(g)(1)(vii)
• Outcome: The Commission vacated the serious scaffold fall-protection citation and the $2,000 penalty.
• Key point: The majority held that § 1910.12(a) did not permit OSHA to cite Summit solely as a controlling employer when it neither created the hazard nor exposed its own employees.

Full text (OSHRC public release)

Summit Contractors, Inc., Docket No. 03-1622

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 03-1622

SUMMIT CONTRACTORS, INC.,

Respondent.

APPEARANCES:

Stephen D. Turow, Attorney; Ann Rosenthal, Counsel for Appellate Litigation;
Daniel J. Mick, Counsel for Regional Trial Litigation; Joseph M. Woodward,
Associate Solicitor; Howard M. Radzely, Solicitor; U.S. Department of Labor,
Washington, DC

For the Complainant

Robert E. Rader, Jr., Esq.; Rader & Campbell, Dallas, TX

For the Respondent

Arthur G. Sapper, Esq.; Robert C. Gombar, Esq.; James A. Lastowka, Esq.;
McDermott Will & Emery LLP, Washington, DC

For Amici National Association of Home Builders; Contractors’
Association of Greater New York; Texas Association of Builders; and
Greater Houston Builders Association

Victoria L. Bor, Esq.; Sue D. Gunter, Esq.; Sherman, Dunn, Cohen, Leifer &
Yellig, P.C., Washington, DC

For Amicus Building and Construction Trades Department, AFL-CIO

DECISION

Before: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.

BY RAILTON, Chairman:

At issue before the Commission is a decision of Judge Ken S. Welsch affirming a
citation issued to Summit Contractors, Inc. (“Summit”) for an alleged scaffolding
violation under 29 C.F.R. § 1926.451(g)(1)(vii).

Commissioner Thompson and I join in
vacating the citation in its entirety.

Background

Summit is a general building contractor with its corporate office located in
Jacksonville, Florida. In June 2003, Summit was the prime contractor for the
construction of a college dormitory in Little Rock, Arkansas. Summit employed only a
job superintendent and three assistant superintendents at the worksite. The
superintendents were responsible for coordinating the vendors, scheduling the work for
the various subcontractors, and ensuring that the work of the subcontractors was
performed according to contract. Summit subcontracted the project’s exterior brick
masonry work to All Phase Construction, Inc. (“All Phase”). All Phase workers used
scaffolding to perform their work.

On June 18 and 19, 2003, an Occupational Safety and Health Administration
(“OSHA”) Compliance Safety and Health Officer (“CSHO”) observed and photographed
All Phase employees who were not protected from falls working from scaffolds at 12-18
feet above the ground. The CSHO also observed other employees working from a
scaffold inside a building on June 19; these workers were also not protected against falls.
None of the exposed workers were employed by Summit. Summit did not create the
hazardous conditions observed by the CSHO. Some of Summit’s superintendents were
present at the worksite on June 18 and 19, and some of the instances were in plain view
of Summit’s trailer located on the worksite. Summit does not claim it lacked knowledge
of the violative conditions observed by the CSHO.

The CSHO did not perform a walkaround inspection, however, until June 24,
2003, when Summit’s safety officer could be present. At the time of the walkaround
inspection, the scaffolding violations the CSHO observed on June 18 and 19 had been
corrected. According to Summit’s project superintendent, Jimmy Guevara, he had
previously observed All Phase employees working on scaffolds that lacked guardrails.
Guevara had instructed All Phase to install guardrails two or three times prior to the
OSHA inspection. Each time, All Phase would address the violation but then fall out of
compliance when the scaffolding was moved to a different area.

Based on the CSHO’s observations on June 18 and 19, OSHA issued Summit a
citation for a violation of the construction safety standard set forth at
§ 1926.451(g)(1)(vii) as a “controlling” employer in accordance with the agency’s multi-employer worksite doctrine extant at the time. All Phase was also cited under the
doctrine as the employer who created the hazard and as the employer having employees
exposed to the hazard.

Before the judge, Summit argued that the multi-employer worksite doctrine is
invalid as to a general contractor who neither created, nor had employees exposed to, the
alleged and cited hazard. In other words, Summit challenged the Secretary’s application
of the doctrine to controlling contractors who have contractual authority over
subcontractors. Summit argued before the judge, and also contends on review, that the
doctrine as expressed in OSHA Directive CPL 2-0.124 (Multi-Employer Citation Policy)
is not enforceable because it is contrary to 29 C.F.R. § 1910.12(a) which states as
follows:

Standards. The standards prescribed in Part 1926 of this chapter are
adopted as occupational safety and health standards under section 6 of the
Act and shall apply, according to the provisions thereof, to every
employment and place of employment of every employee engaged in
construction work. Each employer shall protect the employment and
places of employment of each of his employees engaged in construction
work by complying with the appropriate standards prescribed in this
paragraph.

29 C.F.R. § 1910.12(a).

As the judge noted, Summit’s argument focuses on the second sentence of this
regulation. Specifically, Summit’s position is that because it had no employees exposed
to the hazard, and did not create the hazard, the regulation prohibits the issuance of a
citation to Summit for the hazard created by the subcontractor, All Phase. The judge
noted that the Commission has on numerous occasions applied the doctrine to controlling
employers like Summit and, therefore, rejected the argument. Among others, he cited the
Commission’s decision in Access Equipment Systems, Inc. , 18 BNA OSHC 1718, 1999
CCH OSHD ¶ 31,821 (No. 95-1449, 1999), and McDevitt Street Bovis, Inc. , 19 BNA
OSHC 1108, 2000 CCH OSHD ¶ 32,204 (No. 97-1918, 2000). As for the specific
argument relating to § 1910.12(a), the judge simply noted his view that the regulation
does not prohibit finding an employer responsible for the safety of employees of other
employers.

Discussion

In a decision rendered almost 31 years ago, the Commission stated that “the
general contractor is well situated to obtain abatement of hazards either through its own
resources or through its supervisory capacity.” Grossman Steel & Aluminum Corp. , 4
BNA OSHC 1185, 1188, 1975-76 CCH OSHD ¶ 20,691, p. 24,791 (No. 12775, 1976).
The Commission went on to say that “we will hold the general contractor responsible for
violations it could reasonably have expected to prevent or abate by reason of its
supervisory capacity.” Id. This holding was characterized as “ dictum ” in a footnote. Id.
at 1188-89 n.6, 1975-76 CCH OSHD at p. 24,791 n.6. Nevertheless, it took on a life of
its own during ensuing years as the Commission and some circuit courts relied on these
statements to find some general contractors in violation of construction safety standards
simply by virtue of their “supervisory capacity.”

See, e.g. , Universal Constr. Co. v.
OSHRC , 182 F.3d 726 (10th Cir. 1999); R.P. Carbone Constr. Co. v. OSHRC , 166 F.3d
815 (6th Cir. 1998); Brennan v. OSHRC ( Underhill Constr . Corp .), 513 F.2d 1032 (2d
Cir. 1975); McDevitt Street Bovis, Inc. , 19 BNA OSHC 1108, 2000 CCH OSHD ¶ 32,204
(No. 97-1918, 2000); Blount Int’l Ltd. , 15 BNA OSHC 1897, 1991-93 CCH OSHD
¶ 29,854 (No. 89-1394, 1992); Gil Haugan , 7 BNA OSHC 2004, 2006, 1979 CCH OSHD
¶ 24,105 (Nos. 76-1512 & 76-1513, 1979). Usually in these situations, the subcontractor
responsible for the creation of the hazard and who had employees exposed to the hazard
was also cited for the same violation.

The Commission, however, has been told in no uncertain terms by several courts
that it is not a policy setting agency. See, e.g. , Donovan v. A. Amorello & Sons, Inc. , 761
F.2d 61, 65 (1st Cir. 1985) (analyzing legislative history and determining that “Congress
did not intend OSHRC to possess broad powers to set policy . . .”); Marshall v. OSHRC
( IMC Chem . Group ), 635 F.2d 544, 547 (6th Cir. 1980) (“Whatever ‘policies’ the
Commission establishes are indirect. Only those established by the Secretary are entitled
to enforcement and defense in court.” (quoting Madden Constr. Inc. v. Hodgson , 502
F.2d 278, 280 (9th Cir. 1974))). According to these decisions, that function belongs to
the Secretary. See Madden Constr. , 502 F.2d at 280 (“[T]he Act imposes policy-making
responsibility upon the Secretary, not the Commission.”). The Secretary’s citation policy
on multi-employer construction worksites has a checkered history. Indeed, as the
doctrine developed over the years, the Secretary’s application and elucidation of her
enforcement policy has been anything but consistent. See IBP Inc. v. Herman ( IBP ), 144
F.3d 861, 865 n.3 (D.C. Cir. 1998) (detailing doctrine’s “checkered history”). An
analysis of the Secretary’s own guidelines regarding the doctrine show the myriad
changes in her interpretation as to how the doctrine should be applied. Cf. Martin v.
OSHRC ( CF & I Steel Corp .), 499 U.S. 144, 158 (1991) (reviewing court may consult
less formal means of interpreting regulations, such as the OSHA Field Operations
Manual, to determine whether the Secretary has consistently applied her position, a factor
in determining the reasonableness of Secretary’s position (citing Ehlert v. United States,
402 U.S. 99, 105 (1971))).

In its first Field Operations Manual (“FOM”) issued contemporaneously with
§ 1910.12(a), OSHA permitted the citation of employers who expose their own
employees to hazards as well as employers who create a hazardous condition or supply
hazardous equipment, whether or not their own employees were exposed. See OSHA
FOM p. VII-6-8 para. 10 (May 20, 1971). The manual was revised six months later to
remove the reference to employers who supply unsafe equipment. See OSHA
Compliance Operations Manual (“COM”) p. VII-7-8 para. 13 (Nov. 15, 1971).
Approximately three years later, OSHA again narrowed its citation policy. In July 1974,
OSHA amended the FOM, instructing compliance personnel to cite only an employer on
a construction site who has exposed his own employees to an unsafe condition. OSHA
FOM ¶ 4380.6 (July, 1974). In essence, OSHA eliminated any practice of making
multiple employers, other than exposing employers, responsible for the abatement of the
same hazard on construction sites. Indeed, OSHA instructed compliance personnel in
this revised version of the FOM, as follows: “An employer will not be cited if his
employees are not exposed or potentially exposed to an unsafe or unhealthful
condition—even if that employer created the condition.” Id. See also OSHA FOM ¶
4380.6 (Jan. 1, 1979) (identical language).

Four years later, OSHA again changed its interpretation of the doctrine. In the
revised 1983 version of the FOM, the Secretary announced that an employer on a multi-employer worksite could defend by showing that it did not create the hazard, could not
correct the hazard, and had made an effort to persuade the controlling employer to correct
the hazard, or had alerted employees to the dangers associated with the hazard. OSHA
FOM ¶ 265 (Apr. 18, 1983). This version of the FOM specified that compliance
personnel should cite the exposing employer(s), unless all exposing employers could
establish the defense. In that case, compliance personnel should cite the employer in the
best position to correct the hazard. Id. at ¶ 264-65. See also OSHA Instruction CPL
2.42B (June 15, 1989) (identical language).

Eleven years after that, OSHA again changed course and issued the multi-employer policy at issue in this case. In 1994, OSHA revised its compliance instructions
and issued a new manual called the Field Inspection Reference Manual or “FIRM”.
There, OSHA stated that citations should be issued not only to exposing employers, but
also to creating, controlling and correcting employers “whether or not their own
employees are exposed . . . .” OSHA Field Inspection Reference Manual (FIRM)
§ V.C.6 (Sept. 26, 1994). See also OSHA Instruction CPL 2-0.124 (Dec. 10, 1999)
(identical language; current multi-employer worksite doctrine).

In sum, OSHA issued § 1910.12(a) in May 1971, and almost simultaneously
stated a policy for issuing citations on construction sites. The employer exposing its
employees to hazards was to be cited, and employers who created or supplied hazardous
equipment could also be cited. OSHA altered this policy six months later to eliminate
citations to suppliers of faulty equipment. Citations to hazard-creating employers were
eliminated next in 1974, and it was not until 1983 that such employers were returned to
the mix, but only if every exposing employer had a defense. Then, in 1994, OSHA
changed its policy significantly to allow citation of essentially every employer who might
have some association with the hazard, i.e., the exposing employer, the creating
employer, the controlling employer, and the correcting employer—the one who could
abate the hazard. The Secretary never indicated the reasons behind her multiple changes
in policy. See Greater Boston Television Corp. v. FCC , 444 F.2d 841, 852 (D.C. Cir.
1971) (“agency changing its course must supply a reasoned analysis indicating that prior
policies and standards were being deliberately changed, not casually ignored”).
Furthermore, at no time throughout this period of over twenty years did the Secretary
ever note that § 1910.12(a) contains language which on its face is in apparent conflict
with the policy.

It is not as if this conflict has gone unnoticed by the courts or even the
Commission. As early as 1995, the United States Court of Appeals for the District of
Columbia Circuit noted a “marked tension” between the language of § 1910.12(a) and the
Secretary’s multi-employer policy. Anthony Crane Rental, Inc. v. Reich , 70 F.3d 1298,
1306-07 (D.C. Cir. 1995). The court went on to say: “Here, the relevant regulation by its
terms only applies to an employer’s own employees , seemingly leaving little room for
invocation of the [multi-employer] doctrine.” Id. at 1307 (emphasis in the original). The
court, after noting that the issue had not been briefed and had not been addressed by any
other court, left “to a later date the critical decision of whether to apply the multi-employer doctrine where an employer has been cited under . . . [§ 1910.12].” Id. In
1998, another panel of the same court similarly noted the tension between the regulation
and the policy. IBP , 144 F.3d at 865-66. It too determined that it was unnecessary to
decide the issue.

Id. at 866.

In a like manner, the Commission in two recent cases noted the existence of the
problem but, like the D.C. Circuit, declined to address it for not having been briefed. See
Access Equip. , 18 BNA OSHC at 1725 n.12, 1999 CCH OSHD at p. 46,780 n.12
(equipment supplier and installer was liable as such notwithstanding its defense that it
was not a contractor); McDevitt Street Bovis, Inc., 19 BNA OSHC at 1112-13, 2000 CCH
OSHD at p. 48,782-83 (general contractor was responsible for scaffold violation as a
controlling employer). As the judge pointed out here, Summit has raised the issue of the
conflict or tension between § 1910.12(a) and the existing multi-employer policy in this
and a number of other cases. While I firmly believe that cases should be disposed of on
narrow grounds wherever possible, I do not see how the issue raised by Summit can be
avoided in this case.

The problem I see is the one recognized by the court in Anthony Crane Rental,
Inc. : that the limitation in § 1910.12(a) making the compliance obligation of employers
for violations of standards applicable only to “ his employees ” precludes issuance of a
citation to a general contractor having none of its employees exposed to the hazard. See
Anthony Crane Rental , 70 F.3d at 1306-07. It seems to me that the checkered history of
the multi-employer doctrine as expressed in the Secretary’s ever-changing compliance
guidelines—be it the FOM, COM, CPL, or FIRM—taken in contrast with a regulation
which has not been amended since 1971, results in the latter trumping whatever reliance
the Commission can place on the varying nature of the policy. Cf. Christensen v. Harris
County , 529 U.S. 576, 587 (2000) (policy statements while “entitled to respect” are not
given Chevron deference like promulgated standards) (citing Chevron, USA, Inc. v.
NRDC , 467 U.S. 837 (1984)); Union Tank Car Co. , 18 BNA OSHC 1067, 1069, 1995
CCH OSHD ¶ 31,445, p. 44,470 (No. 96-0563, 1997) (in assessing reasonableness of
Secretary’s interpretation, Commission considers, inter alia , whether her interpretation
“‘sensibly conforms to the purpose and wording of the regulation[]’, taking into account
‘whether the Secretary has consistently applied the interpretation embodied in the
citation.’” (quoting CF & I Steel Corp. , 499 U.S. at 150, 157-58)).

I find unpersuasive the Secretary’s argument in this litigation that the first
sentence of the regulation permits or allows a broader class of employers, including those
not having employees exposed to the cited hazard, to be cited under the policy.

While I
may be sympathetic to such an argument, it simply does not explain why the Secretary
has sat on her hands for ten years after being alerted twice to the problem by the D.C.
Circuit in Anthony Crane and IBP . She even issued a compliance instruction in 1999
and, while iterating her policy adopted in 1994, failed to address the significant issue and
tension mentioned by the court. Beyond that, the Commission has alerted her to the issue
in both Access Equipment and McDevitt , yet the Secretary still did not act.

Moreover, to construe the first sentence of § 1910.12(a) as the Secretary argues in
this litigation is to ignore or eliminate the language “each of his employees” used in the
second sentence. See United States v. Menasche , 348 U.S. 528, 538-39 (1955) (“It is our
duty ‘to give effect, if possible, to every clause and word of a statute,’ rather than to
emasculate an entire section.” (citations omitted)). In other words, the Secretary
improperly suggests the meaning of the regulation would not change even if the words
“his employees” were missing. See AFL-CIO v. Chao , 409 F.3d 377, 384 (D.C. Cir.
2005) (“the court is obligated not only to construe the statute as a whole but to give
meaning to each word of the statute”). In my view, her interpretation is untenable. The
Commission must give effect to the plain language of the regulation, especially in the
face of the Secretary’s inconsistent doctrine. See Arcadian Corp. , 17 BNA OSHC 1345,
1347, 1995-97 CCH OSHD ¶ 30,856 p. 42,917 (statutory analysis ends if language is
plain), aff’d , 110 F.3d 1192 (5th Cir. 1997). See also FDIC v. Philadelphia Gear Corp. ,
476 U.S. 426, 438-39 (1986) (affording deference to agency’s contemporaneous
understanding of ambiguous term where understanding had been fortified by agency’s
consistent behavior over the following decades).

Order

For these reasons, I find the Secretary’s reliance on her multi-employer worksite
doctrine to cite Summit in this case to be impermissible given the contrary language of
her regulation at § 1910.12(a). Accordingly, based on this analysis and that set forth in
Commissioner Thompson’s concurring opinion, we vacate the citation.

SO ORDERED.

/s/  ______

W. Scott Railton

Chairman

Dated: April 27, 2007

THOMPSON, Commissioner, concurring:

In this case, the Secretary seeks to enforce the duty of a “controlling employer”
pursuant to her current multi-employer citation policy.

The citation alleges a violation
of a Part 1926 construction standard, 29 C.F.R. § 1926.451(g)(1)(vii), against
Summit Contractors, Inc. (“Summit”), a general construction contractor who, the
Secretary concedes, neither created the violative conditions nor exposed any of its
own employees to these conditions. For the separate reasons I state below, I join
Chairman Railton in vacating the citation because I conclude that 29 C.F.R. §
1910.12(a) prevents the Secretary from citing Summit in this case.

Discussion

My colleague Commissioner Rogers notes that Commission precedent establishes
that section 5 (a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655
(“OSH Act”), grants the Secretary broad discretion to promulgate a multi-employer
citation policy. See Arcadian Corp ., 17 BNA OSHC 1345, 1352, 1995-97 CCH OSHD
¶ 30,856, p. 42,918 (No. 93-3270, 1995), aff’d , 110 F.2d 1192 (5th Cir. 1997). In fact,
more than thirty years ago, the Secretary published, but then withdrew, a Federal
Register notice seeking comment on a proposed multi-employer citation policy. See 41
Fed. Reg. 17,639, 17,640 (Apr. 27, 1976).

However, having said that precedent grants the Secretary broad statutory
discretion to adopt and enforce specific standards does not a fortiori define the
limitations the Secretary voluntarily imposed on that discretion when she adopted a
specific standard or set of standards.

Thus, in this case, it remains to be resolved how
§ 1910.12(a) limits the discretion of the Secretary to issue citations for violations of 29
C.F.R. Part 1926 standards. Section 1910.12(a) states, in pertinent part:

The standards prescribed in Part 1926 of this chapter are adopted as occupational
safety and health standards . . . and shall apply, according to the provisions
thereof, to every employment and place of employment of every employee
engaged in construction work. Each employer shall protect the employment and
places of employment of each of his employees engaged in construction work by
complying with the appropriate standards prescribed in this paragraph.

29 C.F.R. § 1910.12(a).

The Secretary issued § 1910.12(a) pursuant to section 6(a) of the OSH Act in
order to adopt the Part 1926 standards originally enforced under the Contract Work
Hours and Safety Standards Act, 40 U.S.C. § 333 (“Construction Safety Act” or “CSA”).

See Coughlan Constr. Co. , 3 BNA OSHC 1636, 1638, 1975-76 CCH OSHD ¶ 20,106, p.
23,923 (Nos. 5303 & 5304, 1975). The scope and application provisions of § 1910.12(a)
define the “regulatory universe” to which those construction standards apply. See Reich
v. Simpson, Gumpertz & Heger, Inc. , 3 F.3d 1, 4-5 (1st Cir. 1993). Neither a reviewing
court nor the Commission has ever before sought to resolve the “marked tension”
between the Secretary’s multi-employer citation policy and § 1910.12(a). See Anthony
Crane Rental Inc. v. Reich , 70 F. 3d 1298, 1307 (D.C. Cir. 1995) (recognizing “the
marked tension” between the multi-employer citation policy and “the language of
§ 1910.12[(a)] . . . that ‘[e]ach employer shall protect the employment and places of
employment of each of his employees ,’” but failing to reach the issue).

I agree with my
colleagues that the Commission should address this “tension” herein, which has been
squarely presented, thoroughly briefed, and comprehensively analyzed during oral
argument.

Summit argues that the “his employees” phrase of the second sentence of
§ 1910.12(a) describes a construction employer’s duty that is limited to his own
employees. The Secretary argues that the first sentence describes a duty that is as broad
as the working conditions of all employees on the construction site, effectively ignoring
the “his employees” clause of the second sentence. To avoid the dilemma described in
the Hindu parable of the blind observers disagreeing about the shape of an elephant after
each grasped only his trunk, tusk or leg, I would not limit my perception of possible
reasonable interpretations of the scope and application of § 1910.12(a) by focusing on
only one clause or sentence. Read together, the two sentences of the regulation require
an employer to “protect the employment and places of employment of each of his
employees . . . by complying with [Part 1926 standards]” applicable to “every
employment and place of employment of every employee engaged in construction work.”
See 29 C.F.R. § 1910.12(a). Reading the provision in a manner consistent with the
universal interpretation of the general duty clause,

it is clear and unambiguous on the
face of the regulation that the duty of a construction employer under § 1910.12(a) is
owed to protect only “his employees”, permitting only an employment-based
enforcement scheme. What remains to be determined is whether a “controlling
employer” theory of liability, defined by the Secretary as an enforcement scheme
grounded in contract or quasi-contract, fits within the full scope and application of this
“employment-based” duty under § 1910.12(a) of a construction employer to “protect . . .
his employees” by complying with the Part 1926 standards.

The full scope and application of the construction employer’s § 1910.12(a)
employment-based duty can be determined by analyzing the agency’s original intent
when it drafted and began enforcement of the regulation. See Am. Waterways Operators,
Inc. v. United States , 386 F. Supp. 799, 803-04 (D.D.C. 1974) (construction of act by the
agency charged with its administration is accorded great weight if reasonable, but “of
higher significance” is the construction of the act by those who participated in the act’s
drafting and who directly made their views known to Congress), aff’d , 421 U.S. 1006
(1975). The first construction of a new act by the body charged with enforcing it is
“entitled to more than usual deference accorded an agency’s interpretation” of an act or
regulation. See Power Reactor Dev. Co. v. Int’l Union of Elec. Workers , 367 U.S. 396,
408 (1961) (contemporaneous construction “by the men charged with the responsibility
of setting its machinery in motion” is entitled to particular respect); Nat’l Cable
Television Ass’n v. Copyright Royalty Tribunal , 689 F.2d 1077, 1081 (D.C. Cir. 1982)
(affording “more than the usual deference due an agency’s interpretation of its enabling
act” to Copyright Royalty Tribunal’s reading of the Copyright Act because it “was the
first construction of a new act by the body charged with the responsibility for setting its
machinery in motion.”). The regulation’s preamble says nothing about the Secretary’s
original intent. See 36 Fed. Reg. 10,466 (May 29, 1971). However, the Secretary did
indicate her original intent to limit enforcement of Part 1926 standards, through
promulgation of § 1910.12(a), against a class of employers similar to non-creating non-exposing “controlling employers” as defined in the Secretary’s current multi-employer
citation policy. Her intent is evident in two distinct actions: First, the Secretary excluded
the Construction Safety Act duties of the prime (general) contractor, which are parallel to
“controlling employer” duties, when she adopted the Construction Safety Act standards
as OSH Act standards. Second, the Secretary precluded enforcement of any duties
against the general contractor parallel to “controlling employer” duties when she issued
the original enforcement guidelines directing citations at multi-employer construction
sites.

The first demonstration of the Secretary’s original intent is the striking contrast
between the language of the second sentence of § 1910.12(a), which imposes an OSH
Act duty on construction employers to protect their own employees through compliance
with Part 1926 standards, and the language of § 1926.16, which imposed a Construction
Safety Act duty on prime (general) contractors to protect the employees of subcontractors
through assuring their compliance with the same standards. Indeed, contrary to the
assertion of my colleague Commissioner Rogers at footnote 4, § 1910.12(a) was plainly
intended as a limit. It was intended to limit the Secretary’s discretion to impose under
the OSH Act the duty under the CSA of prime (general) contractors at construction sites.
The Secretary’s intent to limit her discretion to enforce the adopted standards is clear
from the dramatic distinction between what the Secretary had written as CSA regulations
and standards, and the limited parts she adopted through § 1910.12(a). On May 29, 1971,
in accordance with section 6(a) of the OSH Act, the Secretary promulgated § 1910.12.
Section 1910.12 adopted as occupational safety and health standards those standards that
had been issued under the Construction Safety Act in 29 C.F.R. Part 1518 (now 29 C.F.R.
Part 1926).

Through § 1910.12, the Secretary made “the standards (substantive rules)”
published in Subpart C of Part 1926 applicable to construction employers in general, but
left Subparts A and B of Part 1926 applicable only to federal contractors. Notably,
§ 1926.16 in Subpart B, expressly imposes liability on the prime (general) contractor for
violations by subcontractors. The failure of the Secretary to adopt § 1926.16 through
§ 1910.12,

or to use similar language when describing an employer’s duties under the
OSH Act in § 1910.12(a), is indication that she intended the duties of an employer (in
this case, a prime (general) contractor) under the OSH Act to be more limited than the
duties of a prime (general) contractor under the Construction Safety Act. Commissioner
Rogers’ footnote 4 is correct to the extent she concedes the text of § 1910.12(c) is a clear
statement of the reason for the Secretary’s failure to incorporate Subparts A and B of
1926, i.e. , the contractually-based enforcement scheme of the CSA was inconsistent with
the Secretary’s construction of an employment-based enforcement scheme under the
OSH Act. This concedes the point that if the Secretary had originally intended to
exercise discretion under section 5(a)(2) of the OSH Act to cite general contractors at
multi-employer construction sites on a contractually-based

“controlling employer”
theory, she could have done so by adopting the enforcement scheme of § 1926.16, absent
the federal contractor predicate, pursuant to section 6(a) of the OSH Act.

The second demonstration of the Secretary’s original intent is the exclusion of a
“controlling employer” basis for citations from the Secretary’s original multi-employer
citation policy. Almost simultaneously with the promulgation of § 1910.12(a), the
Secretary adopted her first Field Operations Manual (“FOM”), originally called the
“Compliance Operations Manual”.

The FOM published guidelines for OSHA’s field
officers charged with conducting workplace inspections to enforce, inter alia, Part 1926
standards. According to the original FOM, an employer may be cited at a multi-employer construction worksite for exposing its own employees to a hazard, even if it did
not create the hazard, p.VII-7 ¶ 10c; or by creating a hazard, even if it did not expose its
own employees to that hazard, p.VII-7 ¶ 10b. The simultaneous production by OSHA of
two separate documents (the FOM and § 1910.12(a)), both limiting the Secretary’s
enforcement of Part 1926 standards, cannot be dismissed as a mere unrelated
“coincidence.” The May 1971 FOM is an indicator of the original intent of the drafters
of § 1910.12(a) because: (1) the Secretary contemporaneously drafted both § 1910.12(a)
and the FOM guidelines for enforcement of the safety and health standards that were
adopted by § 1910.12(a); (2) the enforcement guidelines in the FOM could not yet have
been influenced by interpretations of the Secretary’s citation authority by the newly-formed Occupational Safety and Health Review Commission; and (3) the FOM explicitly
included guidelines for citations, inter alia , at multi-employer construction sites under
the very standards adopted by § 1910.12(a). The original FOM, as well as the
amendment to the FOM six months later, both set forth the two duties of an employer at a
multi-employer construction worksite: (1) to not expose its employees to a hazard; and
(2) to not create violative conditions.

I find it dispositive to a determination of the scope and application of the
employer’s duty to “protect … his employees” under § 1910.12(a) that not only did the
Secretary fail to adopt the “controlling employer” concept from the CSA when she
adopted its body of standards, neither did she in her original enforcement guidelines
direct field personnel to cite non-creating, non-exposing, controlling employers at a
multi-employer construction worksite. In fact, during the next dozen years of
enforcement of the OSH Act—one-third of OSHA’s statutory life—official agency
guidelines made it clear that the Secretary’s power to cite an employer at a multi-employer worksite extended only to creating or exposing employers; controlling
employers were never mentioned. See OSHA Compliance Operations Manual (“COM”)
p. VII-7-8 para. 13 (Nov. 15, 1971) (citation of creating or exposing employers); OSHA
FOM ¶ 4380.6 (July, 1974) (citation of exposing employers only); OSHA FOM ¶ 4380.6
(Jan. 1, 1979) (same). It was not until 1983, twelve years after the Act’s effective date,
that OSHA for the first time directed its compliance officers to consider citation of a
controlling employer. See OSHA FOM ¶ 265 (Apr. 18, 1983). That expansion then was
limited to the narrow circumstances where a general contractor is informed of, but fails to
abate, a hazard that cannot be abated by any exposing employer.

The Commission will normally defer to the Secretary’s reasonable interpretation
of a regulation. See Martin 499 U.S. at 150. I find the Secretary’s original multi-employer citation policy, allowing citation of creating as well as exposing employers, is
consistent with § 1910.12(a)’s requirement that an employer must “protect the
employment and places of employment of his employees”. It also comports with the
purpose of the Act.

The creation of violative employment conditions puts all
employees at risk. Here I agree with the statement made at oral argument by Summit’s
amicus that the Secretary recognized when she drafted § 1910.12(a) and the original
FOM that reasonably predictable exposure generally runs with creation of a hazard.

On
the other hand, as Chairman Railton adequately explains, deference to OSHA’s
“checkered history” of reinterpretation of the multi-employer citation policy after 1971
would yield an inconsistent, and therefore unreasonable interpretation of § 1910.12(a). 
Moreover, the Secretary cannot in this case simply ignore a regulatory limitation on her
discretion, albeit that it was voluntarily imposed. As the regulation now exists, the
agency has ab initio limited its discretion to expand the duties of employers beyond those
duties originally intended when the Secretary adopted the Part 1926 standards. Unless
and until the agency modifies or repeals the employment-based limitations imposed by
the regulation, it may not by simple policy directive remove the substantive limitations
on official discretion that now exist. In Vitarelli v. Seaton , the Supreme Court held that
even agencies with broad discretion must adhere to internally promulgated regulations
limiting the exercise of tha t discretion. Vitarelli v. Seaton , 359 U.S. 535, 539-40 (1959).
See also Graham vs. Ashcroft , 358 F.3d 931, 932 (D.C. Cir 2004) (“It is well settled that
an agency, even one that enjoys broad discretion, must adhere to voluntarily adopted,
binding policies that limit its discretion.” (citing Padula vs. Webster , 822 F.2d 97, 10
(D.C. Cir. 1987))).

In this case, it is undisputed that Summit is a non-creating, non-exposing
employer.  In other words, the only basis for issuing the citation to Summit is that
Summit is a “controlling employer” under the Secretary’s current multi-employer citation
policy.  As explained above, however, I find § 1910.12(a) cannot be interpreted to permit
citation for a violation of a Part 1926 standard of a controlling employer who neither
created the violative conditions nor exposed his employees to the hazard.

Conclusion

For the foregoing reasons, I concur with the Chairman’s conclusion that
§ 1910.12(a) prevents the Secretary from enforcing her current multi-employer citation
policy to cite a non-exposing non-creating employer such as Summit, for violation of
§ 1926.451(g)(1)(vii). Therefore, I join Chairman Railton in vacating the citation.

/s/  ______

Horace A. Thompson, III

Dated: April 27, 2007                                                      Commissioner

ROGERS, Commissioner, dissenting:

By their decision today, my colleagues have reversed over thirty years of
Commission precedent that has had the effect of enhancing worker safety on construction
worksites with multiple employers. In voting as they have to eliminate the Secretary’s
ability to cite general contractors under her multi-employer enforcement policy, my
colleagues have deprived the Secretary of a very important tool to hold accountable those
often in the best position to ensure safety on construction worksites.

The rejection of the multi-employer precedent has at least three additional
undesirable results. First, it usurps for the Review Commission the Secretary’s policy-making role under the Occupational Safety and Health Act (“the Act”). Second, it
trivializes the Secretary’s prosecutorial discretion and ability to develop and refine
enforcement policies consistent with the Act. Finally, it de-stabilizes a body of law that,
while not perfect or totally comprehensive, offers rationality and predictability.

I would uphold the long-standing precedent and continue to recognize the
Secretary’s authority to cite general contractors under her multi-employer enforcement
policy.

Overview - The Multi-employer Construction Worksite Doctrine

For over thirty years, the Commission has affirmed the validity of the multi-employer construction worksite doctrine. As described by the Commission, this doctrine,
rooted in the Act, the principles of the common law, and the realities of the construction
workplace, provides that:

[A]n employer who either creates or controls the cited hazard has a duty
under [section] 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not
only its own employees, but those of other employers “engaged in the
common undertaking.” Anning-Johnson Co. , 4 BNA OSHC 1193, 1199,
1975-76 CCH OSHD ¶ 20,690, p. 24,784 (No. 3694, 1976); Grossman
Steel [ & Aluminum Corp. ], 4 BNA OSHC [1185], 1188, 1975-76 CCH
OSHD [¶ 20,691], p. 24,791 [(No. 12775, 1976)]. Specifically, the
Commission has concluded that an employer may be held responsible for
the violations of other employers “where it could reasonably be expected
to prevent or detect and abate the violations due to its supervisory
authority and control over the worksite.” Centex-Rooney [ Constr. Co. ], 16
BNA OSHC [2127], 2130, 1993-95 CCH OSHD ¶ 30,621, p. 42,410 [(No.
92-0851, 1994)].

McDevitt Street Bovis, Inc. , 19 BNA OSHC 1108, 1109, 2000 CCH OSHD ¶ 32,204, p.
48,780 (No. 97-1918, 2000) ( McDevitt ).

A.    The Act, Commission Precedent, and Circuit Court Precedent All
Support the Secretary’s Authority to Apply the Multi-employer Worksite
Doctrine.

Respondent would have the Commission believe that there is simply no legal
authority for the Secretary’s use of the multi-employer doctrine and that it was invented
out of whole cloth. Notwithstanding Respondent’s view of what the law should look
like, over the last thirty years, this Commission and most of the circuit courts that have
considered the doctrine have repeatedly affirmed the validity of the Secretary’s authority
and discretion to apply the multi-employer doctrine at construction worksites. See
McDevitt , 19 BNA OSHC at 1111-12, 2000 CCH OSHD at p. 48,782. The Secretary’s
authority to apply the doctrine under the Act has been repeatedly affirmed with respect to
at least three classes of employers: exposing employers, see, e.g. , Bratton Corp ., 6 BNA
OSHC 1327, 1978 CCH OSHD ¶ 22,504 (No. 12255, 1978), aff’d , 590 F.2d 273 (8th Cir.
1979); Grossman Steel , 4 BNA OSHC 1185, 1975-76 CCH OSHD ¶ 20,691 (No. 12775,
1976); Anning-Johnson , 4 BNA OSHC 1193, 1975-76 CCH OSHD ¶ 20,690 (No. 3694,
1976) (consolidated); creating employers, see, e.g. , Beatty Equip. Leasing , Inc. , 4 BNA
OSHC 1211, 1975-76 CCH OSHD ¶ 20,694 (No. 3901, 1976), aff’d , 577 F.2d 534 (9th
Cir. 1978); and, at issue here, controlling employers (usually general contractors), see
Knutson Constr. Co ., 4 BNA OSHC 1759, 1976-77 CCH OSHD ¶ 21,185 (No. 765,
1976), aff’d , 566 F.2d 596 (8th Cir. 1977).

The doctrine reflects a valid use of the Secretary’s enforcement authority under
the Act. An employer’s duties under the Act stem from section 5(a). Anning-Johnson
Co. v. OSHRC , 516 F.2d 1081, 1084 (7th Cir. 1975) (employer’s duty flows from
section 5(a)(1) and (2)). In particular, section 5(a)(2) states broadly that an employer
“shall comply with . . . standards,” thus indicating a duty to comply with specific OSHA
standards for the benefit of all employees on a worksite. See 29 U.S.C. § 654(a)(2);
United States v. Pitt-Des Moines, Inc. , 168 F.3d 976, 982-83 (7th Cir. 1999).

In contrast, under section 5(a)(1), the general duty clause, an employer is required
to “furnish to each of his employees employment and a place of employment which are
free from recognized hazards that are causing or likely to cause death or serious physical
harm to his employees. ” 29 U.S.C. § 654(a)(1) (emphasis added). The use of the phrase
“his employees” delineates that the general duty imposed by section 5(a)(1) is
specifically limited to an employer’s own employees. See Pitt-Des Moines, 168 F.3d at

982. See also S. Rep. No. 1282, 91st Cong., 2d Sess. 9 (1970), reprinted in Senate
     Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the
     Occupational Safety and Health Act of 1970 , at 149; H.R. Rep. No. 1291, 91st Cong., 2d
     Sess. 21 (1970), Leg. Hist., at 851. See also Pitt-Des Moines , 168 F.3d at 983 (“Where
     Congress includes particular language in one section of a statute but omits it in another
     section of the same Act, it is generally presumed that Congress acts intentionally and
     purposefully in the disparate inclusion or exclusion.” (quoting Russello v. United States ,
     464 U.S. 16, 23 (1983))); Marshall v Knutson Constr. Co. , 566 F.2d 596, 599 (8th Cir.
     1977) ( per curiam ) ( Knutson ); Teal v. E.I. DuPont de Nemours & Co. , 728 F.2d 799, 804
     (6th Cir. 1984) ( Teal ); Beatty Equip. Leasing, Inc. v. Sec’y of Labor , 577 F.2d 534, 536-37 (9th Cir. 1978) ( Beatty ).

Moreover, the Secretary’s authority under the doctrine is supported by the Act’s
broad purpose, set forth at section 2(b) of the Act, 29 U.S.C. § 651(b), “to assure so far as
possible every working man and woman in the Nation safe and healthful working
conditions” (emphasis added). See Pitt-Des Moines, 168 F.3d at 983; Knutson, 566 F.2d
at 600 n.7; Teal , 728 F.2d at 803; Beatty , 577 F.2d at 537; Brennan v. OSHRC (Underhill
Constr. Co.) , 513 F.2d 1032, 1038 (2d Cir. 1975) ( Underhill ). In addition, section
2(b)(1), 29 U.S.C. § 651(b)(1), states that an additional purpose of the Act is to
encourage the reduction of hazards to employees “at their places of employment,”
indicating the Act’s focus was on making places of employment safe from work related
hazards. See Pitt-Des Moines , 168 F.3d at 983; Underhill , 513 F.2d at 1038. Thus,
“once an employer is deemed responsible for complying with OSHA regulations, it is
obligated to protect every employee who works in its workplace.” See Pitt-Des Moines ,
168 F.3d at 983 (quoting Teal , 728 F.2d at 805 (emphasis added)).

More specifically, both the Commission and the courts have upheld the
Secretary’s use of her authority under the Act to hold a general contractor liable under
the doctrine “for violations it could reasonably have been expected to prevent or abate by
reason of its supervisory capacity,” because of the general contractor’s unique position of
control over the construction site and authority to obtain abatement. See Grossman Steel ,
4 BNA OSHC at 1188, 1975-76 CCH OSHD at p. 24,791. Three circuits have
specifically applied the doctrine to cases involving such controlling employers. See
Universal Constr. Co. v. OSHRC , 182 F.3d 726, 727-32 (10th Cir. 1999) ( Universal );
R.P. Carbone Constr. Co. v. OSHRC , 166 F.3d 815, 817-19 (6th Cir. 1998) ( Carbone );
Knutson , 566 F.2d at 597-98 (8th Cir. 1977) (Commission’s decision that general
contractor had duty with respect to subcontractor’s safety violations but that, in this case,
general contractor lacked sufficient control to be held liable was “reasonable and . . .
consistent with the purpose of the Act.”). See also Bratton Corp. v. OSHRC , 590 F.2d
273, 276 (8th Cir. 1979) (discussing circuit’s previous approval of application of multi-employer doctrine to general contractor in Knutson ).

Indeed, it is the unique position of the general contractor—whose main function
is to supervise the work of subcontractors—that gives it the control to ensure hazard
abatement. See Knutson , 566 F.2d at 599 (general contractors have “the responsibility
and the means to assure that other contractors fulfill their obligations with respect to
employee safety where those obligations affect the construction worksite”); Universal ,
182 F.3d at 730 (as practical matter, general contractor may be only on-site person with
authority to compel OSHA compliance); Carbone , 166 F.3d at 818 (6th Cir. 1998) (it is
presumed that general contractor has enough control over subcontractors to require that
they comply with OSHA standards). See also Recent Case, Administrative Law –
Occupational Safety & Health Act – On Multiemployer Jobsite, When Employees of any
Employer are Affected by Noncompliance with a Safety Standard, Employer in Control of
Work Area Violates Act; Employer Not in Control of Work Area Does Not Violate Act,
Even If His Own Employees Are Affected, Provided the Hazard is “Nonserious,” 89
Harv. L. Rev. 793, 797 (1976) (person controlling work area in best position to prevent
hazards). As noted in Universal , at times it is only the general contractor who can ensure
that compliance takes place. Universal , 182 F.3d at 730. As such, the congressional
command in section 5(a)(2) of the Act would be a dead letter unless it also ran to a
general contractor with supervisory control over the worksite. It is important to
emphasize, however, as I previously pointed out in McDevitt , that the general
contractor’s liability under the doctrine is not without limits. See McDevitt , 19 BNA
OSHC at 1109 n.3, 2000 CCH OSHD at p. 48,779 n.3 (Rogers, Commissioner, noting
that liability of general contractor is based on reasonableness standard and is “far from
strict liability”). See also Knutson , 566 F.2d at 601 (general contractor’s duty depends on
what measures are commensurate with its degree of supervisory capacity).

B.    Section 1910.12(a) Does Not Limit the Secretary’s Authority to Cite
Controlling Employers Under the Act

Notwithstanding this long-standing precedent, my colleagues—like
Respondent—now seek to turn back the clock and rewrite history more to their liking.
Although the Commission has apparently never viewed it as such over the thirty years it
has applied the doctrine, my colleagues now seem to separately suggest that 29 C.F.R. §
1910.12(a) should be viewed as a self-imposed limit on the Secretary’s authority under
section 5(a)(2) of the Act to utilize the multi-employer policy.

The rather sparse preamble gives no indication that § 1910.12(a) was at all
intended to address multi-employer situations. See 36 Fed. Reg. 10,466 (May 29, 1971).
Indeed, other than my colleagues’ pure speculation, based on a coincidence in timing,
there is no evidence that § 1910.12(a) was intended as a limit on an employer’s duty to
comply with construction standards, a duty which derives directly from section 5(a)(2) of
the Act.

See Universal , 182 F.3d at 728-30. The Commission should not effectively
reverse over thirty years of precedent and rewrite history based on rank speculation.
Similarly, there is no indication that the multi-employer policy was intended as an
interpretation of § 1910.12(a), as my colleagues separately seem to suggest. Rather, as
the Commission and the courts have continuously held, the multi-employer policy
represents the Secretary’s expression of how she intends to exercise her permissible
prosecutorial discretion within the parameters allowed by the Act itself. Limbach Co. , 6
BNA OSHC 1244, 1245, 1977-78 CCH OSHD ¶ 22,467, pp. 27,080-81 (No. 14302,
1977) (multi-employer policy represents general statement of policy for guidance of
inspectors). See Universal , 182 F.3d at 730 (Secretary’s interpretation of section 5(a)(2)
consistent with Act).

Contrary to the suggestion by my colleagues, it is for this same reason that
rulemaking was not required here because the multi-employer worksite doctrine is not a
substantive rule, but merely an interpretation of the OSH Act and recognition of the
obligations already contained therein. See Universal , 182 F.3d at 728 n.2 (employer’s
position that rulemaking was required before applying multi-employer worksite doctrine
“clearly is incorrect”); Limbach Co. , 6 BNA OSHC 1245, 1977-78 CCH OSHD at pp.
27,080-1 (multi-employer worksite doctrine is not substantive rule). Accordingly, given
the case law, there was no need for the Secretary to initiate a rulemaking merely to
respond to dicta in court and Commission decisions. Furthermore, Summit was on ample
notice of its possible liability because the doctrine is well-established and has been in
existence for many years. See Universal , 182 F.3d at 728 n.2 (noting doctrine’s long
history).

To the extent the Secretary has clarified the details of the policy over the years,
those clarifications merely reflect adjustments in how the Secretary has chosen to
exercise her permissible prosecutorial discretion, within the bounds of the Act and
informed by her experiences in enforcing the Act. After all, such policy guidelines
“‘merely announce[] [the Secretary’s] tentative intentions for the future, leaving himself
free to exercise his informed discretion.’” See Sec’y of Labor v. Twentymile Coal Co. ,
456 F.3d 151, 159 (D.C. Cir. 2006) (citation omitted) ( Twentymile ). As the Secretary
correctly points out, to some extent, the Secretary has even altered the application of her
policy in response to decisions of the Commission. Resp. Br. for the Sec’y of Labor,
Summit Contractors, Inc., Docket No. 03-1622, at p. 26 n.14. See also 41 Fed. Reg.
17,639 (Apr. 27, 1976) (Secretary discusses evolution of multi-employer case law);
Recent Case, Administrative Law – Occupational Safety & Health Act – On
Multiemployer Jobsite, When Employees of any Employer are Affected by
Noncompliance with a Safety Standard, Employer in Control of Work Area Violates Act;
Employer Not in Control of Work Area Does Not Violate Act, Even If His Own
Employees Are Affected, Provided the Hazard is “Nonserious,” 89 Harv. L. Rev. 793,
797 n.34 (1976) (discussing possible changes in Secretary’s multi-employer policy in
response to Commission and court decisions). It is highly ironic for my colleagues to use
those Commission-driven changes against her.

In claiming that the Secretary has been inconsistent because her policy has
evolved over the years, my colleagues have a fundamental misunderstanding of
enforcement guidelines and seek to impose on the Secretary an inappropriate straitjacket
that would deprive her of the ability to make adjustments in her enforcement policies.
My colleagues even suggest that the Secretary recognized she lacked the authority to cite
controlling employers because she did not seek to cite them in her first enforcement
policy. There is a significant difference between an agency not exercising the full scope
of its statutory authority for reasons of enforcement discretion and an agency explicitly
recognizing that it lacks statutory authority. I am not aware that the Secretary has ever
taken the position that she lacked the authority to cite controlling employers. See Kaspar
Wire Works, Inc. v. Sec’y of Labor , 268 F.3d 1123, 1131 (D.C. Cir. 2001) (Secretary had
never taken position that she lacked authority to issue per-instance penalties).

In any event, courts have recognized the danger of “transmogrify[ing]” written
guidelines that aid an agency’s exercise of discretion into binding norms, as my
colleagues inappropriately seek to do here. See Comty. Nutrition Inst. v. Young , 818 F.2d
943, 949 (D.C. Cir. 1987). Unfortunately, this “pernicious” practice of denying the
Secretary her lawful prosecutorial discretion, second guessing her legitimate policy
choices, and “substitut[ing] its views of enforcement policy for those of the Secretary” is
becoming all too common.

See Twentymile , 456 F.3d at 158. Indeed, were my
colleagues to have their way, the Secretary would be required to embark on a series of
never-ending rulemakings merely to maintain her statutory authority.

Even assuming, arguendo , that my colleagues are right about § 1910.12(a) as
having some relevance to the Secretary’s multi-employer citation authority under section
5(a)(2) of the Act, I would read paragraph (a), taken as a whole, as ambiguous. The first
sentence makes clear that the construction standards apply to the “place of employment
of every” construction employee and is similar in breadth to section 5(a)(2) of the Act.
Thus, to the extent a general contractor exercises control over such a place of
employment (and recognizing in some cases that only the general contractor can ensure
safety compliance), it is reasonable to read the regulation as imposing on that controlling
general contractor a duty to comply with the specific construction standards which apply
to that place of employment. Read in this context, the second sentence merely
emphasizes the primary responsibility of the direct employer to comply with the
appropriate standards, but it is not drafted as a limitation, does not by its terms impose
the duty exclusively on the direct employer (i.e., it does not say “[e]ach employer shall
protect the employment and places of employment of only each of his employees . . .”),
and is not inconsistent with the more generalized duty imposed by the first sentence and
its statutory analog, section 5(a)(2) of the Act.

My colleagues suggest that § 1910.12(a) should be interpreted in a manner similar
to section 5(a)(1) of the Act, in light of the reference in the second sentence of the
regulation to “each of his employees.” But they appear to overlook the fact that section
5(a)(1) of the Act lacks the broad first sentence—similar in breadth to section
5(a)(2)—which appears in § 1910.12(a) of the regulation. Indeed, in that respect, §
1910.12(a) is more akin to sections 5(a)(1) and 5(a)(2) of the Act combined .
Accordingly, the two sentences of § 1910.12(a) must be read together and in the context
of the duty imposed by section 5(a)(2) of the Act.

Thus, to the extent that § 1910.12(a) might be viewed as having some relevance
to the Secretary’s multi-employer citation authority under the Act, I would defer to the
Secretary’s reasonable and longstanding interpretation of § 1910.12(a) as permitting her
to cite controlling contractors under the multi-employer doctrine. See Martin v. OSHRC ,
499 U.S. 144 (1991).

Conclusion – We Should Uphold Long-standing Precedent

As discussed above, and as recognized by many courts, it is often only the general
contractor who can ensure safety and OSHA compliance at a construction site populated
by an array of subcontractors, particularly in the context of a dispute among
subcontractors. By freeing the general contractor of any safety compliance obligations as
the controlling employer, my colleagues have ensured that there will be numerous
situations where no one on a construction site will have both the practical ability and
legal obligation to ensure safety compliance. With respect to those situations, they are
reading section 5(a)(2) out of the Act and are creating a dangerous “no-man’s land” of
safety non-compliance.

For the reasons stated, I would not rewrite thirty years of history. I would
maintain our long-standing precedent and continue to hold that the Secretary has the
lawful authority to apply the multi-employer doctrine to general contractors at
construction worksites. In the context of over thirty years of precedent, I cannot join
those who would reverse that precedent and further straitjacket the Secretary’s lawful
exercise of prosecutorial discretion in protecting worker safety.        

I respectfully dissent.

/s/

Thomasina V. Rogers

Commissioner

Dated: April 27, 2007

Secretary of Labor,

Complainant,

v.

OSHRC Docket No. 03-1622

Summit Contractors, Inc.,

Repsondent.

Appearances:

Robert C. Beal, Esquire                                    Robert E. Rader, Esquire

Office of the Solicitor                                       Rader &Campbell

U. S. Department of Labor                               Dallas, Texas

Dallas, Texas                                                                For Respondent

For Complainant

Before: Administrative Law Judge Ken S. Welsch

DECISION AND ORDER

Summit Contractors, Inc. (Summit), contests a serious citation for
violation of 29 C.F.R. § 1926.451(g)(1)(vii) issued on August 25, 2003, by the
Occupational Safety and Health Administration (OSHA). The citation alleges that
Summit, as the general contractor for the construction of a college dormitory in Little
Rock, Arkansas, failed to ensure that employees of a masonry subcontractor were
utilizing fall protection while working on scaffolds in excess of 12 feet above the ground.
The citation proposes a penalty of $4,000.

The hearing was held in Little Rock, Arkansas, on January 27, 2004, and
the record remained opened until March 1, 2004, for the inclusion of two trial
depositions. Jurisdiction and coverage are stipulated (Tr. 4).

Summit does not dispute the existence of the violative conditions as
described in the citation. Summit asserts, however, that as general contractor who
neither created nor had employees exposed

to the fall hazard, it cannot be cited for the violation. Summit argues that the multi-employer worksite doctrine is invalid, and that it lacked sufficient control of the jobsite
as general contractor to prevent or abate the violation.

For the reasons discussed, Summit’s arguments are rejected. The serious
citation is affirmed and a penalty of $2,000 is assessed.

Background

Summit is in business as a general contractor overseeing construction
projects. Its corporate office is located in Jacksonville, Florida. Summit employs
approximately 180 employees. It employs no construction trade employees (Tr. 258-259).

In December 2002, Summit and Collegiate Development Services, LP, the
developer for the property owner, entered into a construction contract to build new
student housing for Philander Smith College in Little Rock, Arkansas. Summit
contracted to serve as general contractor and assumed the construction responsibilities for
the project (Exhs. C-7, JT -2, pp. 5-6). The proposed dormitory consisted of a three-story
building with 134 units comprising approximately 90,000 square feet (Exh. Jt-1, p. 42;
Tr. 142, 192).

To perform the construction work, Summit contracted approximately
fifteen subcontractors and nine vendors

(Exh. C-6; Tr. 104). Summit’s project
superintendent, Jimmy Guevara, and three assistant project superintendents worked at the
project coordinating the vendors, scheduling the work of the various subcontractors, and
ensuring that a subcontractor’s work was performed in accordance with the subcontract
agreement (Tr. 101-102, 110-111). Summit’s project manager Jon Lee visited the site
twice a month to check on the progress and schedules (Exh. Jt-1, p. 5; Tr. 102-103).

The site clearing and foundation preparation work began in January 2003.
The framing work commenced on April 28, 2003 (Exh. Jt-1, p. 19; Tr. 103, 193).
Summit’s contract with the developer required Summit to complete the project in 150
days. Otherwise, Summit was subject to paying liquidated damages (Exh. Jt-1, p. 19).
The dormitory was completed on schedule on August 15, 2003 (Tr. 193).

Summit subcontracted All Phase Construction, Inc. (All Phase), to
complete the exterior brick masonry work for the new building (Exh. Jt-1, p. 20, C-8; Tr.
104). All Phase started the brick work on May 23, 2003 (Exh. C-9). To access the
building’s exterior, All Phase leased scaffolds which it installed and moved as its brick
work progressed around the building (Tr. 202).

Summit’s project superintendent Guevara testified that prior to OSHA’s
inspection, he had observed All Phase employees on the scaffold without using personal
fall protection. The scaffold also lacked guardrails. Guevara stated that he told the All
Phase superintendent of the lack of fall protection and advised them to correct it (Tr. 116,
119-120). According to Guevara, All Phase would implement fall protection until the
scaffold was moved to another location when employees again would work without fall
protection. Guevara explained that this occurred two or three times prior to the OSHA
inspection (Tr. 129).

On June 18, 2003, OSHA Compliance Officer (CO) Richard Watson,
while driving to another inspection site, observed and photographed employees on a
scaffold at the student housing project laying bricks approximately 12 feet above the
ground without fall protection (Exh. C-1; Tr. 33). After receiving permission from his
office to conduct an inspection, CO Watson returned to the project on June 19, 2003. He
again observed and photographed employees on a scaffold laying bricks without fall
protection (Exhs. C-2, C-3; Tr. 37). Upon entering the project, CO Watson was informed
by project superintendent Guevara that the masonry contractor was All Phase (Exh. C-9;
Tr. 169). However, Summit would not permit CO Watson to conduct a walkaround
inspection until its safety officer who lived in Jacksonville, Florida, was present (Tr. 38,
40). OSHA agreed to wait, and the walkaround inspection was performed on June 24,
2003. However, All Phase was not on site (Exh. C-9; Tr. 38-40, 233-234).

As a result of CO Watson’s observations on June 18 through19, 2003,
Summit received a serious citation for violation of 29 C.F.R. § 1926.451(g)(1)(vii). All
Phase also received a citation which included an alleged violation of §
1926.451(g)(1)(vii) and a proposed penalty of $2,500 (Tr. 79, 81).

Discussion

It is undisputed that Summit did not create, nor was its employees exposed
to, the lack of fall protection on the scaffold (Tr. 27). The scaffold was leased and
erected by All Phase. There is no evidence that Summit or other subcontractors ever
used the scaffold or that their employees were exposed to a fall hazard. The exposed
employees were employed by All Phase, a subcontractor hired by Summit (Tr. 79, 83,
202-203). CO Watson observed All Phase employees on the scaffold without fall
protection on two successive days (June 18 and 19, 2003).

Summit does not dispute that the cited standard, § 1926.451(g)(1)(vii),
applies to the scaffolding conditions existing at the construction site or that All Phase’s
employees

were exposed to a fall hazard of 12 feet and 18 feet without personal fall
protection or a guardrail system on the scaffold (Tr. 26, 37). Section 1926.450(g)(1)(vii)
applies to all scaffolds used in workplaces covered by the construction industry
standards. See 29 C.F.R. § 1926.450(a).

Summit stipulates that it was aware that All Phase’s employees were not
utilizing personal fall protection and that the scaffold lacked guardrails (Tr. 24, 48, 116).
The lack of fall protection was open and obvious and in plain view from the street and
Summit’s jobsite trailer (Exhs. C-1, C-2; Tr. 33, 36-37, 46). Summit’s superintendent
inspected the jobsite once or twice each day, and his three assistants were on site
overseeing the subcontractors’ work. They were on the jobsite on June 18 and 19, 2003,
at the time of the alleged violations (Tr. 137-138, 140, 200). On June 19, the
superintendent had walked the jobsite prior to CO Watson’s arrival (Tr. 140).

Summit’s superintendent had observed the same violations several times
earlier by All Phase and had asked All Phase to correct the violations (Tr. 119-120, 122).
Also, there is no dispute that the superintendent knew the scaffolding fall protection
requirements since he had previously received OSHA training (Tr. 123).

Based on these undisputed stipulations, if Summit is found to have
sufficient authority and control to prevent or abate the scaffold violation under the multi-employer worksite doctrine, a serious violation of § 1926.451(g)(1)(viii) is supported by
the record.

Multi-Employer Worksite Doctrine

Under the multi-employer worksite doctrine, an employer, including a
general contractor who controls or creates a worksite safety hazard, may be liable for
violations of the Occupational Safety and Health Act (Act) even if the employees
exposed to the hazard are solely employees of another employer. A general contractor
may be held responsible on a construction site to ensure a subcontractor’s compliance
with safety standards, such as fall protection requirements, if it can be shown that the
general contractor could reasonably be expected to prevent or detect and abate the
violative condition by reason of its supervisory capacity and control over the worksite.
Centex-Rooney Construction Co. , 16 BNA OSHC 2127, 2129-2130 (No. 92-0851, 1994).

As it has argued in earlier cases,

Summit challenges the multi-employer
worksite doctrine. In this case, Summit has moved for declaratory relief asserting that
there is no basis in the Act and regulations for the multi-employer worksite doctrine.
However, since the doctrine is based on

Review Commission precedent, it is not appropriate for a Commission judge to engage in
such declaratory relief. Also, the Commission has already rejected many of the
arguments raised by

Summit and discussed the basis for the doctrine. Access Equipment Systems, Inc. , 18
BNA OSHC 1718, 1723-1724 (No. 95-1449, 1999).

The multi-employer worksite doctrine, as applied by the Review
Commission, has been accepted in one form or another in at least six circuits and rejected
outright in only one. See U.S. v. Pitt-Des Moines, Inc ., 168 F.3d 976 (7th Cir. 1999);
R.P. Carbone Constr. Co. v. OSHRC , 166 F.3d 815 (6th Cir. 1998); Beatty Equip.
Leasing, Inc. v. Secretary of Labor , 577 F.2d 534 (9th Cir. 1978); Marshall v. Knutson
Constr. Co. , 566 F.2d 596 (8th Cir. 1977); Brennan v. OSHRC 513 F.2d 1032 (2d Cir.
1975); and Universal Construction Company Inc v. OSHRC, 182 F.3d 726 (10th Cir.
1999). But see Southeast Contractors, Inc. v. Dunlop , 512 F.2d 675 (5th Cir. 1975).

In this case, Summit’s office is located in Jacksonville, Florida, and the
worksite at issue was in Arkansas. These states are located in the Eleventh and Eighth
Circuits where this case could be appealed.

The Eight and Eleventh circuits have not
rejected the multi-employer worksite doctrine. The Eighth Circuit has accepted the
doctrine. Marshall v. Knutson Constr. Co. , 566 F.2d 596 (8th Cir. 1977) (an employer
who has control over an entire worksite must take whatever measures are “commensurate
with its degree of supervisory capacity”). The Eleventh Circuit has not had an
opportunity to rule on the doctrine. Although several employers have argued that the
Eleventh Circuit has rejected the multi-employer worksite doctrine based on earlier Fifth
Circuit case law, the Review Commission has ruled otherwise. McDevitt Street
Bovis, Inc., 19 BNA OSHC 1108, 1111-1112 (No. 97-1918, 2000)(case law decided
by the former Fifth Circuit rejecting the multi-employer worksite doctrine does not
preclude application of the Review Commission’s precedent regarding the doctrine in the
Eleventh Circuit). Additionally, Summit could appeal to the D. C. Circuit. Although the
D.C. Circuit has questioned the doctrine’s validity in a manufacturing plant in IBP, Inc.
v. Herman , 144 F.3d 861 (D.C. Cir. 1998),

it did not specifically reject the doctrine.
The multi-employer worksite doctrine is still viable before the Review Commission.
McDevitt Street Bovis, Inc., Id.

Thus, Commission precedent and the applicable Circuit court precedent do
not reject the multi-employer worksite doctrine.

In this case, Summit asserts that OSHA’s Directive CPL 2-0.124 (“Multi-Employer Citation Policy”) issued by the Secretary on December 10, 1999, is not
enforceable because it is contrary to the OSHA’s published regulation at 29 C.F.R.
§1910.12.

Section 1910.12(a) provides in part that “[e]ach employer shall protect the
employment and places of employment of each of his employees engaged in construction
work by complying with the appropriate standards prescribed in this paragraph” (emphasis
added). Summit argues that because § 1910.12(a) places safety responsibility on the
employer for its own employees engaged in construction work, OSHA’s multi-employer
worksite citation policy in OSHA Directive CPL 2-0.124 (“Multi-Employer Citation
Policy”) which permits citing a non-exposing and non-creating employer, is unenforceable.

Summit’s argument regarding OSHA’s multi-employer citation policy is
rejected. The citation at issue alleges Summit violated § 1926.451(g)(1)(vii). In deciding this
case, it is the applicable Review Commission precedent which determines if Summit, as a
general contractor, is responsible for the alleged scaffold violation and not an internal
guideline used by an OSHA compliance officer. The Review Commission does not consider
an OSHA CPL or other internal directives as binding on the Commission, and may only look
to them as an aid in resolving interpretations under the Act. The CPL does not confer
procedural or substantive rights on employers and does not have the force and effect of law.
Drexel Chemical Company , 17 BNA OSHC 1908,

1910, n. 3 (No. 94-1460, 1997). Also, Summit’s reading of § 1910.12 is too narrow. The
standard

does not prohibit application of an employer’s safety responsibility to employees of other
employers.

Summit’s Control of the Worksite

Summit concedes that it knew of All Phase’s repeated failure to provide fall
protection or require employees to utilize personal fall protection while on a scaffold more
than 10 feet above the ground (Tr. 24, 26, 48, 116). The Secretary concedes that Summit was
not a creating or exposing employer (Tr. 27, 79).

The issue in dispute is whether Summit had sufficient supervisory authority and control
of the student housing worksite to prevent and abate the violative condition which exposed
All Phase’s employees to a fall hazard.

As discussed, to determine whether a general
contractor such as Summit is a controlling employer for purposes of multi-employer
responsibility, the general contractor must be in a position to prevent or correct a violation or
to require another employer to prevent or correct the violation. Such control may be in the
form of an explicit or implicit contract right to require another employer to adhere to safety
requirements and to correct violations the controlling employer discovers.

Summit maintains that it is company policy not to be responsible for the safety
of a subcontractor’s employees or for any OSHA requirements placed on subcontractors (Exh.
Jt-2, pp. 4-5; Tr. 42). This policy is reflected in Summit’s subcontract agreements and its
safety manual. Summit’s subcontract with All Phase, as well as with its other subcontractors,
provides that:

All parties hereby agree that SUBCONTRACTOR has sole
responsibility for compliance with all of the requirements of the
Occupational Safety and Health Act of 1970 and agrees to
indemnify and hold harmless CONTRACTOR against any legal
liability or loss including personal injuries which
CONTRACTOR may incur due to SUBCONTRACTOR’s
failure to comply with the above referenced act. In the event
any fines or legal costs are assessed against CONTRACTOR by
any governmental agency due to noncompliance of safety codes
or regulations by SUBCONTRACTOR, such cost will be
deducted, by change order, from SUBCONTRACTOR’s
Subcontract amount. (Exh. C-8, Attach A, section 4).

Summit’s safety manual provides that:

[b]ecause the subcontractors and sub-subcontractors are each
separate employers, Summit is not legally responsible for their
compliance with OSHA. Nor would it be feasible or reasonable
for Summit to assume responsibility for any subcontractor’s
compliance with OSHA because Summit has no control over a
subcontractor’s hiring, training or disciplinary practices. (Exh.
C-5, p. DOL 18) .

If a subcontractor’s safety violations are observed, the safety manual provides
that:

If, during the normal course of operations, an open and obvious
hazard is observed, Summit will contact the appropriate trade
supervisor/foreman and ask that they correct the hazard.
Summit encourages all trades to emphasize safety while they
are on the project. In cases where questions arise regarding
some safety or health issue, Summit’s Director of Safety will, if
asked, act as a resource in an attempt to assist a subcontractor
with their question by providing copies of relevant standards or
other helpful information (Exh. C-5, p. DOL 19) .

Regardless of its stated company policy,

Summit, pursuant to the contract
with the owner’s representative in this case, agreed to be responsible for the safety of
subcontractors’ employees. In its contract with Collegiate Development, the owner’s
representative, Summit, agreed to “indemnify and hold harmless the Design-Builder, the
Owner and their respective agents, servants and employees from and against claims, damages,
losses and expenses, including but not limited to, attorneys’ fees arising out of or resulting
from performance of the Work, provided that such claim, damage, loss or expense is
attributable to . . . .

(e) liability imposed upon any Indemnified party directly or
indirectly by Contractor’s failure or the failure of any of
Contractor’s or a Subcontractor’s employees to comply with
any Occupational Safety and Health Administration (or related
statutes) violations and any penalties including enhancements,
resulting in whole or in part from Contractor’s acts or omissions
. . . .” (Exh. C-7, Section XII).

Summit also accepted responsibility “for initiating, maintaining and
supervising all safety precautions and programs in connection with the performance of the
Contract” and to “take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage, injury or loss to: a. employees on the Work and other persons
who may be affected thereby” (Exh. C-7, Section XIII, para. A.1 and para. B.1). Summit
agreed to “comply with applicable laws, ordinances, rules, regulations and lawful orders of
public authorities bearing on the safety of persons or property or their protection from
damage, injury or loss (Exh. C-7, Section XIII, para. B.2). Summit acknowledged
responsibility “for all general conditions work such as, but not by way of limitation, hoists,
safety equipment, and portable toilets” (Exh. C-7, Section I, para. F).

Based on these contractual obligations with the property owner’s
representative, Summit explicitly agreed to protect the safety of subcontractors’ employees.
The plain, unambiguous language of the agreement provides that Summit had to protect all
“employees on the Work” and “other persons who may be affected thereby.” Summit’s
former vice-president defined the term “Work” to include any type of construction work
performed by any worker of a subcontractor (Exh. Jt-2, p. 16).

If Summit failed to comply
with these safety obligations, the owner had the right to terminate the agreement or to pursue
other remedies (Exh. C-7, Section XXVII, para. A and C).

When Summit attempts to avoid responsibility for the safety of subcontractors’
employees on a given construction project, it attaches an addendum to the general contract
with the owner. Summit normally uses a standard American Institute of Architects (AIA)
contract form which holds the general contractor responsible. To the general contract,
Summit attaches an addendum that expressly negates the responsibility for the safety of a
subcontractor’s employees (Tr. 247, 266-267).                                 However, for the
Philander Smith College construction project, Summit did not avoid such responsibility and
no addendum was attached to the general contract. Summit admits that the agreement with
the owner’s representative was different from Summit’s typical agreement (Tr. 247). The
agreement for this project was based on a form provided by the owner’s representative.
Summit did not write the contract or negotiate any changes (Exh. Jt-2, p. 5-6, 13).

Based on its agreement with the owner’s representative, Summit contracted
with various subcontractors, including All Phase, to perform the actual construction work for
the new student

housing . Summit used its standard subcontract agreement form which it required all
subcontractors to sign (Exh. Jt-1, pp. 49-50).

The subcontract with All Phase also establishes Summit’s requisite control
over the safety of All Phase’s workers. In Article 6 of the subcontract with All Phase, the

SUBCONTRACTOR agrees to be bound to CONTRACTOR by
the terms and conditions of the General Contract between
CONTRACTOR and OWNER as well as this Subcontract
Agreement and hereby assumes towards the CONTRACTOR all
of the duties, obligations and responsibilities applicable to
SUBCONTRACTOR’s work which the CONTRACTOR owes
towards the Owner under the General Contract. (Exh. C-8)

Summit also required the subcontractor to “comply with all laws, ordinances, rules,
regulations and orders of any public authority bearing on the performance of the Work” (Exh.
C-8, Art. 9). The subcontract required All Phase to warrant and guarantee that all of its work
would be “in compliance with all federal, state and local codes and requirements (Exh. C-8,
Art. 15). Although the subcontract attempts to place responsibility for compliance with the
Occupational Safety and Health Act (Act) on the subcontractor, the subcontractor is required
to hold Summit harmless against any liability, including the assessment of OSHA fines and
legal costs. Summit is reimbursed for fines assessed and legal costs incurred as a result of the
subcontractor’s failure to comply with safety requirements. Summit retained the authority to
deduct the OSHA fines and legal costs from the subcontract amount by change order.

Additionally, other provisions of the subcontract shows Summit’s control over
the safety of All Phase’s employees. All Phase’s subcontract provided that the subcontractor
could not subcontract without the prior written consent of Summit, and Summit had sole
discretion on whether to approve a subcontractor’s subcontractor. Also, subcontractors were
required to keep their work areas clean and orderly subject to Summit’s approval. The
subcontract required All Phase to have on site at all times a “competent superintendent and
necessary assistants all approved by” Summit, one of which had to be able to speak English
(Exh. C-8, Attachment A, para. 17, 33, 45). All Phase agreed that “any scaffolding installed
by SUBCONTRACTOR to install this scope of work shall be OSHA approved”-- meaning
that it would comply with OSHA regulations (Exh. C-8, Attachment B, para. 20). Summit
required that All Phase comply with all governing laws imposed by all Federal governing
authorities, including the Occupational Safety and Health Act (Exh. C-8, Attachment A, para.
42 and Attachment B, preamble).

Moreover, Summit’s control over All Phase’s worksite is addressed in
paragraph 5 of Attachment A to the subcontract (Exh. C-8) which provides that:

All parties hereby agree that control of the Work Schedule, use
of the site and coordination of all on-site personnel will be
perform under the complete direction of CONTRACTOR’s
supervisory staff. CONTRACTOR may enforce upon
SUBCONTRACTOR

any of the following actions in order to expedite or coordinate
the work. However, CONTRACTOR does not assume any
liability for delays to SUBCONTRACTOR or third parties in
connection with coordination of on-site personnel. These
actions include, but are not limited to, the following:

A) Designated storage, designated unloading and parking
areas.

B) Require unacceptable materials, equipment or vehicles to
be removed from the project.

C) Limit the use of the site by SUBCONTRACTOR’s
equipment, vehicles, personnel or stored materials.

D) Temporarily or permanently bar specific personnel from
the site. Listed below is a partial list of reasons to deny a
person access to the project.

1) Drug or alcohol use

2) Fighting, possession of weapons

3) Theft

4) Harassment of anyone on or off the project

5) Personal use of the areas near the project
limits for parking, eating, sleeping, etc.

6) Failure to cooperate with CONTRACTOR’s
supervisory personnel or comply with project
documents.

Summit’s authority explicitly granted by a combination of contract provisions
is broad enough to necessarily involve subcontractor employees’ safety. Summit held
authority over the

subcontractor’s actions, as well as authority over conditions affecting general safety on the
worksite. The authority granted Summit mirrored how Summit actually controlled the
project. In addition to accepting responsibility for compliance with OSHA’s safety
requirements in its contract with the owner, and by requiring its subcontractors to hold
Summit harmless for a failure to comply, Summit held sufficient authority and control over
the worksite and the safety of the employees.

The Review Commission considers supervisory authority and control sufficient
where the general contractor has specific authority to demand a subcontractor’s compliance
with safety requirements, stop a contractor’s work for failure to observe safety precautions,
and remove a contractor from the worksite. McDevitt Street Bovis, Inc. , supra . Summit held
this control over All Phase.

Thirty-eight employees of four subcontractors including All Phase were
working on the student housing project on June 18 and 19, 2003 (Exh. C-9). Summit’s
project superintendent and his three assistants were also present on site. The assistants were
assigned to particular locations in the building where the subcontractors performed their jobs,
and the project superintendent inspected the site twice daily to ensure progress and quality of
work. Summit kept track of the subcontractor’s activities on the worksite. Guevara, as
project superintendent, prepared a project diary and daily report at the end of the day which
detailed the activities performed by the subcontractors and the occurrence of any problems
(Exh. C-9).

Respondent held the power to hire and fire subcontractors (Tr. 104, 109, 149-150). Summit controlled the sequencing of work, telling subcontractors when to start and
finish their work (Tr. 109, 144). Summit controlled the quality of work, ensuring through
inspections that subcontractors performed their work in accordance with the contract
specifications and blueprints (Tr. 109-111). Summit had authority to correct deficiencies in
the work of the subcontractors (Tr. 144). Summit conducted injury investigations for
employees of subcontractors who were injured at the worksite (Exh. C-9, entry April 16,
2003; Tr. 163-167). At the preconstruction meeting, Summit conducted a safety presentation
which included fall protection and invited subcontractors to attend (Tr. 213-214).

If, during the normal course of his activities, Summit’s superintendent
observed an obvious safety concern, the superintendent requested the subcontractor to rectify
the hazard immediately (Tr.

222, 244). This is what superintendent Guevara advised several times prior to the OSHA
inspection. He mentioned to All Phase at least twice that its employees were not using fall
protection while laying bricks from the scaffold (Tr. 120, 129, 205). As recognized by
superintendent Guevara, subcontractors generally complied with his safety warnings (Tr.
129).

Summit’s claim that it has only a limited ability to require a subcontractor to
correct safety violations is disingenuous. The subcontract which Summit drafted and required
subcontractors to sign in order to work on the student housing project retained Summit’s
authority to terminate, suspend or withhold contract payments from any subcontractor who
failed to abide by its directions. Summit, not the subcontractors, dictated the terms of the
subcontract and what occurred on the worksite. Guevara testified that subcontractors never
refused any of its requests concerning safety (Tr. 113, 129). This shows a recognition by the
subcontractors of Summit’s control and authority over the worksite.

As a general contractor, Summit held a unique position on the construction
project. The subcontract agreement provided Summit multiple methods to enforce All
Phase’s compliance with OSHA requirements. Summit chose the subcontractors for the
work, controlled the scheduling of their work, and could enforce penalties or ultimately
terminate the subcontract if the subcontractor failed to meet its schedule. Summit had the
right to terminate All Phase for convenience or for cause if the subcontractor failed to
“perform the Work in Accordance with the Contract Documents,” disregarded “Laws, Codes
or Regulations of any public body having jurisdiction, or “otherwise violates in any way
provisions of the Contract Documents” (Exh. C-8, Art. 14(b)). This right included the power
to fire a subcontractor for the violation of OSHA regulations (Exh. Jt-1, pp. 14-15).
Although termination of a subcontractor could cause serious problems with the scheduling;
nevertheless, Summit has exercised that ultimate control when necessary.

Summit also had the right to exclude All Phase from the jobsite and to take
possession of the Work (Exh. C-8, Art. 14). Summit could temporarily or permanently bar
specific personnel of All Phase from the jobsite for failure to cooperate with Summit’s
supervisors (Exh. C-8, Attachment A, para 5). In fact, Summit’s safety and health manual
contemplated that a partial or total work stoppage might be required until corrective action is
taken (Exh. C-5, p. 72). In Article 14 of the subcontract

agreement, Summit retained the authority to suspend the subcontractor for not more than 90
days without cause.

If termination or suspension were too harsh a remedy, the subcontract provided
other methods by which to enforce All Phase’s compliance with OSHA. Summit had the
right to retain 10 percent of the contract amount until All Phase satisfied all of its contractual
obligations (Exh. C-8, Art. 3(d); Tr. 114-115). Summit’s safety policy also provides that
the project superintendent could solicit

assistance from Summit’s safety director or the project manager (Tr. 222, 229-230). In fact,
the project superintendent testified that when he had encountered a problem with a roofing
subcontractor during a rain, he took the problem to his project manager who corrected it by
dealing directly with the subcontractor’s officers (Tr. 169-171). This was not done, however,
when All Phase repeatedly failed to require fall protection for employees (Tr. 231).

Within its control and authority over the safety of All Phase employees,
Summit failed to exercise reasonable care. Summit had observed scaffolding violations
several times by All Phase prior to the OSHA inspection. On each occasion, Summit did no
more than ask All Phase to correct the violation. Despite having knowledge of the June 18
and 19 violations at issue, Summit did not request All Phase to correct the violations (Tr. 121-122). Instead Summit rescheduled the OSHA inspection to June 24, 2003, when All Phase
was not onsite. There is no showing that Summit took any corrective action such as inspecting
All Phase for fall protection requirements, conducting worksite safety meetings or training,
and enforcing compliance with a graduated system of enforcement.

Summit’s violation of § 1926.451(g)(1)(vii) is established.

Serious Classification

In order to establish that a violation is “serious” under § 17(k) of the Act, the
Secretary must establish that there is a substantial probability of death or serious physical
harm that could result from the cited condition and the employer knew or should have known
of the violation. Showing the likelihood of an accident is not required. Spancrete Northeast,
Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).

Summit’s violation of § 1926.451(g)(1)(vii) is properly classified as serious.
Summit stipulates that it knew of the lack of fall protection by All Phase employees. Its
employees were exposed to falls of 12 feet or 18 feet from a scaffold to the ground. Such a
fall could cause serious physical harm or possibly death.

Penalty Consideration

In determining an appropriate penalty, consideration of the size of the
employer’s business, history of the employer’s previous violations, the employer’s good faith,
and the gravity of the violation is required. Gravity is the principal factor.

Having 148 employees and a history of past serious citations, Summit is not
entitled to credit for size or history. However, Summit is entitled to credit for good faith .
There is no showing that Summit’s safety program is inadequate in protecting its employees.
Although its company’s policy is to avoid safety responsibilities for subcontractors’
employees, Summit does attempt to advise subcontractors of known safety hazards.

A penalty of $2,000 is reasonable for Summit’s violation of §
1926.451(g)(1)(vii). Summit was the general contractor and had no employees exposed to the
lack of fall protection. Summit did not create the unsafe condition. The subcontractor who
caused the violation and had employees exposed received a $2,500 penalty from OSHA.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law
in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based upon the foregoing decision, it is ORDERED:

Serious violation of § 1926.451(g)(1)(vii), is affirmed and penalty of $2,000 is
assessed.

/s/ Ken S. Welsch

KEN S. WELSCH

Date: June 14, 2004                                                      Judge