Summit Contracting Group, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Summit Contracting Group was the general contractor for a multi-building residential project where OSHA observed nine framing-subcontractor employees working without fall protection at heights of 12 to 34 feet. OSHA cited Summit as a controlling employer even though none of Summit's own employees was exposed. The Commission rejected Summit's argument that controlling-employer liability was invalid in the Eleventh Circuit and applied Commission multi-employer precedent. It nevertheless found that the Secretary did not prove constructive knowledge because Summit had a secondary safety role, used a safety consultant, conducted site walks, addressed violations it observed, and reasonably relied on the framing contractor's own safety program and inspections. The Commission reversed the judge, vacated the serious citation, and removed the $11,640 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.501(b)(13).
• Outcome: Serious residential fall-protection citation vacated; $11,640 penalty removed.
• Key point: A controlling employer has a reduced, secondary duty of reasonable care, and constructive knowledge requires proof that its monitoring and reliance on subcontractors were inadequate under the worksite circumstances.

Full text (OSHRC public release)


Document

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR ,

Complainant,

v.

SUMMIT CONTRACTING GROUP, INC.,

Respondent.

OSHRC Docket No. 18-1451

ON BRIEFS:

Joseph M. Berndt ,
Attorney;
Heather R. Phillips , Counsel for Appellate Litigation;
Edmund C. Baird ,
A ssociate
Solicitor
for Occupational Safety and Health ;
Kate S.
O’Scannlain , Solicitor of Labor ; U.S. Department of Labor, Washington, D.C.

For the Complainant

Bryan D. Judah ,
General Counsel ;
Summit Contracting Group, Inc., Jacksonville,
FL

For the Respondent

DECISION

Before: ATTWOOD , Chairman
and
LAIHOW, Commissioner.

BY THE COMMISSION:

Following
the
inspection of a
multi-family housing project in Ponte Vedra, Florida , t he Occupational Safety and Health Administration issued
Summit Contracting Group, Inc.,
a citation
alleging
a serious
violation
of
29 C.F.R. § 1926.501(b)(13) , which requires employees “engaged in residential construction activities 6 feet (1.8 m) or more above lower levels” to be protected by specified fall protection measures . Administrative Law Judge
John B. Gatto
affirmed
the citation
and assessed
the proposed $1 1 , 640
penalty . For the reasons discussed below, we reverse
the judge and vacate the citation .

BACKGROUND

Summit
was
the general contractor
for the
Ponte Vedra
project , which
spanned fourteen acres and included
the
construction of fourteen
multi-family
residential
buildings. Summit contracted the project’s framing work to Gunner Houston, Ltd. Gunner Houston, in turn, hired
three framing
subcontractors
to perform th is work :
Martin Serrano Remodeling, LLC; Elite
Construction & Associates, LLC; and Superior Framing LMT, LLC. These three
subcontractors
did not have a direct contractual relationship with Summit.

An
OSHA
compliance officer
inspected the worksite on April 17, 2018. When
the
compliance officer arrived on site, each of the three framing subcontractors w as
performing
roofing
work on a different building. O ver a 10- to 15-minute period,
the
compliance officer observed
the owner and
four employees of Martin Serrano Remodeling, three employees of Elite Construction, and one employee of Superior Framing
working
without fall protection while exposed to falls ranging from 12 feet to 34 feet. No ne of
Summit ’s
or
Gunner Houston ’s employees
were
exposed to a fall hazard .
Following the inspection,
OSHA
issued
Summit
the
one-item
citation
under the Secretary’s multi-employer citation policy,
alleging that Summit was a “controlling employer” liable
for
the framing subcontractors’ failure to use fall protection .
OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy ¶ X.E (Dec. 10, 1999)
( defining
controlling employer as one
“who
has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them”) .

DISCUSSION

On review, Summit challenges two aspects of the judge’s decision. First,
the company
argues that
the
Secretary’s
multi-employer
citation policy , as well as Commission precedent
assessing
multi-employer liability,
i s invalid in the Eleventh Circuit, where this case arises . 1 Second,
the company maintains that even if
valid , the judge erred in finding
that Summit , as a controlling employer,
had constructive knowledge of the violative conditions . For the following reasons, we
reject
Summit’s
argument that
multi-employer
worksite liability
is invalid
in the Eleventh Circuit
but agree
with
the company
that it lacked constructive knowledge .

Multi-Employer Worksite
Liability

“The grounding of the multi-employer citation policy in
[ section 5(a)(2) of the Occupational Safety and Health Act, 29
U.S.C.
§
654(a)(2) ]
has long been recognized by both the courts and the Commission.”

Summit Contractors, Inc. , 23 BNA OSHC 1196, 1203 (No. 05-0839, 2010),
aff’d , 442 F.
App’x
570 (D.C. Cir. 2011) (unpublished) .

“ Under Commission precedent,
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.” StormForce
of Jacksonville, LLC , No. 19-0593, 2021 WL 2582530, at *3 (OSHRC Mar. 8, 2021) (internal quotation marks and brackets omitted) .

On review, Summit argues that
the Secretary’s multi-employer citation policy
is
invalid
under
Eleventh Circuit
precedent
and ,
therefore ,
the
judge
erred
in
applying
Commission precedent
imposing multi-employer liability . 2
Summit is correct
that in deciding a case, the Commission appl ies
the precedent of the
particular circuit
to which
that decision
may
be appealed. Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). Here, however,
the
Commission determined
in
McDevitt
Street Bovis., Inc. ,
that
“ the
Eleventh C ircuit has neither decided nor directly addressed
the issue of multi-employer liability . ”

McDevitt Street Bovis, Inc. , 19 BNA OSHC 1108, 1110 (No. 97-1918, 2000).

In deed,
in
McDevitt
the Commission
addressed
whether Eleventh Circuit precedent preclude s
the Commission from applying its
own
multi-employer
precedent on controlling e m ployer liability
and
roundly
rejected the notion . 19 BNA OSHC
at
11 10-12 . In that case,
a general contractor with no exposed employees
was cited
for a subcontractor’s
OSHA
violation. 3
Id.
at 1108-09. McDevitt, like Summit here, argued that the citation must be vacated because the
multi-employer worksite
doctrine was invalid in the Eleventh Circuit .
Id.
at
1110 . In making this argument,
McDevitt
rel ie d
on the same cases
now
relied upon
by Summit :

Southeast Contractors, Inc. v. Dunlop , 512 F.2d 675 (5th Cir. 1975) (per
curiam );
Horn v. C.L. Osborn Contracting Co. , 591 F.2d 318 (5th Cir. 1979); and
Barrera v. E. I. Du Pont de Nemours & Co. , 653 F.2d 915 (5th
Cir. 1981) . 4
McDevitt , 19 BNA OSHC at
1110 .

The Commission
considered
McDevitt’s
argument and explained
why none of these cases are controlling. Id.
at 1110-12.

In
the first case,
Southeast Contractors , the Fifth Circuit stated in a one-paragraph per
curiam
opinion that it agreed with
the
dissent
of former Chairman
Robert D.
Moran in the underlying Commission decision —“ especially with that portion pertaining to the general rule that a contractor is not responsible for the acts of his subcontractors or their employees.” 512 F.2d at 675. T he Commission
found
in
McDevitt
that
although “originally a Commission proceeding, [ Southeast Contractors ] was summarily decided and issued before the Commission even adopted the multi-employer doctrine [.] ”
McDevitt ,
19 BNA OSHC
at 1112. As for
Horn
and
Barrera , the Commission found neither controlling because, as tort cases, their “precedential value in the context of a case before the Commission is questionable.” Id.
In addition, t he Commission observed that neither the Fifth Circuit nor the Eleventh Circuit had, at that point, “reviewed any Commission decisions on multi-employer liability since the Commission adopted the doctrine.” Id. ;
Access Equip. Sys., Inc. , 18 BNA OSHC 1718, 1725-26 n.12 (No. 95-1449, 1999).

In the
more than twenty years
since
McDevitt
was decided , t he Eleventh Circuit has
not
clarif ied
its position on the multi-employer worksite doctrine. 5
I n
2018,
however,
the Fifth Circuit
in
Hensel Phelps Construction Co. , 909 F.3d 723 (5th Cir. 2018),
became the eighth circuit court of appeals to
“ a d opt[ ] the principles associated with
multi-employer
liability . ” 6

McDevitt , 19 BNA OSHC at
1111 & n.11 . I n rejecting
Hensel Phelps’
challenge to the Secretary’s multi-employer citation policy,
the
Fifth
Circuit
examined its past precedent on this issue . Hensel
Phelps, 909 F.3d at 737-42. The
court
explained
that
Southeast Contractors
“turned, not on any interpretation of [section 5(a)(2) of the OSH Act], but on an interpretation of [the cited construction standard].” Id.
at 740. According to the
c ourt , its holding in
that decision
was
“limited to its facts
[as they relate d
to]
the meaning of the
[cited]
regulation. Nothing more.” Id.
at 741. The
Fifth Circuit
therefore held that
when it
agreed with
the reasoning of former Chairman Moran’s dissent, it had “merely approved of the ‘general rule that a contractor is not responsible for the acts of his subcontractors or their employees, ’ ”
but “did not tether that approval to any interpretation of [section 5(a)(2)].” Id .

In
Hensel Phelps , t he Fifth Circuit
also readily
dispensed with
Horn
and
Barrera . As to
Horn , the court
found
that the decision
“does not carry the day”
and
explained
it would be inappropriate to “apply a broad general statement of law regarding the scope and application of the [OSH] Act contained in a [tort case] to the entirely different question of whether the Secretary has the authority under the [OSH] Act to cite a controlling employer for violating an occupational safety and health standard.” Id.
at
74 1-4 2.

T he court
declared
Barrera
“wholly irrelevant” to the issue
at hand ,
conclud ing
that “[t]he decision has no force here.”
Id.
at 742.

Although
Hensel Phelps
is not Eleventh Circuit precedent, the Fifth Circuit’s reading of its own decisions
is
highly persuasive , particularly to the extent
that
the court’s analysis
stands
directly
at odds with Summit’s claim that
these decisions
“unambiguously” preclude
assessing
multi-employer worksite
liability
here.

W e
thus
reaffirm the
Commission ’s
h olding
in
McDevitt
that
Eleventh Circuit precedent
is
unsettled on the
issue of
multi- employer
liability . 7
Accordingly, w e
apply
Commission
precedent
to the circumstances of this case.

Reasonable Care

Summit does not dispute that it was a controlling employer
at
the
Ponte
Vedra
worksite. “If a controlling employer has actual knowledge of a subcontractor’s violation, the controlling employer has a duty to take reasonable measures to obtain abatement of that violation.” StormForce , 2021 WL 2582530, at 6. I n the absence of actual knowledge, the pertinent inquiry is whether the controlling employer “met its obligation . . . to ‘exercise reasonable care,’ i.e., to take ‘reasonable measures’ to ‘prevent or detect’ the violative conditions.” Id.
at
8 .
This inquiry
requires an assessment of
“the nature, location, and duration ”
of the
violative
conditions , as well as
“objective factors” relat ing
to the controlling employer’s role at the worksite
and its relationship with other onsite employers .
Suncor Energy (U.S.A.) Inc. , No. 13-0900, 2019 WL 654129, at * * 5 -9
(OSHRC Feb. 1, 2019) ;
StormForce , 2021 WL 2582530, at 8-10 . It is clear
that
“ a
controlling employer’s duty to exercise reasonable care is less than what is required of an employer with respect to protecting its own employees.” StormForce , 2021 WL 2582530, at *6
(internal
quotation marks omitted) . In other words, in assessing the extent of a controlling employer’s duty to detect violative conditions
not involving its own employees , the Commission
takes into account
that
the
controlling employer
has a
“secondary safety role” at the worksite. Suncor , 2019 WL 654129, at 6-7 .

Here, t here is no dispute that
the
only
Summit
employees
present at the
time of
OSHA’s
inspection—the superintendent and assistant site superintendent—lacked actual knowledge of
the framing
subcontractors’
failure to use
fall protection. The judge
concluded
that
Summit
nonetheless
had constructive knowledge , finding that
with the exercise of reasonable diligence,
its
superintendents
“could have uncovered” the se
violative conditions
because they were in “plain
view .” In
reaching this conclusion ,
the judge
found
Summit’s
worksite inspections
were inadequate ,
especially
in light of
the company’s
awareness that fall protection violations had previously occurred
on the Ponte Vedra project .

On review,
Summit argues that th e judge’s
conclusion is contrary to the
Commission’s
holding in
David Weekley
Homes ,
in which
the Commission reversed a judge’s finding that a controlling employer had
const ru ctive
knowledge of “substantive violations”
committed by onsite subcontractors
that
“ ‘ surely were in view’ of
[the
controlling
employer’s]
representatives since they were seen by [the] compliance officer.” 8
19 BNA OSHC 1116, 1119-20 (No. 96-0898, 2000) . Specifically, the Commission
concluded
that the Secretary failed to establish that
the
controlling employer could have discovered the violative conditions with the exercise of reasonable diligence. Id. The Secretary responds that
David Weekley
is factually distinguishable because, in contrast to that case, the record here shows that Summit failed to exercise reasonable
care
to detect
the framers’ lack of
fall protection.

We find that the record
in this case
falls short of establishing that Summit failed to exercise reasonable diligence. First, although
the
compliance officer was able to observe the
violative
conditions
from ground level, 9
the record establishes
that
these conditions existed for only 10 to 15 minutes.
Thus, Summit would
likely
have had to
continuously
monitor the
framers’
work
to
discover
the violative conditions
during that
limited
time frame , an obligation
that
we have never
extend ed
to
even
an
exposing
employer .

See , e.g.,
N . Y .
S tate
E lec. &
G as Corp. , 19 BNA OSHC 1227 , 1231
( No.
91-2897 , 2000 )
( finding
safety
monitoring adequate
where foreman inspected worksite twice
daily
and
conducted occasional
unannounced
audits ,
and
noting
Second Circuit’s “admonition that we cannot impose a requirement for continuous, full-time monitoring” ) ;
Kerns Bros. , 18 BNA OSHC
at
206 9-70 (finding
safety
monitoring
adequate where co-owner or safety director inspected 75
to 95
percent of worksites
daily ) .
Moreover,
it is not clear from the record
that at the time of the compliance officer’s inspection,
either
Summit supervisor
was
in a position to
observ e
the violative conditions—the
superintendent
was at a meeting
in the office trailer , and
although
t he assistant site superintendent
was walking around the worksite when the compliance office first arrived,
he
gave no specific testimony about
what he could see from his vantage point
that day
while performing his various responsibilities at the worksite .

Second ,
regardless
of the violative
conditions’
short duration,
the record
lacks sufficient evidence
to establish
that
Summit’s
monitoring
of the framers
was
inadequate. Remarkably ,
Summit’s assistant
framing
superintendent — the
Summit
official
specifically
charged with supervising
framing activities at the worksite —was not called to testify
at the hearing .
A nd a lthough
the record establishes
that
he
was at offsite training during the compliance officer’s inspection,
the record shows
that he
typically
conducted daily walkaround inspections . Put simply, w ithout
further
evidence ,
we cannot
evaluate
the adequacy of the assistant framing superintendent’s monitoring efforts on the day of the inspection .

Each of t he other two superintendents also conducted daily inspections. 10 The superintendent in charge of the worksite
testified that he
walk ed
around
to
check the progress of
all
work at the site and, at times,
directed
subcontractors to correct safety violations. T he assistant
site
superintendent
also conduct ed
such inspections, though h is inspections
were
primarily focused on
the
ground activities
for which he was responsible . 11 In addition to these
daily
walkarounds,
Summit hired a safety consultant to, among other things, conduct monthly inspections
and document safety violations
at the worksite.

To supplement these inspection efforts, Summit’s superintendent testified that
the company
relied on Gunner Houston and the three framing subcontractors to
ensure the safety of
their own employees. N othing in the record shows
that
this reliance
was unreasonable. 12
Suncor ,
2019 WL 654129, at **7, 9-10
(considering safety history and experience of contractors to determine extent of controlling employer’s secondary safety role) .

Summit’s superintendent testified
that Gunner Houston had been the framing contractor on every job he worked on during his eight years with Summit , suggesting that
Summit was aware of Gunner Houston’s safety record, at least at Summit ’s
worksites. T he record , however,
is silent on Gunner Houston’s history of safety compliance. And
while
Summit’s superintendent acknowledged that the company would not have been aware of
the framing subcontractors’
safety
history,
the record is
also
silent
on whether Gunner Houston vet ted
its framing subcontractors for safety compliance and, if so,
whether Summit was aware that Gunner Houston performed this function.
What the record does show is
that
the three framing subcontractors had a contractual relationship with Gunner Houston, not Summit, and that
Gunner Houston had its own safety consultant, utilized its own fall protection plan, held safety meetings with its subcontractors’ employees ,
provided fall protection training to
those employees , and
had its
own
superintendents conduct
safety inspections
at the worksite .
In
short , there is
insufficient
evidence to conclude that Summit’s reliance on Gunner Houston
and the framing subcontractors
was unreasonable . C f.
R.P. Carbone Constr. Co. , 166 F.3d 815, 820 (6th Cir. 1998) (general contractor’s reliance on its subcontractor’s safety efforts was unjustified because general contractor failed to inform itself as to what safety measures subcontractor had implemented and violation was in plain view for two weeks).

Finally,
as to Summit’s monitoring of the framers,
we reject
the Secretary’s claim that Summit should have inspected the m
more frequently
because
the company
was
aware
th at the framers
had previously failed to use
fall protection at the Ponte Vedra worksite. The record does show that
Summit’s safety consultant reported to the company
that framers had been spotted without fall protection
during
two monthly inspections preceding the compliance officer’s visit,
the superintendent was aware of previous fall protection violations at the site, and
the assistant site superintendent
was aware that someone
visiting the site
had recently commented on fall protection violations . T here is , however,
no evidence in the record regarding what specific measures Gunner Houston
and
the framing subcontractors took to ensure that the exposed employees were consistently tied off. Thus, there is
little
basis
upon which we could
conclude that Summit’s response to these
instances of noncompliance — includ ing
its consultations
with the subcontractors whenever
such
instances
were observed — was unreasonable.
Given Summit’s secondary safety role at the worksite, we find the limited evidence in the record does not support a finding that Summit’s inspection practices were inadequate. See
StormForce , 2021 WL 2582530, at 6;
Suncor ,
2019 WL 654129, at *6-7.

For all these reasons, we conclude the Secretary has not established that Summit failed to exercise the reasonable care required of a controlling employer in a secondary safety role and ,
therefore, has not met
his
burden of proving knowledge. 13
Compare
StormForce , 2021 WL
2582530, at **8-10 (controlling employer’s knowledge not established where it is undisputed that company’s foreman followed inspection procedures and procedures were adequate, no evidence shows foreman observed
subcontractor’s
fall protection violation, and “more than a ‘short[]’ period of time passed between” foreman’s and compliance officer’s inspection s ) ,
and
David Weekley , 19 BNA OSHC at 1119-20 (controlling employer’s knowledge not established where
subcontractor
violations “were of brief or indeterminate duration” and Secretary failed to show that controlling employer could have discovered their existence with exercise of reasonable diligence) ,
with
McDevitt , 19 BNA OSHC
at 1110 (controlling employer ’s
knowledge
established
where subcontractor’s noncompliant scaffold was in plain view and had been erected for “significant period of time”) ,
and
Centex-Rooney Constr. Co. , 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994)
(controlling employer ’s
knowledge
established
where inadequate guardrails and uncovered floor openings created by subcontractors were in plain view, had existed for “significant period of time,” and controlling employer “could have ascertained their existence through the exercise of reasonable diligence”).

Accordingly, we reverse the judge and vacate the citation.

SO
ORDERED.

/s/               

Cynthia L. Attwood

Chairman   

/s/               

Amanda Wood Laihow

Dated:    May 10,
2022                Commissioner

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No.
18-1451

SUMMIT CONTRACTING GROUP, INC. ,

Respondent.

DECISION AND ORDER

Attorneys and Law Firms

Jeremy K. Fisher, Senior Trial Attorney, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, for Complainant.

Bryan Judah, General Counsel, Summit Contracting Group, Inc., Jacksonville, FL, For Respondent.

JUDGE: John B. Gatto, First Judge

I. INTRODUCTION

The
United States Department of Labor, through its Occupational Safety and Health Administration (“OSHA”), investigated a
construction site in Ponte
Vedra , Florida,
involving
Respondent, Summit Contracting Group, Inc. (“Summit”),
and
subsequently issued a
citation to
Summit
on September 12, 2018, under the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C. §§
651-678. 14
The citation asserted Summit committed a serious 15
violation of the
requirements of 29 C.F.R. § 1926.501(b)(13),
one of OSHA’s fall protection standards, and proposed
a penalty of $11,640. Summit timely contested the citation, and thereafter, the Secretary filed a formal complaint in the Commission seeking an order affirming the citation. 16
A bench trial was held in February 2020, in Jacksonville, Florida.

The parties stipulated that Summit was an employer engaged in a business affecting interstate commerce within the meaning of section (5) of the Act, 29 U.S.C. § 652(5), and that the Commission has jurisdiction over this proceeding under section 10(c) of the Act, 29 U.S.C. § 659(c). ( Compl . ¶¶ 1, 2; Answer ¶¶ 1, 2;
see also
Ex. J-1 ¶ (a)). 17
Pursuant to Commission Rule 90, after hearing and carefully considering all the evidence and arguments of counsel, the Court issues this Decision and Order, which constitutes its final disposition of the proceedings. 18
For the reasons indicated
infra , the Court concludes the Secretary has proven all the necessary elements of the alleged violation of 29 C.F.R. § 1926.501(b)(13), Summit has failed to carry its burden as to any preserved affirmative defenses, and therefore, the citation is
AFFIRMED
as a serious violation and Summit is
ASSESSED
a civil penalty of $11,640.

II. BACKGROUND

A. The Worksite

The issuance of the citation arose from activities observed by OSHA Compliance Officer Jose Carrion-Ruiz on the construction site of The Reserve at Nocatee (the “worksite”), a multi-family, residential complex located in Ponte
Vedra , Florida. (Tr. 31-32, 91-92; Ex. J-1 ¶ (d);
see also
Ex. R-1, Ex. R-15). The project consisted of seven multi-family apartment buildings, a clubhouse, garages, pool facilities and a pond on an approximately 14-acre plot of land. (Tr. 32-33, 90-92;
see also
Ex. C-9, p. 15, Ex. R-1, Ex. R-2, Ex. R-3, Ex. R-15). Summit was the “non-performing” general contractor at the worksite and did not engage in actual construction activities,
but rather, oversaw the worksite and coordinated construction with the various subcontractors onsite. (Tr. 106-07, 196-97;
see also
Ex. J-1 ¶ (g), Ex. C-8). Summit contracted with Gunner-Houston, Ltd. (“Gunner-Houston”) to provide framing services at the worksite. (Tr. 52-53;
see also
Ex. J-1 ¶ (g), Ex. C-18). In turn, Gunner-Houston subcontracted with three framing subcontractors: Elite Construction & Associates, LLC (“Elite”), Martin
Sarrano
Remodeling, LLC (“ Sarrano ”), 19
and Superior Framing, LMT, LLC (“Superior”). (Tr. 52-53, 288;
see also
Ex. J-1 ¶¶ (e), (k)).

Summit had at least three superintendents at the worksite: John Riddle was Summit’s General Superintendent, Steven Redden was Summit’s Site Superintendent, and Alex
Wrightman
was Summit’s Framing Superintendent. 20
(Tr. 169-72, 207). Riddle’s duties as the General Superintendent included overseeing the entire worksite and managing the Assistant Superintendents, including Redden and
Wrightman . (Tr. 107-08, 207;
see also
Ex. C-7). As the Site Superintendent,
Redden’s
duties largely focused on “groundwork” and coordinating the “logistics” and deliveries for the worksite. (Tr. 153, 170-71, 198-99;
see also
Ex. C-6). Summit was, to an extent, 21
responsible for safety issues at the worksite, and its superintendents had the authority to correct the employees of the subcontractors at the worksite when a safety violation was observed. (Tr. 112-14, 178-80, 193;
see also
Ex. C-6, Ex. C-7). Riddle and
Redden
both walked the worksite at least once daily and corrected safety violations if they found any. (Tr. 87-88, 112-13, 190-91;
see also
Ex. C-6, Ex. C-7).

B. Worksite Safety Measures

Summit required the employees of all subcontractors on the worksite to view a fifteen-minute training video before beginning work. (Tr. 93-94, 98-99;
see also
Ex. J-1 ¶ (h)). This video was in English and Spanish and covered a variety of safety topics, one of which was fall protection. (Tr. 94;
see also
Ex. J-1 ¶ (h)). Riddle would follow up the safety video with a few minutes of
discussion on worksite safety. (Tr. 93). This was the only training on fall protection Summit conducted before beginning work. (Tr. 105).

Summit had a contract with Morrow & Associates, LLC, for “Safety Consultant Services” at the worksite. (Tr. 211; Ex. C-5). In furtherance of this contract, Hal Morrow, the owner of Morrow & Associates, visited the worksite once a month to conduct an inspection of the worksite and document any safety violations he found. (Tr. 212-13, 226-27, 250-51;
see also
Ex. R-6). Morrow took photos of the worksite and included them with his findings and recommendations in written reports. (Tr. 246-47, 250;
see also
Ex. R-6). He shared these reports and his findings with Summit’s superintendents. (Tr. 268).

Morrow inspected the worksite on February 28,
2018
and March 28, 2018. (Tr. 226-27;
see also
Ex. R-6). On February 28, Morrow observed at least one fall protection violation where a framer was working on the “top plate” 22
without employing any method of fall protection. 23
(Ex. J-1 ¶ ( i )). Following this observation, Morrow brought the framer down and told him he could not work on the top plate without using a ladder. (Tr. 248-49). On March 28, Morrow again inspected the worksite and observed two framers working on the top plate without using a ladder. (Tr. 253; Ex. R-6). Following this observation, Morrow brought the workers down and told them, per Summit’s policy, they could not work on the top plate without using a ladder. (Tr. 256-57).

Morrow also developed a fall protection plan for the worksite, which was not specific to the worksite but applied to residential construction sites like the worksite. 24
(Tr. 230-32;
see also
Ex. C-12). Summit’s superintendents were “informed” of the plan, and it represented the
“minimum” fall protection requirements Summit’s superintendents were looking for when conducting inspections. (Tr. 233-34;
see also
Ex. C-12, p. 3). No employees of subcontractors were trained on the plan. (Tr. 233). Instead, subcontractors were expected to have their own fall protection plans specific to their trades. (Tr. 233-34, 271-72;
see also
Ex. R-15). Morrow also conducted some fall protection training at the worksite, mainly for Gunner-Houston and its subcontractors. (Tr. 237). Finally, Morrow provided Summit with weekly safety meeting topics, which
may
have included fall protection. (Tr. 141-42, 277;
see also
Ex. C-16).

Summit had a progressive discipline policy at the worksite. (Tr. 130-32, 243-244;
see also
Ex. C-13). Under the policy, the first level of discipline was a “verbal warning,” and the policy indicated “[s] everal
verbal warnings may be issued depending on the gravity of the violation.” (Ex. C-13). The policy provided for two successive written warnings, which “stipulated
that further infractions
will result in termination.” (Ex. C-13). Finally, the policy required a final written notice resulting in termination. (Ex. C-13). As the Court discusses more fully below in addressing Summit’s knowledge of the violations, there is little evidence in the record that this policy was meaningfully enforced at the worksite.
See
Part III(A)(4)(b)(iii),
infra.

C. The Inspection and Citation

The inspection giving rise to the citation occurred on April 17, 2018. (Ex. J-1 ¶ (d)). “A few days before” this date,
Redden
spoke with an individual, who he believed to be another OSHA Compliance Officer, 25
at the entrance of the worksite clubhouse. (Ex. C-6). This individual told Redden some workers on the roof of Building 3 were not tied off. ( Id. ). Redden called Riddle who in turn contacted Gunner-Houston’s framing superintendent about the issue. ( Id. ). Redden and Riddle walked the site but did not confirm any fall protection violations. (Tr. 175).

Sometime before April 17, OSHA’s Jacksonville office also received an email containing photographs of the worksite. 26
(Tr. 23-31;
see also
Ex. C-1, pp. 13-15). The photographs depicted two employees working on roofs without using any form of fall protection. (Ex. C-1, pp. 13-15).
Thereafter, on April 17, Carrion-Ruiz visited the worksite to conduct the inspection. (Ex. J-1 ¶ (d)). Carrion-Ruiz arrived at the worksite around 2:00 p.m. and entered the site in his vehicle, first stopping across from the pond, which was about 200 or 300 feet away from a building being framed. (Tr. 32-35, 76, 78;
see also
Ex. R-2 at notation “2”). From this vantage point, Carrion-Ruiz could see a framer working on a roof without using fall protection. (Tr. 34-35). Carrion-Ruiz then drove further into the worksite, making several stops to observe workers and take photographs, before parking his vehicle. (Tr. 32-34;
see also
Ex. C-1, Ex. R-2 at notations “3” to “5”).

Over the course of his inspection, Carrion-Ruiz observed active construction on three buildings. (Tr. 49). He also observed employees from subcontractors Elite, Superior, and
Sarrano , on the buildings working at heights of 12 to 34 feet without using any form of fall protection. (Ex. J-1 ¶¶ (e), (f)). Specifically, Carrion-Ruiz observed four employees of
Sarrano , as well as Martin
Sarrano
himself, working on one roof without fall protection (Tr. 36-40, 49;
see also
Ex. C-1, pp. 4-10, 12); three employees of Elite working on a different roof without fall protection (Tr. 41-45, 49;
see also
Ex. C-1, pp. 11, 13-17); and one employee of Superior working on a third roof without fall protection (Tr. 44-46, 49; C-1, pp. 18-22), totaling at least nine individuals working at heights above six feet without using any form of fall protection. (Tr. 49;
see also
Ex. J-1 ¶¶ (e), (f)). Carrion-Ruiz observed at least one fall protection violation on every building undergoing construction on the date of his inspection. (Tr. 49). The parties have also stipulated that although none of Summit employees were exposed to fall hazards, employees from Elite,
Sarrano , and Superior were exposed to fall hazards of 12 to 34 feet. (Ex. J-1 ¶¶ (e), (f)).

After Carrion-Ruiz had been taking pictures for about 10 or 15 minutes, he encountered Redden walking through the worksite around the area where Carrion-Ruiz had seen
Sarrano’s
framers working on a roof. (Tr. 47-49;
see also
Ex. C-1, pp. 23-24, Ex. R-2). Redden pointed Carrion-Ruiz in the direction of the worksite’s trailer and continued walking. (Tr. 50). Carrion-Ruiz encountered Riddle and Gunner-Houston’s operations manager, Ricky Nelson, about halfway to the trailer. (Tr. 50, 270). All three proceeded to the trailer to conduct an opening conference. (Tr. 50). Carrion-Ruiz was not permitted to interview any employees on April 17 but arranged to conduct them at a nearby gas station the next day. (Tr. 52). Following his inspection, opening conference, and interviews, Carrion-Ruiz determined that Summit was the “controlling employer” under OSHA’s Multi-Employer Citation Policy. (Tr. 54-55). Thereafter, OSHA issued Summit the
citation, which alleged seven instances of a violation of 29 C.F.R. § 1926.501(b)(13). ( Compl . Ex. A, pp. 6-7).

III.
ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious injuries.
Whirlpool Corp. v. Marshall , 445 U.S. 1, 11 (1980). Thus, “[t]he Act's purpose is straightforward: ‘to assure so far as possible safe and healthful working conditions’ for ‘every working man and woman in the Nation. ’ ”
Sec'y, U.S.
Dep't
of Labor v. Action Elec. Co. , 868 F.3d 1324, 1333 (11th Cir. 2017) ( quoting Georgia Pac. Corp. v. Occupational Safety & Health Review Comm'n , 25 F.3d 999, 1004 (11th Cir. 1994) ( quoting
29 U.S.C. § 651(b)). To achieve this purpose, the Act imposes two duties on an employer: a “general duty” to provide to “each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” 29 U.S.C. § 654(a)(1); and a specific duty to comply with all applicable occupational safety and health standards promulgated under the Act.
Id.
§ 654(a)(2). Pursuant to that authority, the standard at issue in this case was promulgated. 27

A. Alleged Violation of 29 C.F.R. § 1926. 501(b)(13)

The citation asserts Summit violated the cited standard because “[e]ach employee(s) engaged in residential construction activities 6 feet (1.8 m) or more above lower levels were not protected by guardrail systems, safety net system, or personal fall arrest system, nor were employee(s) provided with an alternative fall protection measure under another provision of paragraph 1926.501(b)[.]” ( Compl . Ex. A, p. 6). The cited standard provides in relevant part: “Each employee engaged in residential construction activities 6 feet (1.8 m )
or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure.” 29 C.F.R. § 1926. 501(b)(13).

Under the law of the Eleventh Circuit where this case arose, 28
“the Secretary will make out a prima facie case for the violation of an OSHA standard by showing (1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and importantly, (4) that the employer ‘knowingly disregarded’ the Act's requirements.”
Quinlan v. Sec'y, U.S.
Dep't
of Labor , 812 F.3d 832, 836 (11th Cir. 2016) (quoting
ComTran
Grp., Inc. v. U.S.
Dep’t
of Labor , 722 F.3d 1304, 1307 (11th Cir. 2013)). “If the Secretary establishes a prima facie case with respect to all four elements, the employer may then come forward and assert the affirmative defense of unpreventable or unforeseeable employee misconduct.”
Id. ( citing
id.
at 1308).

The parties have stipulated Carrion-Ruiz observed workers engaging in residential construction activities at six or more feet above a lower level. 29
Therefore, the cited standard applied. 30
The parties have also stipulated, and the record supports, employees of three subcontractors, Gunner-Houston, Elite,
Sarrano , and Superior, were observed engaging in construction on a residential building without employing any method of fall protection. Therefore,
the standard was violated. Thus, the Court’s remaining focus will be on the last two factors, whether
an employee was exposed to the hazard that was created and whether Summit “knowingly disregarded” the Act's requirements.

1. Whether Employees Were Exposed to the Hazard

a. Multi-Employer Worksite Doctrine

The main point of contention between the parties is whether Summit should be held liable for the violations as a “controlling employer” under the Commission’s “Multi-Employer Worksite Doctrine.”
See, e.g. ,
McDevitt Street
Bovis , Inc. , 19 BNA OSHC 1108 (No. 97-1918, 2000). A “controlling employer is one who ‘has general supervisory authority over the worksite, including the power to correct safety and health violations or require others to correct them.”’
Evergreen Constr. Co. , 26 BNA OSHC 1615 (O.S.H.R.C. Apr. 26, 2017) (quoting
Summit Contractors Inc. , 22 BNA OSHC 1777, 1781 (No. 03-1622, 2009) (quotation omitted). Under the Commission’s Multi-Employer Worksite Doctrine, an employer may be liable for the violation of an OSHA standard even though none of its employees were exposed to the hazard.
See Flint Engineering & Construction Co. , 15 BNA OSHC 2052, 2055 (No. 90-2873, 1992). As the Commission noted early in applying the doctrine, the Commission’s adoption of the doctrine was an “exercise of the Commission’s adjudicatory function in determining liability for safety and health violations,” and the Commission makes an “independent legal determination” of an employer’s liability under the doctrine.
Limbach Co. , 6 BNA OSHC at 1245-46. 31

Summit challenges the application of the doctrine to it under the particular facts of this case, but also makes several preliminary challenges regarding the validity of the doctrine in the first instance. ( Resp’t’s
Br. 5-10). Summit argues: (1) the Multi-Employer Worksite Doctrine is invalid under 11th Circuit law ( Resp’t’s
Br. 5-6); (2) the doctrine should be reconsidered
in light of
decisions from the Supreme Court about the application of
Chevron U.S.A., Inc. v. Nat. Res. Def. Council , 467 U.S. 837 (1984) (“ Chevron ”),
and the Court therefore owes no deference to the Secretary’s interpretation under that decision
( id.
6-9); and (3) the doctrine is inconsistent with 29 C.F.R. § 1910.12(a) ( Id.
10).

b. Whether Multi-Employer Worksite Doctrine is Invalid in Eleventh Circuit

Summit
cites
Horn v. C.L. Osborn Contracting Co. , 591 F.2d 318 (5th Cir. 1979) (“ Horn ”) 32
and argues that it “unambiguously provides that [the Act] relates only to the obligations of an employer ‘to his employees’ and does not extend to other persons” like subcontractors. ( Resp’t’s
Br. 6). Summit goes on to argue that, while the Fifth Circuit has overturned this precedent in
Acosta v. Hensel Phelps Construction Co. , 909 F.3d 723 (5th Cir. 2018), the Eleventh Circuit has yet to do so. ( Id. ). The Court finds no merit in Summit’s argument. As noted by the Fifth Circuit in reversing its precedent on the multi-employer worksite issue, the continued validity of the holding in
Horn
and other cases from the old Fifth Circuit is questionable considering developments in administrative law since those cases were decided.
See Acosta , 909 F.3d at 730-31 (finding that the Supreme Court’s decisions in
Chevron
and
Nat’l
Cable &
Telecomms .
Ass’n
v. Brand X Internet Servs. , 545 U.S. 967 (2005) required the court to re-engage with the Secretary’s reading of the Act “through a
Chevron
lens.” ( quoting
Dominion Energy Brayton Point, LLC v. Johnson , 443 F.3d 12, 17 (1st Cir. 2006))). In any event, Summit’s contention is untenable
in light of
subsequent decisions of the Eleventh Circuit and Commission precedent.

In
Southern Pan Servs. v. U.S.
Dep’t
of Labor , 685 F.
App’x
692 (11th Cir. 2017), the Eleventh Circuit upheld the Commission’s application of the Multi-Employer Worksite Doctrine and the exposing employer’s liability thereunder.
Id. , 685 F.
App’x
at 695;
see also Pace Constr. v. Secretary of Labor , 840 F.2d 24 (11th Cir. 1988) (Table) (summarily affirming
Pace Constr. Corp. , 13 BNA OSHC 1282 (No. 86-517, 1987) in which the employer was found liable under Multi-Employer Worksite Doctrine). Thus, although the Eleventh Circuit has not explicitly disavowed the holding in
Horn , it has apparently accepted multi-employer worksite liability under the Act.

The Court notes that the Eleventh Circuit’s opinion in
Southern Pan
was not designated for publication and thus is not considered binding precedent in the Circuit.
See
11 th Cir. R. 36-2 (“ Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”). To the extent that
Southern Pan
does not represent the law of the Eleventh Circuit, the Court nonetheless finds it persuasive. Further, Summit’s argument is precluded by Commission
precedent. In
McDevitt Street
Bovis , Inc. , 19 BNA OSHC 1108 (No. 97-1918, 2000), a case arising in the Eleventh Circuit, the respondent argued that three cases from the former Fifth Circuit precluded multi-employer worksite liability in the Eleventh Circuit.
See
McDevitt Street
Bovis , Inc. , 19 BNA OSHC at 1110. The Commission found, however, that former Fifth Circuit precedent, including
Horn , “ do[es] not preclude … following Commission precedent [on multi-employer worksite liability]” for cases arising in the Eleventh Circuit. 33
Id.
Thus, to the extent Summit’s argument is not precluded by Eleventh Circuit law itself, it is precluded by Commission caselaw.

c. Whether Chevron Deference Applies

Summit also argues the Multi-Employer Worksite Doctrine is premised on deference to the Secretary’s interpretation of the Act under
Chevron . 34
( Resp’t’s
Br. 6). Summit then
points to a series of Supreme Court cases which it argues have “ clarif [ ied ] the application and call[ed] into question the rationale behind
Chevron
deference and express[ed] the need to reconsider it.” ( Resp’t’s
Br. 6). Summit goes on to argue “[b] ased
on the current reservations the U.S. Supreme Court has with respect to the application of the
Chevron
doctrine, the controlling employer doctrine [i.e., Multi-Employer Worksite Doctrine] arguably presents the appropriate fact patter[n] for the Court to reconsider the application of
Chevron .” ( Resp’t’s
Br. 7). The Court is not persuaded.

To start, it is not entirely clear that
Chevron
is necessary for the application of the Multi-Employer Worksite Doctrine. Indeed, the two Commission cases originally setting forth the doctrine preceded
Chevron
by nearly a decade. In
Anning-Johnson Co. , 4 BNA OSHC 1193 (No.
3694, 1976) and
Grossman Steel & Aluminum Corp. , 4 BNA OSHC 1185 (No. 12775, 1976),
the Commission adopted the doctrine under its own interpretation of the Act
in light of
its scope and purpose, not on any deference to the Secretary’s view.
See Anning-Johnson Co. , 4 BNA OSHC at 1196-97;
Grossman Steel & Aluminum Corp. , 4 BNA OSHC at 1187-88. Indeed, as the Commission later noted in recounting the history of the doctrine, the Commission was initially at odds with the Secretary’s position on the issue but later reversed itself, having been persuaded by the reasoning of two courts of appeals.
See Summit Contractors, Inc. ,
23 BNA OSHC 1196, 1200 (No. 05-0839 , 2010).

In any event, the Supreme Court has not overturned
Chevron , despite the misgivings of some Justices pointed out by Summit. ( Resp’t’s
Br. 6-7 (citing various cases)). In
Kisor
v.
Wilkie ,
139
S.Ct . 2400 (2019),
wherein the Court limited courts’ deference to an agency’s interpretation of its own regulations, the Court made clear that its decision in no way impacted
Chevron
deference.
See
Kisor , 139
S.Ct . at 2425 (Roberts, C.J., concurring) (“ Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. … I do not regard the Court’s decision today to touch upon the latter question.” ( citing
Chevron )). 35
Thus, Summit’s insistence as to the infirmity of
Chevron
poses no basis for this Court to revisit the Multi-Employer Worksite Doctrine as defined by the Commission.

d. Whether Multi-Employer Worksite Doctrine is Consistent with 29 C.F.R. § 1910.12(a)

Summit also argues that the Multi-Employer Worksite Doctrine is inconsistent with 29 C.F.R. § 1910.12(a). ( Resp’t’s
Br. 10). This section, in pertinent part, states: “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). Summit’s argument is foreclosed by the Commission’s decision in
Summit Contractors, Inc. ,
23 BNA OSHC 1196 (No. 05-0839 , 2010) (“ Summit III ”),
aff’d , 442 F.
App’x . 570 (D.C. Cir. 2011). In that decision, the Commission overruled its previous position that 29
C.F.R. § 1910.12(a) shielded controlling employers from liability under the Multi-Employer Worksite Doctrine where none of its own employees were exposed.
Compare Summit Contractors, Inc. , 21 BNA OSH 2020 (No. 03-1622, 2007)
(“ Summit I ”) (holding, by the differing views of two Commissioners, that liability of this type was foreclosed by 29 C.F.R. § 1910.12(a)), with
Summit III , 23 BNA OSHC 1196 (expressly overruling
Summit
I
) .
With no Eleventh Circuit precedent to the contrary, 36
the Court is bound by the Commission’s decision.
See New Haven Foundry , 1 BNA OSHC 1721, 1722 (No. 4514, 1974).

e. Whether Summit is Controlling Employer of Worksite

Having rejected Summit’s arguments concerning the validity of the Multi-Employer Worksite Doctrine, the Court finds the Secretary has established that Summit was a “controlling employer” at the worksite. Under the Multi-Employer Worksite Doctrine,
“an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act … 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 (No. 3694, 1976). A controlling 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.”
McDevitt Street
Bovis , Inc. , 19 BNA OSHC at 1109 (quoting
Centex-Rooney Construction Co. , 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994)).

In the case of a general contractor of a construction worksite, like Summit, “ the general contractor is responsible for violations of its subcontractors that the general contractor could reasonably be expected to prevent or to detect and abate by reasons of its supervisory capacity
over the entire worksite ….”
Gil
Haugan , 7 BNA OSHC 2004, 2006 (Nos. 76–1512 & 76–1513, 1979). Moreover, there is a “presumption that, by virtue of its supervisory capacity over the entire worksite, the general contractor on the site has sufficient control over its subcontractors to require them to comply with occupational safety and health standards and to abate violations. The burden of rebutting this presumption is on the general contractor.”
Id.

Here, the evidence strongly supports a finding that Summit was a controlling employer of the worksite, and Summit has made no cogent argument to rebut that finding. According to the contract designating Summit as the general contractor of the worksite, Summit was “solely responsible for, and ha[d] control over, construction means, methods, techniques,
sequences
and procedures,” was required to “evaluate the jobsite safety thereof,” and was “fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences and procedures.” (Ex. C-8, p. 15). Likewise, in the contract between Summit and Gunner-Houston, the latter was only to “commence work as directed by Summit” and Summit could suspend Gunner-Houston’s work “at any time and without cause.” (Ex. R-10, pp. 3-4). Summit retained the authority to correct Gunner-Houston’s work. ( Id.
at 4). Additionally, Summit had the right to terminate its contract with Gunner-Houston if it “disregard[ed] the Laws, Codes, or Regulations of any public body having jurisdiction.” ( Id. ). The Commission has held that similar contractual provisions are evidence of a company’s status as a controlling employer.
See Summit II , 22 BNA OSHC at 1781 (contractual provision giving ability to terminate subcontractor for violating safety regulations);
Sunrise Plastering Corp. , 8 BNA OSHC 1765, 1766 (No. 78-0846, 1980) (contractual provision requiring general contractor to bring all work into compliance with safety regulations).

Alongside the contractual provisions granting Summit control over the worksite, Summit in fact exercised such control. Summit was described by its own employees as a “non-performing general contractor” whose sole role at the worksite was to coordinate work amongst the various subcontractors. ( Tr. 106-07, 196-97;
Exs . J-1 ¶ (g), C-8).
Summit exercised its authority to control the work of the subcontractors, including Gunner-Houston and its subcontractors, who needed Summit’s approval to commence their work. (Tr. 138).
Summit’s general control over the worksite was epitomized by one exchange at trial with Riddle:

Q. Okay.
So
would it be fair to say that someone has general supervisory authority over the worksite?

A. Over the site? Meaning do I take ownership in this [sic] 14 acres? Is this [sic] 14 acres mine? If that’s the question, yes, Summit is the general contractor over
that 14 acres .

(Tr. 107). Indeed, Riddle described himself and
Redden
as “two individuals managing 200 individuals” at the worksite. (Tr. 124).

Summit’s general authority over the worksite included the responsibility and authority to find and correct safety violations. Both Riddle and Redden testified that they walked the site at least once daily, and if they observed any safety violations during these walks, they would either correct the worker by stopping work or else inform the worker’s respective subcontractor of the violation. Summit also held weekly meetings to discuss safety issues, including ones directed at specific safety violations occurring on the worksite. 37
Finally, Summit contracted with Morrow to conduct general safety audits of the worksite and highlight safety violations, which were shared with Summit’s superintendents and the various subcontractors on site. Summit’s general responsibility for safety issues on the worksite lends further support that it was a controlling employer for purposes of the Multi-Employer Worksite Doctrine.
See Calpine Corp. , 27 BNA OSHC 1014, 1021 (No. 11-1734, 2018) (conduction of safety audits to point out safety issues to subcontractors and the respondent’s correction of safety violations of subcontractors was evidence of its status as a controlling employer);
Summit III , 23 BNA OSHC at 1206 (general authority over worksite safety, including daily walks by the superintendents, as well as weekly meetings to address safety issues with its subcontractors suggested the respondent was a controlling employer);
Southern Scrap Material Co. , Inc., 23 BNA OSHC 1596, 1616 (No. 94-3393, 2011) (the fact that the respondent’s superintendents conducted daily walks of the worksite to look for safety violations was evidence of its status as a controlling employer);
Summit II , 22 BNA OSHC at 1781 (general contractor’s practice of informing subcontractors of their employees fall protection violations indicated it was a controlling employer of the worksite).

The record also reflects that Summit had significant control over the specific fall hazard violations at issue here and had the authority to abate them.
See, e.g. ,
Summit III , 23 BNA OSHC at 1206 (examining the respondent’s control over a specific electric hazard on site to determine
whether it could have easily abated the hazard). Summit directed its superintendents in accordance with its fall protection plan to look for fall protection violations on site. Summit’s superintendents had the authority to correct fall protection violations of any subcontractor. Indeed, both Riddle and Redden testified they had observed and corrected fall protection violations prior to Carrion-Ruiz’s inspection and Riddle specifically remembered issuing verbal warnings to employees at the worksite regarding fall protection violations

Summit has not rebutted the presumption of its control over the worksite for purposes of holding it liable under the Multi-Employer Worksite Doctrine.
Summit argues that “in prior decisions where the Commission has found ‘supervisory employer’ liability on behalf of a general contractor, notwithstanding the Commission’s reference to liability on the basis of its supervisory role, the general contractor was the employer responsible for creating or controlling the particular
hazard, and
would thus be responsible for the violation on that basis.” ( Resp’t’s
Br. 11). The Court disagrees. Liability as a “creating employer” under the Multi-Employer Worksite Doctrine is a separate source of liability from an employer’s liability as a “controlling employer.”
See Summit III , 23 BNA OSHC at 1205 (acknowledging that these are separate sources of lability under the Multi-Employer Worksite Doctrine). As to liability as a controlling employer, although control over the
particular hazard
is sometimes a factor in the analysis, 38
it is by virtue of the general contractor’s supervisory role that the Commission imposes a duty on the contractor to detect and abate
all
hazards on the worksite except those “it could not reasonably be expected to detect or prevent.”
Knutson Constr. Co.,  4 BNA OSHC 1759, 1761 (No. 765, 1976),  aff'd,  566 F.2d 596 (8th Cir.1977). In
Blount Int’l Ltd. , 15 BNA OSHC 1897 (No. 89-1394, 1992), the Commission made it clear that a general contractor’s duty to detect and abate violations by its subcontractors does “not depend on whether the employer actually created the hazard or has the manpower or expertise to abate the hazard itself.”
Blount Int’l Ltd. , 15 BNA OSHC
at
1899.

Finally, Summit argues it “has no direct contractual relationship with the employers whose employees were exposed to fall protection hazard” and argues that it “lack[s] … any contractual enforcement mechanism” over the violating employees. ( Resp’t’s
Br. 14).
See also
Ex. J-1, ¶ (k). However, Summit retained a “contractual enforcement mechanism” over its direct subcontractor,
Gunner-Houston, if it failed to follow safety rules .
And,
as evidenced by the testimony of both Riddle and Redden, Summit’s superintendents had
de facto
authority to correct the employees of all the subcontractors on site, regardless of whether the employee worked for a direct subcontractor. In
Summit III , the Commission upheld a citation issued under a similar set of facts. There, as here, the general contractor had subcontracted to a framing subcontractor who in turn had subcontracted with another company to perform the “actual framing labor.”
Summit III , 23 BNA OSHC at 1197. Where an employee of the third subcontractor was exposed to an electrical hazard, the Commission upheld the citation issued to the general contractor in part because of its control over the worksite and the
particular hazard .
Id.
at 1205-06. Thus, a direct contractual relationship between a general contractor and the subcontractor whose employees are exposed to the hazard is not the
sine qua non
of liability under the Multi-Employer Worksite Doctrine.

Based on the foregoing factors, the Court concludes that Summit was the controlling employer of the worksite because it “could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”
McDevitt Street
Bovis , Inc. , 19 BNA OSHC at 1109, quoting
Centex-Rooney Construction Co. , 16 BNA OSHC 2127, 2130 (No. 92-0851, 1994). Summit had a duty u nder the Multi-Employer Worksite Doctrine t o protect not only its own employees, but those of other employers engaged in the common undertaking. As indicated
supra , the parties stipulated that although no employees of Summit were exposed to fall hazards, employees from Elite,
Sarrano , and Superior were exposed to fall hazards of 12 to 34 feet.

2. Whether Summit Had Constructive Knowledge of the Violations

“The knowledge element of the prima facie case can be shown in one of two ways.”
Eller-Ito Stevedoring Co., LLC v. Sec’y of Labor , 567 F.
App’x
801, 803 (11th Cir. 2014)
( citing
ComTran
at 1307). “First, where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer.”
Id. (citing
ComTran
at 1307–08). “In the alternative, the Secretary can show knowledge based upon the employer's failure to implement an adequate safety program, with the rationale being that—in the absence of such a program—the misconduct was reasonably foreseeable.”
Id.
at 803-04 ( citing
ComTran
at 1308). However, in the Eleventh Circuit, a “supervisor's ‘rogue conduct’ generally cannot be imputed to the employer in that situation. Rather, ‘employer knowledge must be established, not vicariously through the violator's knowledge, but by either the employer's actual
knowledge, or by its constructive knowledge
based on the fact that
the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety standards].’”
ComTran
at 1316 (citation omitted). Nonetheless, when a supervisor has engaged in that misconduct while simultaneously supervising a subordinate who is also engaged in such misconduct, “the general rule should apply in this case—i.e., that the knowledge of a supervisor of a subordinate employee's violation should be imputed to the employer.”
Quinlan , 812 F.3d at 841.
In this case, the Secretary only argues Summit had constructive knowledge of the violation. (Sec’y Br. 19, 27-44). 39

To start, the Court finds Riddle and Redden were both supervisors for purposes of imputing knowledge to Summit. The Eleventh Circuit has held that “a n employee who has been delegated authority over other employees, even if only temporarily, is considered to be a  supervisor  for the purposes of imputing knowledge to an employer .”
M.C. Dean, Inc. v. Secretary of Labor , 505 F.
App’x
929, 934 (11th Cir. 2013) (quoting
Access Equip. Sys. , 18 BNA OSHC 1718, 1726 (No. 95-1449, 1999)). As to Riddle, the Court has no hesitation finding, and there appears to be little dispute, that he qualified as a supervisor by virtue of being “delegated authority over other employees ….”
Id.
Indeed, he
was in charge of
the entire worksite (Tr. 107-08; Ex. C-7, Ex. R-18) with the authority to: direct the activities of Summit’s assistant superintendents (Tr. 153, 207; Ex. C-7); coordinate and approve the start of work for the subcontractors on site (Tr. 112-13, 136-38); and correct and discipline employees who committed safety violations, including fall protection violations. (Tr. 112-14; Ex. C-7).

However, as to Redden, Summit appears to argue he did not qualify as a supervisor because he had “been assigned responsibility solely over … sitework and hardscape activities, consisting
of sidewalks, paving, and building pads” and had “no supervisory responsibilities with respect to any vertical construction activities.” ( Resp’t’s
Br. 3). 40
The Court finds no merit in Summit’s assertion. It is true, as Summit suggests, Riddle gave Redden no responsibilities regarding framing work of the type that was being performed during Carrion-Ruiz’s inspection. (Tr. 153). Redden likewise emphasized his duties focused on “groundwork” and that the site had its own Framing Superintendent,
Wrightman , whose purview was supervising framing activities. (Tr. 153, 169-71, 198-99, 207). Whatever
Redden’s
nominal duties were, the record indicates that his supervisory authority of the site was far broader than Summit suggests. Although Riddle may have been designated as the General Superintendent of the jobsite,
Redden
was put in charge of the entire jobsite when Riddle was not on site. (Tr. 190-91). Despite
Redden’s
apparent focus being on “groundwork,” he testified several times that he had general supervisory authority to direct the employees of subcontractors to correct any safety violations, including fall protection violations. (Tr. 178-80, 189-90, 193; Ex. C-3, Ex. C-6). Indeed, he had corrected fall protection violations in the past. (Tr. 193; Ex. C-6). Redden also had the authority to report an employee to their direct supervisor observing a safety violation. (Tr. 191-93; Ex. C-3). Riddle also held an expansive view of
Redden’s
authority over the worksite. 41
(Tr. 113-14, 118-19). Thus, although Riddle may not have explicitly assigned Redden duties relates to “vertical construction,” the Court finds he also was a supervisor for purposes of imputing knowledge to Summit.
Cf. M.C. Dean, Inc. ,
505 F.
App’x
at 935 (noting that designation as a supervisor, ability to discipline or recommend discipline, and duty of “monitor[ ing ] safety at the worksite” as evidence an employee is a supervisor);
Rawson Contractors, Inc. , 20 BNA OSHC 1078, 1080 (No. 99-0018, 2003) (supervisory status found for employee who, inter alia, could “supervise the work activities of his crew … and [] ensure that the work was done in a safe manner”);
Propellex
Corp. ,
18 BNA OSHC 1677, 1680
(No. 96-0265, 1999) (ability to report behavior to a worker’s supervisor indicative of supervisory status).

a. Lack of Reasonable Diligence

The Secretary can establish an employer’s constructive knowledge where he demonstrates that the employer could have uncovered the violating conduct with the exercise of reasonable
diligence.
Martin v. Commission , 947 F.2d 1483, 1485 (11th Cir. 1991). “What constitutes reasonable diligence will vary with the facts of each case.”
Id.
The record here amply demonstrates that Summit’s superintendents could have uncovered the fall protection violations with the exercise of reasonable diligence. As evidenced by Carrion-Ruiz’s testimony, a fall protection violation was immediately visible to him upon entering the worksite when he observed workers on a roof from 200 to 300 feet away without using fall protection. Within 10 to 15 minutes of driving around and inspecting the remaining buildings on site, Carrion-Ruiz was able to observe nine fall protection violations on three buildings, all from the ground. In fact, he saw a fall protection violation on every building with active construction that day. Such violations in “plain view” could have easily been uncovered by Summit’s superintendents with reasonable diligence.
See Kokosing Construction Co. , 17 BNA OSHC 1869, 1871 (No. 92-2596, 1996) .

Although Riddle and Redden conducted daily walks of the worksite, the evidence bears out that these walks fell well short of reasonable diligence to root out fall protection violations. Redden repeatedly emphasized that he was focused on groundwork and therefore not generally concerned with fall protection violations, even if he corrected those violations when he found them. (Tr. 153, 169-71, 198-99, 207;
Exs . C-3 & 6). Riddle testified as to no
particular method
he employed during his walks to detect fall protection violations and admitted there was no particular schedule for these walks. (Tr. 121-22). Rather, he testified it was difficult to see whether a worker was tied off from the vantage point of the ground and complained that Carrion-Ruiz’s photographs were “deceiving” because they were taken with the zoom lens of a camera. (Tr. 153-54, 157). However, Summit introduced no evidence to suggest that its superintendents could not utilize similar equipment or other alternative means, such as physically inspecting the roofs, to uncover fall protection violations.
See M.C. Dean, Inc. , 505 F.
App’x
at 935-36
(finding that a supervisor’s further investigation of a skylight, a known hazard, would have uncovered the hazard).

Summit’s duty to exercise reasonable diligence to uncover the violations at issue was particularly acute
in light of
past fall protection violations occurring at the worksite. As a general matter, Riddle testified that it was a common occurrence for workers to forget to tie off while on the buildings’ roofs. (Tr. 120-21). Nelson, Gunner-Houston’s Superintendent, likewise recognized this to be a common occurrence. (Tr. 282). More specifically, however, Morrow observed violations during both his February and March inspections and relayed his findings to Summit’s superintendents. (Tr. 226-27, 253, 265, 268;
Exs . J-1( i ), R-6). Just days before
Carrion-Ruiz ’s
inspection. Redden was informed by an individual that workers were committing fall protection violations. (Ex. C-6). Such knowledge of Summit’s superintendents increased their obligation to exercise reasonable diligence in detecting violations.
See Hackensack Steel Corp. ,
20 BNA OSHC 1387, 1389 (No. 97-0755, 2003) (noting that multiple previous OSHA violations should have led the foreman to do “more to discover safety violations than he did.”).

Summit argues that the “duration” of the violation must be considered and argues “[t]he Secretary did not proffer any evidence to suggest that the violative condition extended for any significant
period of time . Since the timing of the inspection occurred shortly after lunch, it is unlikely that the violative conditions existed for any substantial
period of time .” ( Resp’t’s
Br. 17). Summit is correct in arguing that the “nature, duration, and location” factor into whether an employer’s reasonable diligence would have uncovered a safety violation.
See David
Weekley
Homes , 19 BNA OSHC 1116, 1119 (No. 96-0898, 2000). However, the Court finds Summit’s proffered timeline to be speculative. Carrion-Ruiz testified that his inspection started at 2 p.m. (Tr. 76). Redden could not remember when the inspection occurred at all, or even whether it was in the morning or afternoon. (Tr. 203-04). Riddle’s testimony that the believed Carrion-Ruiz was there “closer to 1:00” was conjecture. Even accepting Riddle’s timeline, the Court notes his testimony at most acknowledged that he knew there was a problem with workers failing to tie off after lunch. However, Riddle admitted that he had taken no measures to address this known problem. (Tr. 121-22).

As to the actual duration of the employees’ exposure, while the issue was not discussed in detail at trial, Carrion-Ruiz’s violation worksheet indicated the durations of the observed employees’ exposure to be at least 20 minutes. (Ex. C-2, p. 2). The Court concludes the employees had been exposed for at least the duration of Carrion-Ruiz’s inspection of the worksite, which took approximately 10 to 15 minutes before Carrion-Ruiz went to the trailer conduct the opening conference. 42
(Tr. 47-50, 78-80). Summit offered no evidence to rebut this minimum duration of exposure or to even suggest that the workers had ever been properly tied off at all while working
on the site the day Carrion-Ruiz visited. 43
Especially given that the violations were plainly visible to Carrion-Ruiz immediately upon entering the worksite, the Court does not find this to be an instance where the condition was “of brief or indeterminate duration” such that Summit’s reasonable diligence could not have uncovered the violations.
See David
Weekley
Homes , 19 BNA OSHC at 1119;
see also Centex-Rooney , 16 BNA OSHC at 2130 (where conditions were in plain view and existed for a significant
period of time , general contractor could have ascertained their existence through the exercise of reasonable diligence). Thus, the Court concludes the Secretary has demonstrated that Summit’s superintendents failed to exercise reasonable diligence to uncover the fall protection violations. As the Court finds both superintendents were supervisors, their constructive knowledge is imputed to Summit.
See
ComTran , 722 F.3d at 1307-08. Summit could have known of the violative condition with the exercise of reasonable diligence.

b. Inadequate Safety Program

The Secretary can independently demonstrate Summit’s constructive knowledge by establishing that it lacked an adequate safety program.
Quinlan v. Sec’y, U.S.
Dep’t
of Labor , 812 F.3d 832, 837 (11th Cir. 2016);
ComTran , 722 F.3d at 1307-08. An adequate safety program requires an employer to have work rules in place to prevent safety violations, adequate communication of those rules to employees through training, and effective enforcement of the work rule through employee discipline.
See
Fla.
Lemark
Corp. v. Sec’y, U.S.
Dep't
of Labor , 634 F.
App’x
681, 688 (11th Cir. 2015) (noting employer’s failure to train its employees in the specific hazard as evidence of an inadequate safety program);
Eller-Ito Stevedoring Co., LLC v. Sec’y of Labor , 567 F.
App’x
801, 803-804 (11th Cir. 2014) (work rules and communication to employees are elements of an adequate safety program) ;
Daniel Int’l Corp. v. Commission , 683 F.2d 361, 364 (11th Cir. 1982) (discussing enforcement of work rule through discipline in the context of an adequate safety program).
See also
S.J. Louis Constr. of Tex. , 25 BNA OSHC 1892, 1894 (No. 12-1045, 2016);
Thomas Indus. Coatings , 23 BNA OSHC 2082, 2088-89 (No. 06-1542, 2012). Here, Summit had multiple deficiencies in its safety program.

i. Summit Did Not Have Work Rule to Address Fall Hazards

As to the existence of a work rule, the Secretary correctly observes the record contains little evidence of the existence of a specific work rule in place to address fall hazards or fall protection violations. Riddle made a passing reference to Summit’s general rule that “if they’re above four
foot , then they’re to be tied off.” (Tr. 96). Redden testified that subcontractors on the site were required to follow “Summit’s rules and Gunner Houston’s rules,” without further elaboration as to the contours of those rules. (Tr. 196). Although Summit had a fall protection plan which contained rules regarding fall protection, the testimony at trial bore out that this plan was only for Summit’s employees; Summit did not train or instruct its subcontractors in this plan and relied on its subcontractors to have their own fall protection plans. (Tr. 129, 232-33; Ex. C-12). The Court therefore finds little evidence of a work rule that was “ sufficiently precise to implement the requirements of the standard or be functionally equivalent to it.”
Beta Constr. Co. , 16 BNA OSHC 1435, 1444 (No. 91-102, 1993).

ii. Summit Did Not Adequately Communicate Its Work Rules

Even assuming,
arguendo , that Summit had a work rule to address fall hazards, the evidence further demonstrates that Summit put minimal effort into communicating the rule to workers at the worksite. The only training Summit gave to workers at the worksite was a fifteen-minute training video and only a portion of this video covered the subject of fall protection. (Tr. 93-94, 195-96; Ex. J-1(h)). Although Summit ostensibly had a sticker-on-hardhat system in place to be able to verify whether a given worker had viewed the video, Riddle later admitted there was no system in place to ensure every worker had indeed viewed it. (Tr. 102-05).

Other than this video, the precise content of which is unclear from the record, there is little evidence that Summit, or anyone else for that matter, trained workers at the worksite to protect themselves from fall hazards. Morrow offered brief, indeterminate testimony regarding training he
may
have given Gunner-Houston’s subcontractors. (Tr. 237). And, although Nelson testified that Gunner-Houston provided its subcontractors with training in fall protection, he offered no specifics as to the content of this training and stated there were no records of workers
actually attending
it. (Tr. 285-287). Rather, Nelson repeatedly
referred back
to the video shown by Summit as evidence of adequate training. (Tr. 273-74, 285-86). Although Summit introduced records of weekly safety meeting topics prepared by Morrow, none of the records submitted related to fall protection. (Ex. R-7). In any event, generally only superintendents, not the subcontractors’ employees, attended these meetings. (Tr. 140-41; Ex. C-16). Finally, there is evidence of safety meetings held by
Gunner-Houston. (Ex. C-16). However, only one of these meetings related to “Falls,” and it was held in response to Carrion-Ruiz’s inspection, not as a means of communicating a work rule to employees before they encountered fall hazards. (Tr. 145-46, 277-78; Ex. R-7). Therefore, the Court concludes Summit did not adequately communicate any work rules regarding fall protection to the workers at the worksite.

iii. Summit Did Not Effectively Monitor or Discipline Workers

The Secretary has further demonstrated that Summit failed to consistently monitor and discipline employees who committed fall protection violations. As to monitoring, Summit points to the hiring of Morrow as a safety consultant for worksite as well as the walks of the worksite conducted by Summit’s superintendents. ( Resp’t’s
Br. 16-17). While it is true that Morrow visited the worksite and corrected any fall protection violations he observed, he only visited the worksite once a month. (Tr. 212-13, 226-27, 250-51; Ex. R-6). Riddle and
Redden
both testified they walked the worksite at least once daily and would correct safety violations if any were observed. (Tr. 87-88, 112-13, 190-91;
Exs . C-6 & 7). However, Riddle admitted there was no schedule to these walks, and no effort was made to ensure that all workers were properly employing fall protection at any point during the day. (Tr. 121-22). Redden testified similarly. (Tr. 192). There was also no evidence that Summit’s superintendents visited the roofs on which the framers were working to monitor the use of fall protection equipment even though Riddle admitted it was substantially more difficult to detect fall protection violations from the ground. (Tr. 153-54). Redden focused almost entirely on the ground during his walks of the worksite. (Tr. 153, 170-71, 198-99; Ex. C-3, Ex. C-6). Further, the walks conducted by Summit’s superintendents were clearly not sufficient to uncover any of the nine fall protection violations that occurred at the worksite on the day of Carrion-Ruiz’s inspection.

In examining Summit’s monitoring efforts at the worksite, the Court notes that, prior to Carrion-Ruiz’s inspections, Summit’s superintendents: (1) had been informed by Morrow of fall protection violations occurring at the worksite during his visits in both February and March (Tr. 268); (2) had been informed by another individual a few days before of potential fall protection violations at the worksite (Ex. C-6); and (3) knew that fall protection violations were a common issue at the worksite (Tr. 120-21). The Court finds, especially
in light of
these facts, Summit’s monitoring efforts were inadequate.
Cf. Stahl Roofing Inc. , 19 BNA OSHC at 2182 (finding close supervision was not necessary
in light of
frequent visits to the worksite of different managers and
safety officers);
Hackensack Steel Corp. , 20 BNA OSHC at 1394 (finding closer supervision of employees was required in part because of the employer’s “lengthy history of OSHA citations for failure to use safety belts and hardhats”).

As to enforcement, Summit ostensibly had a progressive disciplinary policy in force at the worksite. (Ex. C-13). As written, the policy called first for verbal warnings, several of which may be issued before resorting to two successive written warnings, and finally termination. However, Riddle testified to an entirely different disciplinary policy that called for “one verbal warning. Second time, we’ll pull them off the roof. Make them sit out a day. And then the third time, they’re gone.” (Tr. 116). Nelson’s account tracked Riddle’s. (Tr. 279-80). Whatever disciplinary policy may have been nominally in force at the worksite, the Court finds little evidence in the record to demonstrates that this policy was ever meaningfully or uniformly enforced.
See Daniel Int’l Co. v. Commission , 683 F.3d 361, 364 (11th Cir. 1982);
Gem Indus., Inc. , 17 BNA OSHC 1861, 1863 (No. 93-1122, 1996),
aff’d , 149 F.3d 1183 (6th Cir. 1998) (unpublished). The only documented instances of employee discipline in the record were for another worksite altogether. (Ex. C-19). There is no documentary evidence to suggest that the progressive disciplinary policy was followed at the worksite, despite the policy calling for written documentation. (Ex. C-13). Summit’s superintendents, as well as Nelson and Morrow, testified with no particularity as to verbal warnings allegedly given for fall protection violations at the worksite. (Tr. 114, 194-95, 242, 289). As to the employees observed by
Carrion-Ruiz , there is no evidence that they were ever disciplined in connection with their violations. Indeed, by all accounts, none of the employees were disciplined at all. 44
(Tr. 86-86, 117, 243). The Court concludes Summit did not have a work rule regarding fall protection that was “uniformly and effectively communicated and enforced” at the worksite.
See Daniel Int’l Co. v. Occupational Safety & Health Review Comm'n , 683 F.2d at 364.

B. Characterization

The Secretary has classified the violation as “serious.” A violation is classified as “serious” under the Act if “there is substantial probability that death or serious physical harm could result.”
29 U.S.C. § 666(k). The Secretary need not show there was a substantial probability an accident would occur, only that if an accident did occur, serious physical harm could result.
Mosser Constr., Inc. , 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010). Here, the workers observed without employing fall protection were exposed to fall distances of at least 12 feet with those working near the roof edge being exposed to a fall distance of 34 feet. (Tr. 155-57; Ex. J-1 ¶ (e)). Both distances are well
in excess of
the six-foot requirement for fall protection under 29 C.F.R. § 1926.501(b)(13). The Court finds serious physical serious harm could result from falls of these heights and thus the violation was properly categorized as serious.
See
Safety Standards for Fall Protection in the Construction Industry,
59 Fed. Reg. 40,672, 40,682 (Aug. 9, 1994) (to be codified as 29 C.F.R. pt. 1926) (noting the risk of fatality or injury from falling from heights of even six to ten feet) . Therefore, the citation was a serious violation.

C. Affirmative Defense

Summit raised numerous affirmative defenses in its Answer. (Answer ¶¶ IX-XIII). However, in its pretrial statement, Summit only preserved unavoidable employee misconduct for trial. ( Resp’t’s
Prehearing Statement ¶ VI(b)). Likewise, Summit’s post-trial brief only addressed this defense. ( Resp’t’s
Br. 17-18). The Court deems the rest of Summit’s affirmative defenses waived. In its post-trial brief,
Summit
argues the defense of unavoidable employee misconduct “has been applied by the Commission in instances where the cited contractor was found to be the controlling employer ….” ( Resp’t’s
Br. 18). 45
Summit goes on to argue that the defense requires a progressive discipline policy, but not in the context of a multi-employer worksite, 46
and further that, despite Summit having established the elements of the defense, this “affirmative defense is inapplicable [in multi-employer worksite cases] as it establishes a higher duty on a controlling
employer than the burden required to be satisfied by the Secretary under its own application of controlling employer liability under the OSH Act.” ( Resp’t’s
Br. 18). Whatever the Court might make of these scattershot arguments, Summit has only cursorily addressed the requisite elements and failed to cite to the record to support its burden of proof.
See
ComTran , 722 F.3d at 1314 (respondents before the Commission bear the burden of proof for affirmative defenses);
Marson Corp. , 10 BNA OSHC 1660, 1662 (No. 78-3491, 1982) (burden of proof for unavoidable employee misconduct defense lies with the employer). The Court therefore concludes Summit has failed to carry its burden of proof as to this affirmative defense.

IV. PENALTY DETERMINATION

In determining the appropriate penalty for affirmed violations, section 17(j) of the Act requires the Court to give due consideration to the four criteria: (1) the size of the employer’s business; (2) the gravity of the violations; (3) the good faith of the employer; and (4) the employer’s prior history of violations. 29 U.S.C. § 666(j) ;
D & S Grading Co. ,
899 F.2d 1145, 1148 (11th Cir. 1990). Gravity is the primary consideration and is determined by the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood of an actual injury.
J.A. Jones Constr. Co. , 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993). It is well established that the Commission and its judges conduct
de novo
penalty determinations and have full discretion to assess penalties based on the facts of each case and the applicable statutory criteria.
See
ComTran ,
722 F.3d at
1307;
Valdak
Corp. , 17 BNA OSHC 1135, 1138 (No. 93-0293, 1995),
aff’d
73 F.3d 1466 (8th Cir. 1995);
Allied Structural Steel Co. , 2 BNA OSHC 1457, 1458 (No. 1681, 1975).

Here, the Secretary proposed a penalty of $11,640. Carrion-Ruiz indicated that the gravity of the violation was considered high because of the heights to which the employees were exposed and their proximity to the roof edge. (Tr. 63; Ex. C-2). A 10% reduction in penalty was proposed based on Summit’s size but no reduction for good faith or history was proposed, since “[t]here was history.” (Tr. 63-64; Ex. C-2). Summit has not disputed any of the factors leading to the Secretary’s proposed penalty.

The Court finds the proposed penalty appropriate. Particularly as to gravity, the Court notes that nine employees were exposed to fall hazards of 12 to 34 feet and that a fall from such heights could lead to serious injury or death. Furthermore, Summit was not entitled to a good faith reduction, since, as noted above, Summit’s safety program was inadequate to detect or prevent fall
protection violations despite Summit’s superintendents being on notice that fall protection violations were common at the worksite. Thus, giving due consideration to the size of the business, the gravity of the violation, good faith, and history, the Court finds the Secretary’s proposed penalty of $11,640 to be appropriate.

V. ORDER

IT IS HEREBY ORDERED THAT
the Citation is
AFFIRMED
as a serious violation and Summit is
ASSESSED
and directed to pay to the Secretary a civil penalty of $11,640.

SO
ORDERED .

/s/            

JOHN B. GATTO, Judge

Dated: July 24, 2020

Washington, D.C.

"

1
The worksite at issue and
Summit’s principal place of business are both in Florida, which is
in the
Eleventh Circuit.

2
The Commission will generally apply its own precedent
when an issue has
not
been
decided or directly addressed by
the relevant
c ircuit
c ourt.

See , e.g.,
Angel Bro s.
Enters ., Ltd. ,
No. 16-0940, 2020 WL 4514841 , at *3 ​​ (OSHRC July 28, 2020),
aff’d ,
18 F. 4th 827 (5th Cir. 2021) .

3
In an attempt to distinguish
McDevitt
from the circumstances of the instant case,
Summit
incorrectly
asserts
that
the Commission
in
McDevitt
found “liability for an employer who exposed his own employees to hazardous violative conditions
. . .
. ” In
fact,
the
Commission state d
in the
decision’s
first paragraph ,
after describing the violative conditions , that
“ [i] t is undisputed that McDevitt did not create these conditions and none of its own employees were exposed to them. ” McDevitt ,
19 BNA OSHC at
1108 .

4
All three cases were decided in the Fifth Circuit, before the circuit split to form the Eleventh Circuit, and therefore are considered Eleventh Circuit precedent. Bonner v. City of Prichard, Ala. , 661 F.2d (11th Cir. 1981) (“We hold that the decisions of the United States Court of Appeals for the Fifth Circuit  . . , as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.”). Summit also relies on
another
Fifth Circuit case,
Melerine v. Avondale Shipyards, Inc. , 659 F.2d 706 (5th Cir. 1981) , but
as noted in
McDevitt , this decision was issued
after
the Fifth Circuit split and, therefore, is not Eleventh Circuit precedent. McDevitt ,
19 BNA OSHC at 1110 n.8.

5
On review , t he Secretary
claims
th ree
Eleventh Circuit decisions
show
that the circuit has, in fact,
spoken to the issue of multi-employer liability by
affirm ing
citations
issued under
the
Secretary’s
citation policy:
Pace Construction Corp. v. Sec’y of Labor , 840 F.2d 24 (11th Cir. 1988) (unpublished table decision);
Calloway v. PPG Industries, Inc. ,
155 F. App’x 450, 455 (11th Cir. 2005) (unpublished); and
Southern Pan Services Co. , 685 F. App’x 692, 695 (11th Cir. 2017) (unpublished). All of
these decisions, however, are unpublished and, therefore,
are not binding precedent
in the Eleventh Circuit.

11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”). Moreover,
Southern Pan
concerns an exposing
employer rather than a controlling employer. 685 F. App’x at 695. Calloway —like
Horn
and
Barrera —is a tort case . 155 F. App’x at 455. And
Pace Construction
is an unpublished table decision that affirms an administrative law judge’s order without explanation. 840 F.2d 24.

Thus , the Eleventh Circuit has neither expressly accepted nor rejected the multi-employer worksite doctrine as it pertains to controlling employer liability.

6
In addition to the Fifth Circuit in
Hensel Phelps , seven other circuit courts have adopted these principles. Solis v. Summit Contractors, Inc. , 558 F.3d 815, 820 (8th Cir. 2009);
Universal Constr. Co. v. OSHRC , 182 F.3d 726, 731 (10th Cir. 1999);
United States v. Pitt-Des Moines, Inc. , 168 F.3d 976, 983 (7th Cir. 1999);
R.P. Carbone Constr. Co. v. OSHRC , 166 F.3d 815, 817-19 (6th Cir. 1998);
Beatty Equip. Leasing, Inc. v. Sec’y of Labor , 577 F.2d 534, 536-37 (9th Cir. 1978);
New England Tel. & Tel. Co. v. Sec’y of Labor , 589 F.2d 81, 81-82 (1st Cir. 1978);
Brennan v. OSHRC,
513 F.2d 1032, 1038 (2d Cir. 1975).

7
Summit raises two additional arguments with respect to multi-employer
liability . First, Summit
claims
that the Secretary’s
citation
policy is inconsistent with 29 C.F.R. § 1910.12(a). Th is argument
has been
explicitly addressed and rejected in a prior
Commission
case. Summit , 23 BNA OSHC at 1199-1203 (concluding “that the plain meaning of § 1910.12(a) does not invalidate the Secretary’s multi-employer citation policy as it applies to a controlling employer on a construction site,” and agreeing with Eighth Circuit’s analysis of issue in
Summit , 558 F.3d 815). We
find
no reason to revisit
th is
issue .

Second, Summit raises
concerns
about
the propriety of deferring to the Secretary’s interpretation of section 5(a)(2) of the OSH Act , 29 U.S.C.
§ 654(a)(2),
under
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). The Commission, however, has never relied on the Secretary’s interpretation of section 5(a)(2) to find that this statutory provision allows for the multi-employer worksite doctrine. Rather, the Commission’s precedent on this issue is based on
the
provision’s
plain meaning , which the Commission has reaffirmed multiple times in decisions issued after
Chevron . See , e.g.,
Summit , 23 BNA OSHC at 1203 (recognizing that “[t]he grounding of the multi-employer citation policy in [section] 5(a)(2) of the [OSH] Act has long been recognized by both the courts and the Commission”) ;
McDevitt , 19 BNA OSHC at
11 09
(“ Under Commission precedent, an employer who either creates or controls the cited hazard has a duty under
[section]   5 ( a )( 2 ) of the Act, 29 U.S.C. §
[654] (a)(2), to protect not only its own employees, but those of other employers
‘ engaged in the common undertaking. ’
”
( citing
Anning-Johnson Co. , 4 BNA OSHC 1193, 1199 (No. 3694, 1976) (consolidated))) .
We therefore reject
this
argument.

8
Summit further argues that the judge should not have relied on
Kokosing Construction Co. , 17 BNA OSHC 1869 (No. 92-2596, 1996), to support his finding of constructive knowledge because that case involved a n
employer that failed to observe
its own
employees’ violations. We agree that the judge erred in relying “on exposing employer precedent as the benchmark for how reasonable diligence or care is assessed for a controlling employer whose own employees are not exposed.” Suncor , 2019 WL 654129, at *6. As explained in
Suncor , relying on such precedent is “contrary to
Summit
and the Secretary’s own [Multi-Employer Citation Policy]” because “a controlling employer’s duty to exercise reasonable care ‘is less than what is required of an employer with respect to protecting its own employees. ’ ”
Id.
(cited authority omitted).

9
Summit ’s contention on review
that the compliance officer could observe the violative conditions only with the assistance of a zoom lens on his camera
is not supported by t he record. The compliance officer never testified that his observations were possible only with the aid of a zoom lens, and Summit’s counsel did not ask the compliance officer to further clarify his otherwise straightforward testimony that he saw workers with no fall protection exposed to fall hazards.

10
Relying on testimony from
Summit’s
superintendent, the judge found that on the day of the OSHA inspection, “no one from Summit went around in the morning or afternoon to see if [the framers] were tied off and further that there was no specific schedule for those walks.” This mischaracterizes the superintendent’s testimony, who explained that on a typical day, Summit’s superintendents “don’t monitor everyone getting up on the roof,” but they do “walk the site” after “tak[ing] care of [their] business in the morning.” While he acknowledged that Summit had no “designated schedule” for making certain the workers were tied off “first thing in the morning” and “after lunch,” he did not say—and was not asked—whether he or one of the two assistant superintendents had conducted a walkaround inspection at some point during the morning of the day of OSHA’s inspection, before the compliance officer arrived.

11
The assistant site superintendent handl ed
delivery logistics and direct ed
the work of landscapers, irrigation, utilities, and road and sidewalk construction. The judge
emphasized the fact that this assistant superintendent “focused on groundwork” during his daily walks. G iven the division of duties between the two assistant superintendents,
however,
the record
does not
show that the assistant site superintendent failed to exercise reasonable care by focusing on the work activities
for which he was
responsible .

12
“[L]ess frequent inspections by a controlling employer may be appropriate if its contractor has a demonstrated history of compliance and sound safety practices.” Suncor ,
2019 WL 654129,
at 9. More frequent inspections may be necessary, however, “if the controlling employer knows that the other employer has a history of non-compliance” or, “especially at the beginning of the project, if the controlling employer had never before worked with this other employer and does not know its compliance history.” Instruction CPL 02-00-124, Multi-Employer Citation Policy ¶   X.E.3.d.;
Suncor , 2019 WL 654129, at 9 (citing to Multi-Employer Citation Policy and quoting ¶ X.E.3.d in parenthetical).

13
The judge found that Summit lacked an adequate safety
program
and this failure “independently” establishe s
Summit’s constructive knowledge of the violative conditions. With respect to exposing
employers, a
theory of constructive knowledge based on an employer’s inadequate safety program is well-established in Commission
precedent, including in cases arising in the Eleventh Circuit . See , e.g.,
MasTec N. Am., Inc. , No. 15-1574, 2021 WL 2311875, at *2 (OSHRC Mar. 2, 2021) ( “[I]n the Eleventh Circuit, the Secretary may establish employer knowledge
‘
. . .
through the employer ’ s   .   .   . failure to implement an adequate safety program. ’
”
( citing
Quinlan v. Sec’y , 812 F.3d 832, 837 (11th Cir. 2016))) ;
Burford’s Tree, Inc. , 22 BNA OSHC 1948, 1950-51 (No. 07-1899, 2010) (finding constructive knowledge based on employer’s failure to adequately monitor compliance with safety program) .

But
neither
the Commission
nor the Eleventh Circuit
has ever relied on that theory to determine whether a
controlling
employer had constructive knowledge of violative conditions to which only another employer’s employees were exposed on a multi-employer worksite. Moreover, doing so here
would be concerning
given that Summit lacked a direct contractual relationship with the three framing subcontractors whose employees were exposed to the fall hazards. Cf. David Weekley , 19 BNA OSHC at 1117-18 (vacating safety program violation alleged under 29 C.F.R. § 1926.20(b)(1), where cited controlling employer lacked contractual relationship with three framing contractors who employed exposed workers, and record did not show controlling employer’s “conduct was insufficient, particularly in light of the combination of its limited onsite presence and actual exercise of safety responsibilities”). While such evidence may be relevant to determining whether a controlling employer has exercised reasonable care in relation to its secondary safety role on a multi-employer worksite, we find it inappropriate to analyze the adequacy of Summit’s own safety program as an independent basis for proving constructive knowledge. Suncor , 2019 WL 654129,
at *6.

14
The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who heads OSHA. See Order No. 4–2010 (75 FR 55355), as superseded in relevant part by 1–2012 (77 FR 3912). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue citations and proposed penalties.
See
29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA” are used interchangeably herein.

15
The Act contemplates various grades of violations of the statute and its attendant regulations— “willful”; “repeated”; “serious”; and those determined “not to be of a serious nature” (referred to by the Commission as “other-than-serious”). 29 U.S.C. § 666. A serious violation is defined in the Act; the other grades are not.
See
29 U.S.C. § 666(k) .

16
The citation was attached as an exhibit to the complaint and was also adopted by reference in the complaint. ( Compl . Ex. A). Commission Rule 30(d) provides that “[s] tatements
in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d).

17
At trial, the stipulations of joint Exhibit J-1 were read into the record, and the parties agreed to additional stipulations not originally included in the exhibit. (Tr. 8-12). The parties filed an updated version of the exhibit that included all stipulations of the parties. (Tr. 12). Any references to Exhibit J-1 are to the updated version of the joint exhibit.

18
If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it shall be deemed so.

19
The Court uses the parties stipulated spelling of “ Sarrano ” rather than the spelling “Serrano” as reflected in the trial transcript. ( E.g. , Tr. 36).

20
Redden also referred to as the “Finishing Superintendent.” (Tr. 207).

21
The extent of Summit’s responsibility lies at the heart of a material dispute between the parties, namely Summit’s responsibility as a “controlling employer” under the Multi-Employer Worksite Doctrine. (Sec’y’s Br. 9-15;
Resp’t’s
Br. 10-17).
See generally Summit Contractors, Inc. , 22 BNA OSHC 1777, 1780-81 (No. 03-1622, 2009) (explaining the Multi-Employer Worksite Doctrine for controlling employers). The Court addresses this issue more fully in its analysis of Summit’s liability for the violations.
See
Part III(A)(3),
infra .

22
Based on the photos in Morrow’s report, the “top plate” appears to be the top board of a wall frame. (Ex. R-6). The approximate distance from the top plate of a first-floor wall to the ground is 10 feet. (Tr. 261-62).

23
The parties stipulated that on February 28, 2018, “Morrow observed at least one fall protection violation involving a subcontractor employee and ordered corrective action and issued verbal warnings.” (Ex. J-1 ¶ ( i )). And in the February 28 inspection report, Morrow included the phrase: “ MOST
trades were
following OSHA Standards
( FALL PROTECTION )
during Morrow & Associates audit/inspection.” (Ex. C-10, p. 2) (emphases in original). At trial, when asked about the stipulation and this phrase included in the inspection report, Morrow testified it did not necessarily mean that he observed a fall protection violation; rather, he might have seen someone about to commit a violation, which he would have corrected. (Tr. 216-18). However, on cross-examination, Morrow reviewed the photos attached to the report in Summit’s Exhibit 6 and admitted there was at least one fall protection violation depicted. (Tr. 246-49;
see also
Ex. R-6).

24
According to Morrow, a fall protection plan for “garden-style homes do[es] not have to be site-specific if all the hazards are addressed.” (Tr. 231). But see
29 C.F.R. § 1926.502(k)(1) (requiring a fall protection plan for residential construction work to be “ developed specifically for the site”).

25
Redden testified he believed the individual was an OSHA officer (Tr. 172-75;
see also
Ex. C-6), but the Secretary’s counsel represented it was not an OSHA officer. (Tr. 183). Regardless of the identity of this individual, the salient fact to the Court is that
Redden’s
attention had been drawn to potential fall protection violations a few days before the inspection leading to the issuance of the citation.

26
Carrion-Ruiz did not know the exact date the photographs were taken, only that they were taken some time before April 17. The parties agreed to the admission of the photographs into evidence for the purpose of establishing Summit’s knowledge, without agreeing to the exact date they were taken. (Tr. 29-31).

27
As indicated
supra , the Secretary delegated his authority under the Act to the Assistant Secretary of Labor for Occupational Safety and Health. The Assistant Secretary has promulgated the occupational safety and health standards at issue.

28
The employer or the Secretary may appeal a Commission order to the federal court of appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office, and the employer also may appeal to the District of Columbia Circuit.
See
29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in Florida, in the Eleventh Circuit, where Summit’s principal office is also located, and Summit has indicated its intent to appeal there. ( See
29 U.S.C. § 660(b);
Resp’t’s
Br. 9). The Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the Commission generally has applied the precedent of that circuit in deciding the case— even though it may differ from the Commission's precedent.”
Kerns Bros. Tree Serv. , 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). The Court applies the precedent of the Eleventh Circuit in deciding the case where it is highly probable that the case will be appealed.

29
The cited standard defines a “lower level” in relevant part as
“ those
areas or surfaces to which an employee can fall. Such areas or surfaces include, but are not limited to, ground levels, floors, platforms …” 29 C.F.R. § 1926.500(b). Here, the parties stipulated workers were exposed to fall hazards of “12 to 34 feet.” (Ex. J-1 ¶ (e)). These distances represented either a fall from a floor to the floor below it, which approximated 12 feet, or a fall from a roof edge to the ground below, which approximated 34 feet. (Tr. 155-57).

30
Summit made a “threshold” challenge to its liability as a controlling employer under the Multi-Employer Worksite Doctrine. ( Resp’t’s
Br. 5). The Secretary addresses this argument in the context of the first element of his burden, i.e., whether the standard applies. (Sec’y’s Br. 8-15). However, under Commission precedent, “the focus of the Secretary's burden of proving that the cited standard applies pertains to the cited conditions, not the particular cited employer.” Ryder Transp. Servs. , 24 BNA OSHC 2061, 2064 (No. 10-0551, 2014);
see also Secretary, U.S.
Dep’t
of Labor v. Action Elec. Co. ,
868 F.3d 1324, 1335-36 (11th Cir. 2017) (analyzing the application of a standard to the actual activities of the employees). Thus, the Court does not, as the parties did, address Summit’s liability under the Multi-Employer Worksite Doctrine in the context of whether the cited standard applies.

31
Although OSHA has a
Multi - Employer   Citation   Policy ( OSHA Instruction CPL 02-00-124 § X.E.1 (Dec. 10, 1999)), the Commission has held it is not a substantive rule because it does not “create liability on an employer” separate from the requirements of the Act.
Summit Contractors, Inc. , 22 BNA OSHC 1777, 1779-80 (No. 03-1622, 2009) (citing
Limbach Co. ,
6 BNA OSHC 1244, 1245-46 (No. 14302, 1977) (finding the same for the previous policy)).

32
The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. Immediately after the split, the Eleventh Circuit stated in
Bonner v. City of Prichard, Alabama , 661 F. 2d 1206 (11th Cir. 1981), that any opinion issued by the Fifth Circuit before the close of business on September 30,
1981
is binding precedent on the Eleventh Circuit .

33
The Commission noted that one of the cited cases,
Southeast Contractors, Inc. v. Dunlop , 512 F.2d 675 (5th Cir. 1975), was a
per
curiam
decision which adopted the dissenting Commissioner’s reasoning before the Commission had even adopted the Multi-Employer Worksite Doctrine. Id.
at 1110-11. As for the other two cases,
Horn
and
  Barrera
v. E.I.
duPont
de Nemours & Co. , 653 F.2d 915, 920 (5th Cir. 1981), the Commission noted they were “tort cases whose precedential value in the context of a case before the Commission is questionable.”
Id.
at 1112, citing
Frohlick
Crane Service, Inc. v. Occupational Safety & Health Review Comm'n , 521 F.2d 628, 631 (10th Cir. 1975) (“This is not a tort case. Rather, it is an administrative proceeding brought under remedial legislation designed to provide a safe place to work for every working man and woman in the Nation. The Act should not be given a narrow or technical construction...”).

34
Under
Chevron ,
“[w]hen a court reviews an agency’s construction of the statute which it administers ... [and] the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Gonzalez v. U.S. Atty. Gen. , 820 F.3d 399, 404 (11th Cir. 2016), quoting
Chevron , 467 U.S. at 842-43. “In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”  Gonzalez , 820 F.3d at 404, quoting
Chevron , 467 U.S. at 844.

35
The Court therefore declines to go through the “exhaustion of traditional tools of statutory interpretation” as laid out in Summit’s brief. ( Resp’t’s
Br. 8-9). The language relied on for Summit’s request was taken from the
Kisor
decision, which dealt with deference to an agency’s interpretation of its own regulations, not the statute the agency is charged with administering, which implicates
Chevron
deference.
See Gonzalez , 820 F.3d at 404. The Chief Justice’s concurring opinion in
Kisor
made clear the decision did not impact such a scenario under
Chevron , and his vote was necessary to the court’s opinion.
See
Kisor , 139
S.Ct . at 2425.

36
The Commission initially dealt with the continuing validity of
Summit I
in
Summit Contractors, Inc. ,
22 BNA OSHC 1777 (No. 03-1622, 2009) (“ Summit II ”) , which
was decided on remand from the Eighth Circuit.
See Solis v. Summit Contractors, Inc. , 558 F.3d 815 (8th Cir. 2009). The Eighth Circuit concluded that a plain reading of 29 C.F.R. § 1910.12(a) did not preclude liability under the Multi-Employer Worksite Doctrine for a controlling employer where none of its own employees were exposed to the hazard.
Summit Contractors, Inc. , 558 F.3d at 824-25. It was perhaps unclear in
Summit II
whether the Commission was simply following the Eighth Circuit’s decision as the law of the circuit or adopting the Court’s reasoning outright as the Commission’s view. However, the Commission later made clear in
Summit III , that, while
Summit II
was decided by the “law of the case,” the Commission was overruling
Summit I
entirely based on a reconsideration of the Commission’s position .
Summit III , 23 BNA OSHC at 1201. The Commission has since applied
Summit III
in cases arising outside the Eighth Circuit. See, e.g. ,
Suncor Energy (U.S.A.), Inc. ,
2019 WL 654129
(No. 13-0900, 2019)
(Tenth Circuit);
Pullman Power, LLC ,
25 BNA OSHC 1474 (No. 07-1796, 2015) (Fourth Circuit). The Court therefore concludes
Summit III
is applicable to this Eleventh Circuit case.

37
For example, the evidence demonstrated that, following Carrion-Ruiz’s inspection and observation of the fall protection violations, Summit held a meeting
on the subject of fall
protection. (Tr. 145-46; Ex. R-7).

38
See, e.g. ,
Summit III , 23
BNA OSHC at 1197 (examining the respondent’s control over a particular electrical hazard in evaluating whether it was a controlling employer for purposes of abating that hazard).

39
A large portion of the Secretary’s argument for constructive knowledge is made in the context of arguing against Summit’s unavoidable employee misconduct defense. (Sec’y’s Br. 27-44). As the Eleventh Circuit noted in
ComTran , “t he Secretary's alternative method to show employer knowledge and the unforeseeable employee misconduct affirmative defense involve an identical issue: whether the employer had an adequate safety policy.”
ComTran , 722 F.3d at 1308 n.3 (quoting
New York State Elec. & Gas Corp. v. Sec’y’s of Labor , 88 F.3d 98, 106 (2d. Cir. 1996)). Because the Secretary bears the burden of establishing the inadequacy of an employer’s safety measures in the first instance ( see
ComTran , 722 F.3d at 1309), and further because the Court finds Summit has waived its affirmative defense of unavoidable employee misconduct ( see
Part III(C),
infra ), the Court considers the Secretary’s arguments in the context of constructive knowledge.
Cf. Burford’s Tree, Inc. , 22 BNA OSHC 1948, 1951-52 (No. 07-1899, 2010) (noting that the factors for constructive knowledge and the factors for unavoidable employee misconduct are the “same factors” and considering them accordingly),
aff’d , 413 F.
App’x
222 (11th Cir. 2011) (unpublished).

40
Summit made this assertion in its proposed findings of fact without proffering any legal analysis in its brief. ( Resp’t’s
Br. 3). The Secretary did not address the issue at all.

41
At one point, apparently referring to himself and Redden, Riddle testified: “We’re two individuals managing 200 individuals.” (Tr. 124).

42
The record is less clear if the exposed employees continued working on the roofs without fall protection while the Carrion-Ruiz conducted the opening conference. However, nothing in the record indicates the employees were brought down from the roofs in between the time Carrion-Ruiz was directed to the trailer by Redden and the holding of the opening conference.

43
Although Riddle and Redden testified that they walked the worksite at least once a day, neither testified that his respective walk had occurred by the time Carrion-Ruiz arrived for the inspection. Riddle testified that no one from Summit went around in the morning or afternoon to see if workers were tied off and further that there was no specific schedule for those walks. (Tr. 121-22).

44
Nelson testified that 33 workers, representing those who attended the fall protection meeting
after
Carrion-Ruiz’s inspection, were fired in connection with Carrion-Ruiz’s observations. (Tr. 280, 283-84; Ex. R-7). Even taken on its own terms, this testimony makes little sense because Carrion-Ruiz only observed nine employees committing fall protection violations, not all 33 people who later attended the fall protection meeting. (Tr. 49). In any event, Nelson later retracted his statement and said he did not know if anyone had been disciplined at all. (Tr. 290-92).

45
Summit’s “ Id. ” citation for this proposition is ambiguous, as it could refer to either of the two cases cited in the preceding paragraph:
American Sterilizer Co. , 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997) and
Eutaw Constr. Co. , 23 BNA OSHC 2137, 2141 (No. 10-2329, 2011). However, neither case stands for the proposition stated
by Summit .
American Sterilizer
did not involve a multi-employer worksite and
Eutaw , which was an unreviewed judge decision with no precedential value, did involve a multi-employer worksite but the respondent in that case had asserted the defense
with regard to
its own employee, not the employee of a subcontractor, as Summit has done here.

46
Summit cites
Evergreen Constr. Co. , 26 BNA OSHC 1615 (No. 12-2385, 2017) for this proposition. However, in that case the two Commissioners then comprising the Commission were unable to reach agreement on review and therefore vacated the direction for review, leaving the judge’s decision undisturbed.
Id. , 26 BNA OSHC at 1616.