Summit Contractors Inc.

Read the official release (oshrc.gov)

Plain-English summary

Summit Contractors supplied a generator and spider box without ground-fault circuit interrupter protection for subcontractor employees at an apartment construction project. The Commission overruled its earlier Summit decision and restored its precedent allowing citations to controlling and creating employers on multi-employer construction sites, even when their own employees are not exposed. Summit controlled the electrical service and could have prevented or corrected the hazard. It also created the condition by ordering and requiring use of noncompliant equipment. The superintendent's failure to request or inspect for GFCI protection established constructive knowledge. The Commission affirmed the serious citation and assessed a $1,225 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.404(b)(1)(ii)
• Outcome: Serious GFCI citation affirmed with a $1,225 penalty.
• Key point: A general contractor may be liable for hazards affecting subcontractor employees when it controls or creates the cited condition.

Full text (OSHRC public release)

Summit Contractors, Inc., Docket No. 05-0839

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 05-0839

SUMMIT CONTRACTORS, INC.,

Respondent.

APPEARANCES:

Gary Stearman, Attorney; Daniel J. Mick, Counsel for Regional Trial Litigation; Charles F.
James, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor for
Occupational Safety and Health; Howard M. Radzely, Solicitor of Labor; U.S. Department of
Labor, Washington, DC

For the Complainant

Robert E. Rader, Jr., Esq.; Rader & Campbell, P.C., Dallas, Texas

For the Respondent

DECISION

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

BY THE COMMISSION:

The Occupational Safety and Health Administration (“OSHA”) issued a citation to
Summit Contractors, Inc. (“Summit”), alleging that Summit failed to provide ground-fault circuit
interrupter (“GFCI”) protection on two pieces of equipment it ordered for use at a multi-employer construction worksite located in Lebanon, Pennsylvania. Summit was the general
contractor at the worksite, and the Secretary alleged that Summit was liable for the exposure of a
subcontractor’s employees to the deficient equipment as both a controlling and creating
employer. Administrative Law Judge John H. Schumacher affirmed the citation against Summit
as a controlling employer, and Summit’s subsequent petition for review was granted. While this
case has been pending review, the Commission reviewed another multi-employer case involving
Summit in which it issued a split decision holding that the Secretary’s theory of controlling
employer liability was invalid. Summit Contractors, Inc. , 21 BNA OSHC 2020, 2004-2009 CCH OSHD ¶ 32,888 (No. 03-1622, 2007) (“ Summit I ”). That holding has since been
overturned by the Eighth Circuit Court of Appeals. Solis v. Summit Contracs., Inc. , 558 F.3d
815, 827 (8th Cir. 2009) (“ Summit II ”). For the following reasons, we now overrule the
Commission’s decision in Summit I , and affirm the citation at issue here.

BACKGROUND

Summit was the general contractor for the construction of a 90-unit apartment complex
and had only two employees onsite throughout the project—Superintendent Corthals and
Assistant Superintendent Cramer. Summit subcontracted the project’s framing work to
Springhill Construction (“Springhill”), which further subcontracted the actual framing labor to
Mendoza Framing (“Mendoza”). Summit’s contract with Springhill established that Summit
“may provide, in locations determined to be appropriate for the project, temporary electrical . . .
services” which Springhill “shall make use of . . . as provided.”

In fact, Summit did provide temporary electrical services to the worksite. It rented two
pieces of electrical equipment—a 14.4 kW portable electric generator and a “spider box”

— to
supply power for Springhill and Mendoza. Summit Superintendent Corthals ordered this
equipment from Cleveland Brothers Equipment Rental (“Cleveland Brothers”), but he did not
request that it have GFCI protection, nor did he inspect the equipment for GFCI protection when
Cleveland Brothers delivered it to the worksite. Several days later, when the generator was first
put to use, Springhill’s superintendent sought Corthals’s assistance because he could not start the
generator. Corthals, in turn, called Cleveland Brothers and subsequently informed Springhill’s
superintendent of the rental company’s instructions for starting the generator. After starting the
generator, which powered the spider box, Mendoza employees were able to use the portable
electric tools they had plugged into the spider box.

During an April 26, 2005 OSHA inspection, the compliance officer (“CO”) discovered
that neither the generator nor the spider box were equipped with GFCI protection. The CO also
determined that Summit lacked an assured equipment grounding conductor program
(“AEGCP”)—an alternative form of ground-fault protection permitted under the OSHA
electrical standard.

When the CO pointed out to Corthals that the equipment lacked ground-fault protection, Corthals immediately contacted Cleveland Brothers and requested that they
replace the spider box with a GFCI-equipped version.

Following the inspection, OSHA issued Summit a citation under the Occupational Safety
and Health Act of 1970 (“the Act” or “OSH Act”), 29 U.S.C. §§ 651-78, alleging a serious
violation of 29 C.F.R. § 1926.404(b)(1)(ii), for its failure to provide GFCI protection on either of
the two pieces of equipment.

Due to Summit’s role at the worksite as a general contractor
whose own employees did not use the equipment, OSHA issued the citation to Summit under its
multi-employer citation policy set forth in OSHA Instruction CPL 2-0.124 (Dec. 10, 1999).
Summit timely contested the citation and, following a hearing, the judge affirmed the citation
and assessed the proposed penalty of $1,225.

Upon Summit’s petition, the case was directed for review, and the Commission
subsequently held oral argument.

On review, Summit continues to pursue two threshold
challenges to the Secretary’s multi-employer citation policy.

First, Summit alleges that issuance
of a citation to an employer whose own employees are not exposed to the cited condition is
precluded by the Secretary’s regulation establishing applicability of the OSHA construction
standards, 29 C.F.R. § 1910.12(a). And second, Summit alleges that the Supreme Court’s
decision in Nationwide Mutual Insurance Company v. Darden also precludes imposition of OSH
Act liability in these circumstances. See Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 316
(1992) (“ Darden ”) (setting forth test for determining the existence of an employer/employee
relationship). Also at issue before the Commission is whether the Secretary established that
Summit controlled and/or created the cited condition and had the requisite knowledge of its
existence.

DISCUSSION

I.   THRESHOLD CHALLENGES

A. Effect of 29 C.F.R. § 1910.12(a) on Multi-Employer Liability

Summit contends that the only “validly promulgated regulation” addressing multi-employer liability for employers engaged in construction work is 29 C.F.R. § 1910.12(a)—the
applicability provision for the construction standards—and that it “specifically limits a
construction employer’s duties under the construction standards to his own employees .” For the
following reasons, we disagree.

In the OSH Act, Congress authorized the Secretary to promulgate previously existing
national consensus and federal occupational safety or health standards as OSHA standards.
Section 6(a) of the Act, 29 U.S.C. § 655(a); Summit II , 558 F.3d at 818-19. Pursuant to this
authorization, the Secretary promulgated § 1910.12(a), in which she adopted such preexisting
federal construction work standards as OSHA standards. See National Consensus Standards and
Established Federal Standards, 36 Fed. Reg. 10,466, 10,466 (May 29, 1971); Summit II , 558 F.3d
at 818-19. Section 1910.12(a) states, in relevant part: “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.”

At nearly the same time as she promulgated this regulation, the Secretary published her
first Compliance Operations Manual (“COM”), which established the multi-employer citation
policy for construction worksites. OSHA, Compliance Operations Manual ¶ 10 at VII-6 to -8
(May 20, 1971) (“1971 COM”); Summit II , 558 F.3d at 819. In this initial version of the policy,
the Secretary announced that OSHA would cite employers for “creating a hazard endangering
employees (whether his own or those of another employer).” Thus, she determined that where a
construction employer created the cited hazard, its duties under the Act were not limited to its
own employees. 1971 COM ¶ 10 at VII-6. Indeed, the COM stated that a general contractor
would be cited in the precise situation at issue here—where it “provides an item of equipment
(e.g., scaffolding) which is used by employees of other employers, whether or not the general
contractor has employees of his own using the equipment.” 1971 COM ¶ 10 at VII-7.

The earliest Commission decisions initially rejected imposition of multi-employer
liability, vacating citations issued to construction employers for violations to which their own
employees were not exposed. See Gilles & Cotting, Inc. , 1 BNA OSHC 1388, 1389, 1973-1974 CCH OSHC ¶ 16,763, p. 21,513 (No. 504, 1973) (finding Congress did not intend for a
general contractor that controls a worksite to be held responsible for employees on that worksite
other than its own), vacated and remanded on other grounds , 504 F.2d 1255 (4th Cir. 1974);
City Wide Tuckpointing Serv. Co. , 1 BNA OSHC 1232, 1233, 1971-1973 CCH OSHD ¶ 15,769,
p. 21,051 (No. 247, 1973) (“Only where employees of a cited employer are affected by
noncompliance with an occupational safety and health standard can such employer be in
violation of section 5(a)(2) of [the] Act.”). Specifically in response to these decisions, the
Secretary revised her policy to exclude issuance of a citation to a creating employer for
violations to which its own employees were not exposed. Summit II , 558 F.3d at 820-21 (citing
OSHA, Field Operations Manual X-14 (Jan. 22, 1974)).

However, in 1975, two circuit courts of appeals cast doubt on the Commission’s
determination that the Act excluded all forms of non-exposing employer liability. Brennan v.
OSHRC ( Underhill Constr. Corp. ), 513 F.2d 1032, 1038 (2d Cir. 1975) (“This specific duty to
comply with the Secretary’s standards is in no way limited to situations where a violation of a
standard is linked to exposure of his employees to the hazard.”); Anning-Johnson Co. v. OSHRC ,
516 F.2d 1081, 1091 n.21 (7th Cir. 1975) (questioning whether “a general contractor, who has no
employees of his own exposed to a cited violation is necessarily excused from liability under the
Act”). Soon thereafter, two new cases came before the Commission that again presented the
question of multi-employer liability. In those cases, the Commission noted that it was persuaded
by the reasoning of the intervening circuit court decisions to revisit the issue. Accordingly, it
held that an employer “that has either created a hazard or controls a hazardous condition” can be
held liable for violations of the Act when the only employees exposed to the hazard are those of
other employers on a multi-employer construction worksite. Anning-Johnson Co. , 4 BNA
OSHC 1193, 1197-99, 1975-1976 CCH OSHD ¶ 20,690, pp. 24,782-84 (No. 3694, 1976)
(consolidated) (noting that Commission finds itself “in general agreement with the principles
enunciated in the cogent opinions of the Second and Seventh Circuit Courts of Appeals”);
Grossman Steel & Aluminum Corp. , 4 BNA OSHC 1185, 1975-1976 CCH OSHD ¶ 20,691 (No.
12775, 1976).

Beginning with these two decisions in 1976, and continuing until the Summit I decision
in 2007, the Commission invariably upheld the validity of multi-employer liability on
construction sites. The Commission’s test of employer liability, which grew out of the reasoning
in these early cases, held an employer “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 1108, 1109, 2000 CCH OSHD ¶ 32,204, p. 48,780 (No. 97-1918, 2000) (citation
omitted); Grossman Steel , 4 BNA OSHC at 1188, 1975-1976 CCH OSHD at p. 24,791 (noting
that general contractors are “well situated to obtain abatement of hazards,” and thus it is
“reasonable to expect the general contractor to assure compliance with the standards insofar as
all employees on the site are affected”). In holding non-exposing employers responsible for
noncompliance with the Act at multi-employer construction worksites, the Commission’s test
also reflected the Act’s remedial purpose—“to assure so far as possible every working man and
woman in the Nation safe and healthful working conditions.” Section 2(b) of the Act, 29 U.S.C.
§ 651(b); see Access Equip. , 18 BNA OSHC at 1723, 1999 CCH OSHD at p. 46,779 (noting that
courts of appeals “have found support for the [multi-employer citation policy] in the broad,
remedial purpose of the Act”).

Moreover, a majority of the circuit courts of appeals has consistently affirmed the
Commission’s imposition of multi-employer liability on controlling and creating employers.
See, e.g. , Universal Constr. Co. v. OSHRC , 182 F.3d 726, 727-32 (10th Cir. 1999) (controlling
employers); R.P. Carbone Constr. Co. v. OSHRC , 166 F.3d 815, 817-19 (6th Cir. 1998) (same);
Marshall v. Knutson Constr. Co. , 566 F.2d 596 (8th Cir. 1977) (same); U.S. v. Pitt-Des Moines ,
168 F.3d 976, 982-83 (7th Cir. 1999) (creating employers); Beatty Equip. Leasing, Inc. v. Sec’y
of Labor , 577 F.2d 534 (9th Cir. 1978) (same); New England Tel. & Tel. Co. v. Sec’y of Labor ,
589 F.2d 81, 81-82 (1st Cir. 1978) (analyzing whether a subcontractor on a multi-employer
worksite was either a controlling or creating employer under Commission precedent).

Against the backdrop of this longstanding precedent, in 2007, a Commission majority
held in a case of first impression that § 1910.12(a) prevents the Secretary from citing a
controlling employer on a multi-employer construction worksite when “his employees” are not
exposed to the cited condition. Summit I , 21 BNA OSHC at 2025, 2004-2009 CCH OSHD at
pp. 53,264-65. On appeal, the Eighth Circuit disagreed. It vacated that decision and remanded
the case to the Commission, finding that “the plain language of § 1910.12(a) does not preclude”
the citation of a controlling employer under the Secretary’s multi-employer citation policy.
Summit II , 558 F.3d at 827. On remand, the Commission applied the law of the case, determined
that Summit was a controlling employer under the facts of that case, and affirmed the citation.
See Summit III , 22 BNA OSHC at 1780-81, 2004-2009 CCH OSHD at pp. 54,259-60.

The instant case presents the Commission with its first opportunity to reconsider the
Summit I decision following its reversal on appeal. In light of Summit I ’s effect on well-settled
Commission precedent and the Eighth Circuit’s rejection of that decision, we find that
reexamination of whether § 1910.12(a) precludes multi-employer liability is warranted. See E.
Smalis Painting Co. , 22 BNA OSHC 1553, 1579, 2009 CCH OSHD ¶ 33,030, p. 54,368 (No. 94-1979, 2009) (overruling recent decision in light of disparate views, including “well reasoned
dissents,” at both the Commission and circuit court); Kenny Niles , 17 BNA OSHC 1940, 1941-42, 1995-1997 CCH OSHD ¶ 31,300, p. 43,997 (No. 94-1406, 1997) (emphasizing that although
the Commission “normally considers itself bound to follow its own precedent,” it will overrule
that precedent “when further deliberations have led it to conclude that an earlier case was
wrongly decided, particularly when the federal appellate courts have expressly rejected the
Commission’s initial position”); Joel Yandell , 18 BNA OSHC 1623, 1626-27, 1999 CCH OSHD
¶ 31,782, pp. 46,540-41 (No. 94-3080, 1999) (same).

We have carefully reconsidered this issue and conclude 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. In reaching this conclusion, we are persuaded by the
Eighth Circuit’s analysis and the well-supported authority of our pre- Summit I case law.
Moreover, as we noted above, this reading of the Secretary’s regulation is consistent with, and
effectuates, the remedial purposes of the Act. Whirlpool Corp. v. Marshall , 445 U.S. 1, 10
(1980) (finding regulation “conforms to the fundamental objective of the Act [] to prevent
occupational deaths and serious injuries”); Pitt-Des Moines , 168 F.3d at 982-83 (finding the
broad remedial purpose of the Act “implies that ‘once an employer is deemed responsible for
complying with OSHA regulations, it is obligated to protect every employee who works in its
workplace’” (citation omitted)).

First and foremost, we agree with the Eighth Circuit’s plain meaning analysis of
§ 1910.12(a) in Summit II . 558 F.3d at 823. As noted above, the language at issue in
§ 1910.12(a) states: “Each employer shall protect the employment and places of employment of
each of his employees . . . .” Applying principles of regulatory interpretation to
§ 1910.12(a)—which give effect to all words and phrases—and basic grammatical principles, the
court deconstructed the sentence into its constituent parts and concluded that the provision
requires an employer to protect both “the employment of each of his employees” and “the places
of employment of each of his employees.” Id. at 824. As the court stated, “to give some
independent meaning to the term ‘place[] of employment’ would require the employer to protect
others who work at that place of employment so long as the employer also has employees at that
place of employment.” Id. at 825 . In other words, the plain language of § 1910.12(a) imposes
liability on employers who permit known hazards on multi-employer construction worksites,
regardless of their own employees’ exposure.

Indeed, the Eighth Circuit’s decision is a wholesale rejection of the Summit I majority’s
myopic plain language analysis. In Summit I , the opinions comprising the Commission’s
majority decision considered the phrase “each of his employees” to be the linchpin for finding
that § 1910.12(a) only applies to an employer with an exposed employee. 21 BNA OSHC at
2024-25, 2004-2009 CCH OSHD at pp. 53,263-64 (declaring that “the Commission must give
effect to the plain language of the regulation” and relying on the phrase “his employees” in
§ 1910.12(a) to preclude citation of a non-exposing employer); 21 BNA OSHC at 2026-27,
2004-2009 CCH OSHD at pp. 53,265-66 (Thompson, Comm’r, concurring) (reading the
sentences of § 1910.12(a) together to conclude that a construction employer must protect only
“his employees”). But this reading of the regulation effectively eliminates the phrase “places of
employment” from § 1910.12(a), a phrase the Eighth Circuit logically read in conjunction with
the phrase “each of his employees” to impose a duty that runs to all employees so long as
employees of the cited employer are also present. By giving effect to the entire provision and
not abridging the inquiry by unduly focusing on any single phrase, we are persuaded that the
Eighth Circuit’s analysis yields the correct reading of § 1910.12(a). See 2A Sutherland Statutory
Construction § 46:6 (“‘It is an elementary rule of construction that effect must be given, if
possible, to every word, clause and sentence of a statute.’” (citation omitted)).

Moreover, as the court noted, an employer’s dual obligation under § 1910.12(a) also
appears in § 5(a)(2) of the Act, upon which the Secretary’s multi-employer citation policy rests.
Summit II , 558 F.3d at 828; 29 U.S.C. § 654(a)(2) (requiring that each employer “shall comply
with occupational safety and health standards promulgated under this Act”); section 3(8) of the
Act, 29 U.S.C. § 652(8) (defining “occupational safety and health standard” as “a standard which
requires conditions, or the adoption or use of one or more practices . . . to provide safe or
healthful employment and places of employment” (emphasis added)). The grounding of the
multi-employer citation policy in § 5(a)(2) of the Act has long been recognized by both the
courts and the Commission. See Pitt-Des Moines , 168 F.3d at 983 (stating that there is “no
reason to conclude that the specific protection § 5(2) affords—freedom from safety
violations—is limited to an employer’s own employees”); Underhill , 513 F.2d at 1037-38
(emphasizing that an employer’s duty under § 5(a)(2) “is in no way limited to situations where a
violation of a standard is linked to exposure of his employees to the hazard”); Anning-Johnson ,
4 BNA OSHC at 1199, 1975-1976 CCH OSHD at p. 24,784 (announcing that the Commission
will hold a controlling or creating employer liable for the exposure of other employers’
employees under § 5(a)(2)); Grossman Steel , 4 BNA OSHC at 1188, 1975-1976 CCH OSHD at
p. 24,791 (following the holding in Underhill to impose liability on employers for creating
hazards to any employees on a construction worksite).

For all of these reasons, we hold that § 1910.12(a) does not prevent the Secretary from
citing a non-exposing, controlling employer under the multi-employer citation policy.
Accordingly, we overrule Summit I and restore the Commission’s well-settled precedent on
multi-employer liability.

B. Effect of Darden on Multi-Employer Liability

Turning to the second threshold challenge, Summit contends that the Supreme Court’s
decision in Darden “set aside the judicial precedent and the legal rationale upon which” the
Secretary’s multi-employer citation policy is based and therefore compels the Commission to
squarely reject the policy.

At issue in Darden was whether an insurance salesman was an
“employee” of the insurance company, such that he could recover retirement benefits under the
Employee Retirement Income Security Act (“ERISA”). 503 U.S. at 320. The Darden Court
held that when Congress uses terms that have a settled common law meaning, unless the statute
states otherwise, courts must infer that Congress intended to adopt the common law definitions.
503 U.S. at 322-23. Because the Court found that ERISA’s definition of “employee” (“any
individual employed by an employer”) was circular, and therefore essentially undefined, the
Court looked to the common law master-servant test to determine whether the salesman was a
covered employee. Id. at 323-24.

Summit argues that, in holding an employer responsible for employees other than its own
under the multi-employer citation policy, the Commission must have relied on a definition of
“employer” that was more expansive than the common law definition. Because the Commission
now follows Darden when it must determine whether a cited entity is an employer under the Act
or whether a particular employment relationship exists, Summit reasons that the Commission has
effectively invalidated its own multi-employer precedent. In rejecting this argument, the Eighth
Circuit found that Summit had “misconstrue[d]” the Commission’s precedent regarding the
multi-employer citation policy, and we agree. See Summit II , 558 F.3d at 827-28.

The Darden test is applicable to two inquiries under the OSH Act. The first is whether a
cited entity has any employees, when that must be determined as a predicate to establishing
statutory coverage. Section 3(5) of the Act, 29 U.S.C. § 652(5); see, e.g. , Don Davis , 19 BNA
OSHC 1477, 1479-81, 2001 CCH OSHD ¶ 32,402, pp. 49,896-97 (No. 96-1378, 2001). The
second is whether a particular statutory employer has an employment relationship with a
particular worker. See, e.g. , Froedtert Mem’l Lutheran Hosp. Inc. , 20 BNA OSHC 1500, 1505-08, 2002-2004 CCH OSHD ¶ 32,730, pp. 51,906-09 (No. 97-1839, 2004). Neither of these
inquiries is necessarily relevant to a multi-employer construction worksite case in which the lack
of an employment relationship between the cited controlling or creating employer and the
exposed employee is presumed. See Access Equip. , 18 BNA OSHC at 1724, 1999 CCH OSHD
at p. 46,780 (multi-employer citation policy addresses “the peculiar needs of preventing hazards
at construction sites, which ‘often entail different employees being exposed to hazards created
by more than one employer’” (citation omitted)); see also Sec’y v. Trinity Indus., Inc. , 504 F.3d
397, 402 (3d Cir. 2007) (noting that Darden “has no impact” on the question whether the OSH
Act covers workers who are not common law employees of a cited employer, and “courts have
frequently ruled that the OSH Act . . . sweep[s] broadly enough so as to allow the Secretary to
impose duties on employers [that run] to persons other than their employees” (citations
omitted)).

Indeed, as the Eighth Circuit explained, the statutory authority underlying the
Commission’s imposition of multi-employer liability derives from § 5(a)(2) of the Act, which
imposes duties on an employer that, unlike those imposed under § 5(a)(1), need not benefit its
own employees. Summit II , 558 F.3d at 828 (noting that § 5(a)(2), unlike its counterpart
§ 5(a)(1), “does not base an employer’s liability on the existence of an employer-employee
relationship”). Compare 29 U.S.C. § 654(a)(1) (providing that each employer “shall furnish 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 ”
(emphasis added)) with 29 U.S.C. § 654(a)(2) (providing that each employer “shall comply with
occupational safety and health standards promulgated under this Act”) and 29 U.S.C. § 652(8)
(defining the standards described in § 5(a)(2) as providing “safe or healthful employment and
places of employment”). Moreover, under the Act, the focus of the compliance duty imposed on
an employer is the employer’s workplace, not any specific employee. See Pitt-Des Moines , 168
F.3d at 983 (recounting that the Act’s legislative history “suggests that its primary focus was
making places of employment, rather than specific employees, safe from work related hazards”);
Teal v. E.I. DuPont De Nemours & Co. , 728 F.2d 799, 805 (6th Cir. 1984) (“[O]nce an employer
is deemed responsible for complying with OSHA regulations, it is obligated to protect every
employee who works in its workplace.”). This principle supports the Commission’s
determination, in upholding multi-employer liability, that an employer owes a duty under
§ 5(a)(2) of the Act not only to its own employees but to other employees at the worksite when
the employer creates and/or controls the cited condition. See Pitt-Des Moines , 168 F.3d at 982-83.

Accordingly, we hold that Summit erroneously reasons that the Court’s holding in
Darden invalidates multi-employer liability, and reject this challenge to the validity of our
precedent. Moreover, because Summit concedes that it is an “employer” as that term is defined
under § 3(5) of the Act, we need not undertake an analysis of whether it employs employees to
reach our conclusion that OSH Act applicability is established.

II.   ALLEGED Violation of 29 C.F.R. § 1926.404(b)(1)(ii)

Finally, we turn to an analysis of the merits of this case under the established principles
of the Commission’s restored pre- Summit I precedent.

As noted above, “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.’”
McDevitt Street Bovis , 19 BNA OSHC at 1109, 2000 CCH OSHD at p. 48,780 (citation
omitted). With respect to controlling employer liability, “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.’” Id.
(citation omitted); Grossman Steel , 4 BNA OSHC at 1188, 1975-1976 CCH OSHD at p. 24,791.
With respect to creating employer liability, the Commission “has long held that the employer
who creates a violative or hazardous condition is obligated to protect its own employees as well
as employees of other contractors who are exposed to the hazard.” Smoot Constr. , 21 BNA
OSHC at 1557, 2004-2009 CCH OSHD at p. 52,723. We find the evidence here establishes that
Summit was both a controlling and a creating employer.

A. Controlling Employer Liability

The record shows that Summit maintained significant control over the worksite in
general and over the cited condition in particular such that it was liable for this violation. See
Centex-Rooney Constr. Co. , 16 BNA OSHC 2127, 2129-30, 1993-1995 CCH OSHD ¶ 30,621,
p. 42,410 (No. 92-0851, 1994) (controlling employer liable if it could reasonably be expected to
prevent or detect and abate the violative condition by reason of its supervisory capacity and
control over the worksite). Indeed, Summit Superintendent Corthals exercised overall authority
regarding safety-related matters at the worksite. Corthals observed the progress of the project
and worksite conditions by walking the worksite twice each day. He also testified that Summit
directed him to point out obvious hazards to the subcontractors, which he accomplished at
weekly meetings with the foremen by identifying such safety issues as hard hats, safety glasses,
and damaged electrical cords. See Knutson Constr. , 566 F.2d at 601 (finding general
contractor’s duty to detect violations depends on what measures are “commensurate with its
degree of supervisory capacity”); Lee Roy Westbrook Constr. Co. , 13 BNA OSHC 2104, 2106,
1987-1990 CCH OSHD ¶ 28,465, p. 37,695 (No. 85-601, 1989) (“‘Control is established when it
is shown that an employer possessed the expertise and personnel to abate a hazard’” (citation
omitted)).

With respect to the cited condition in particular, under Summit’s contract with Springhill,
Summit retained the right to provide electrical service that subcontractors would be required to
use and, according to Corthals, his decision to exercise that right was within the scope of his
authority as Summit’s superintendent. And Corthals could have prevented the hazardous
condition from occurring in the first place, had he exercised his authority in compliance with
OSHA requirements by ordering GFCI-protected equipment. Moreover, after obtaining the
generator and spider box that supplied the electrical service, Corthals, not Springhill, contacted
Cleveland Brothers to resolve Springhill’s initial inability to start the generator. Although
Corthals testified that Summit rented the equipment as an accommodation to Springhill, only
Summit undertook to secure the equipment, have it brought onsite, and pay the rental fee to
Cleveland Brothers. Additionally, after the CO pointed out the lack of GFCI protection,
Corthals himself contacted Cleveland Brothers to request a new spider box, single-handedly
abating the hazard. Under these circumstances, we find Summit’s control over the worksite as a
whole, in conjunction with its control over the cited condition, sufficient to establish it was a
controlling employer.

B. Creating Employer Liability

It is indisputable that Summit alone was responsible for obtaining the generator and
spider box. And Summit admits that it (1) ordered this equipment without requesting that it be
outfitted with GFCI protection, (2) did not check for GFCI protection upon delivery of the
equipment, and (3) required that the subcontractors use the equipment as provided. See Access
Equip. , 18 BNA OSHC at 1725, 1999 CCH OSHD at p. 46,781 (finding employer liable for
creating hazardous condition by bringing scaffolding onsite and adding platform extensions
without knowing what weight it could bear); see also Beatty Equip. Leasing Co. , 4 BNA
OSHC 1211, 1212, 1975-1976 CCH OSHD ¶ 20,694, p. 24,802 (No. 3901, 1976) (finding
materialman who erected improperly guarded scaffold was creating employer), aff’d , 577 F.2d
534; Dun-Par Eng’d Form Co. v. Marshall , 676 F.2d 1333, 1335-36 (10th Cir. 1982) (finding
employer created hazard by failing to install guardrails). By causing the noncompliant
equipment to be brought onto the construction worksite, Summit created the hazardous
condition.

Corthals’s claim that he relied on Cleveland Brothers’s expertise to provide the proper
equipment and was “dumbfounded” when they did not, does not relieve Summit of its
responsibility for the equipment’s condition. See, e.g. , Froedtert , 20 BNA OSHC at 1508, 2002-2004 CCH OSHD at p. 51,909 (emphasizing that an employer cannot “‘contract away its legal
duties to its employees or its ultimate responsibility under the Act by requiring another party to
perform them’” (citation omitted)); Cent. of Ga. R.R. Co. v. OSHRC , 576 F.2d 620, 624-25 (5th
Cir. 1978) (noting that Commission precedent establishes that “an employer may not contract
out of its duties under” the OSH Act). Summit never provided an explanation or justification for
its claim that it should have been able to rely exclusively on Cleveland Brothers to deliver
compliant equipment. And the circumstances here do not warrant a finding that any such
justification exists. The lack of GFCI protection was a readily discernible condition, and its
discovery required no specialized expertise. See Blount Int’l Ltd. , 15 BNA OSHC 1897, 1899-900, 1991-1993 CCH OSHD ¶ 29,854, pp. 40,749-50 (No. 89-1394, 1992) (finding general
contractor liable for electrical standard violation even though it had an electrical subcontractor
onsite); cf. Sasser Elec. & Manuf. Co. , 11 BNA OSHC 2133, 2135-36, 1984-1985 CCH OSHD
¶ 26,982, pp. 34,684-86 (No. 82-178, 1984) (vacating citation to diesel generator manufacturer
concerning electrocution hazard where it hired independent crane company with specialized
expertise in crane operation and attendant power line hazards that cited employer lacked), aff’d
per curiam, 12 BNA OSHC 1445 (4th Cir. 1985) (unpublished). We also note there is no evidence
from which to conclude that Cleveland Brothers, which entered the worksite only to deliver
equipment, was engaged in construction and, therefore, subject to the cited OSHA standard.
Under these circumstances, we find that Summit created the hazardous condition and is therefore
liable as a creating employer.

C. Knowledge

Under Commission precedent, “the Secretary must prove that a cited employer either
knew, or, with the exercise of reasonable diligence, could have known of the presence of the
violative condition.” A.P. O’Horo Co., Inc. , 14 BNA OSHC 2004, 2007, 1991-1993 CCH
OSHD ¶ 29,223, p. 39,128 (No. 85-369, 1991). “Reasonable diligence requires the formulation
and implementation of adequate work rules and training programs to ensure that work is safe, as
well as adequate supervision of employees.” N & N Contracs., Inc. , 18 BNA OSHC 2121, 2123,
2000 CCH OSHD ¶ 32,101, p. 48,239 (No. 96-0606, 2000), aff’d , 255 F.3d 122 (4th Cir. 2001).

Here, Summit had no work rules and provided no training to its supervisors or employees
to ensure that electrical equipment it provided contained GFCI protection. Moreover,
Superintendent Corthals did not request that the equipment he ordered from Cleveland Brothers
contain GFCI protection, and did not check the equipment himself for compliance with the
standard. Id . (“Reasonable diligence also requires an employer to inspect the work area,
anticipate hazards to which employees may be exposed, and take measures to prevent the
occurrence of violations.”). In these circumstances, we find that Corthals’s failure to take steps
to verify the safe condition of the equipment—either when he ordered it or upon its delivery to
the worksite—shows that he did not exercise reasonable diligence to discover the hazard. See
Blount , 15 BNA OSHC at 1899-900, 1991-1993 CCH OSHD at pp. 40,749-50 (finding
constructive knowledge where, “with the exercise of reasonable diligence, [employer] could
have known of the violative condition”). Accordingly, we find Corthals had constructive
knowledge of the violation, which may be imputed to Summit based on his position as
superintendent. N & N Contracs. , 18 BNA OSHC at 2123, 2000 CCH OSHD at p. 48,239 (“The
actual or constructive knowledge of a foreman or supervisor can be imputed to the employer.”).
We conclude, therefore, that Summit had constructive knowledge of its failure to provide GFCI-protected equipment in violation of the cited standard.

CONCLUSIONS OF LAW

Based on the foregoing analysis, we conclude that § 1910.12(a) does not preclude the
imposition of OSH Act liability on a non-exposing, controlling employer on a multi-employer
construction worksite. In so holding, we overrule the Commission’s decision in Summit I . We
also reject Summit’s argument that the Supreme Court’s Darden opinion invalidates the multi-employer citation policy. Finally, we conclude that Summit was both a controlling and creating
employer with knowledge of the violative condition. Thus, the Secretary established a serious
violation of § 1926.404(b)(1).

ORDER

We affirm Citation 1, Item 1, and assess a penalty of $1,225.

SO ORDERED.

/s/                                                         

Thomasina V. Rogers

Chairman

/s/                                                         

Cynthia L. Attwood

Dated:   8/19/2010                                                         Commissioner

Thompson , Commissioner, dissenting:

Unlike my colleagues, I would vacate the citation. Summit Contractors, Inc. (“Summit”)
cannot be cited in this case for a violation of 29 C.F.R. § 1926.404(b)(1)(ii) (2009) under either
the “creating employer” or “controlling employer” doctrines of OSHA’s multi-employer citation
policy (“MEP”). The D.C. Circuit, the likely applicable circuit court of appeals, sees tension
between OSHA’s MEP and language in the Occupational Safety and Health Act (“OSH Act” or
“Act”) focusing on employment. IBP, Inc. v. Herman , 144 F.3d 861, 865 (D.C. Cir. 1998).
Furthermore, the Supreme Court’s decision in Nationwide Mutual Insurance Co. v. Darden
(“ Darden ”) reinforced the “well-established principle” that Congress is presumed to use
“employee” in the common law master-servant sense. 503 U.S. 318, 322-25 (1992). The
Darden Court rejected the premise that the word “employee” in a statute should be expansively
interpreted to achieve the statute’s remedial objective, a purpose said to justify enforcement of
controlling and creating employer duties under the MEP . Id. Another bar to the citation is that
this Occupational Safety and Health Review Commission (“Review Commission” or
“Commission”) and the D.C. Circuit have both observed that 29 C.F.R. § 1910.12(a) (2009)
limits the scope and application of Part 1926 standards so that duties run from employers to only
their employees. Summit Contractors, Inc. , 21 BNA OSHC 2020, 2024, 2004-2009 CCH OSHD
¶ 33,010, p. 54,260 (No. 03-1622, 2007) (“ Summit I ”); IBP, Inc. , 144 F.3d at 865; Anthony
Crane Rental v. Reich , 70 F.3d 1298 (D.C. Cir. 1995). In any event, the obligation imposed by
29 U.S.C. § 654(a)(2) (2009) (“§ 5(a)(2)”) to comply with the cited standard i s the duty to select
among ground-fault circuit interruption (“GFCI”) options to protect employees from the risk of
electrical shock while using power tools. 29 C.F.R. § 1926.404(b)(1)(ii) (2009). If the Secretary
is allowed to prosecute this case under her MEP, the specific duty defined by the cited standard
will be imposed on the employer who merely provides a temporary electrical source, not on the
employer who actually uses the electrical circuits and whose employees are exposed to the
violative condition.

ISSUE

Since there is no question that Summit employed no employee exposed to the hazard of
electrical shock addressed by the cited standard, the issue here is simply whether or not the
statute, regulation, or cited standard authorizes OSHA to enforce a “controlling employer”
citation policy grounded in contract or a “creating employer” citation policy grounded in tort,
where Summit has violated no duty to protect its own employees.

ANALYSIS

A. OSH ACT DOES NOT AUTHORIZE MEP

1. Language of Statute

Where it is clear the case can be appealed to a particular circuit, the Review Commission
will apply the law of that circuit. Am. Wrecking , 19 BNA OSHC 1703, 1710 n.7, 2001 CCH
OSHD ¶ 32,504, p. 50,402 n.7 (No. 96-1330, 2001) (consolidated). In the instant case Summit’s
office is located in Jacksonville, Florida and the worksite at issue was in Lebanon, Pennsylvania,
located respectively in the Eleventh and Third Circuit courts of appeals. Neither circuit has
addressed conflicts of the MEP with both the OSH Act and § 1910.12(a). Additionally, Summit
could appeal to the D.C. Circuit. 29 U.S.C. § 660(a) (2009). The D.C. Circuit has in dicta
addressed both dispositive issues .

In its most recent decision on the issue, the D.C. Circuit in dicta observed it had
previously expressed doubt about the validity of the MEP, and continues to see “tension between
the Secretary’s multi-employer theory and the language of the statute . . . .” IBP, Inc. , 144 F.3d
at 865. The court pointed to language of the statute militating against any interpretation
imposing multi-employer liability:

[Section 3 of] the Act defines the term “occupational safety and health standard”
as one “reasonably necessary or appropriate to provide safe or healthful
employment and places of employment, ” 29 U.S.C. § 652(8) (1994).

Id. at 865 (emphasis added by the D.C. Cir.). The D.C. Circuit also pointed out that § 3(6) of the
Act, 29 U.S.C. § 652(6), defines “employer” as “a person engaged in a business affecting
commerce who has employees. ” Id . (citation omitted).

Putting these definitions together, the Act contemplates compliance obligations of an
“employer” in reference to the employment of his employees, not those of another employer.
This purpose is carried out by § 5 of the Act, 29 U.S.C. § 654. When read in its entirety, § 5
fulfills the statutory purpose stated in § 2(b)(2) of the Act, to provide that “employers and
employees have separate but dependent responsibilities and rights with respect to achieving safe
and healthful working conditions. ” 29 U.S.C. § 651(b)(2) (2009) (emphasis added). It follows
that § 5(a)(1) and (2) together establish both general and specific employer duties, and § 5(b)
establishes employee duties, reflecting Congress’s intended correlation between employer and
employee duties. Congress intended to read in harmony the clauses of § 5 that create reciprocal
employer and employee duties so that employer duties run to their employees and vice versa .
Cf. Melerine v. Avondale Shipyards, Inc. , 659 F.2d 706, 710-12, nn.12, 17 (5th Cir. Unit A 1981)
(“ Avondale Shipyards ”). As one state supreme court observed:

A law that defines the rights and duties of husbands and wives has reference to
the obligations of each husband to his own wife, not the wife of another.
Similarly, the duty of an employer to employees clearly means to his own
employees and not those of some other employer, unless the language permits no
other conclusion.

Horn v. Shirley , 441 S.W.2d 468, 471 (Ark. 1969).

Congress adopted language throughout the Act confirming protection from risk running
exclusively to the employees of a covered employer. Sections 6(b)(6)(A) and 6(d) of the Act,
which respectively permit an employer to obtain temporary and permanent variances from
occupational safety and health standards, require the employer to show that he will provide safe
workplaces “to his employees” or “safeguard his employees.” 29 U.S.C. §§ 655(b)(6)(A), (d)
(2009) (emphasis added). That only an employer whose own employees are exposed can obtain
a variance is a plain indication that only an exposing employer would need a variance. Avondale
Shipyards , 659 F.2d at 711 n.17 (reasoning that the Act’s variance requirements for the standards
imply that “OSHA regulations protect only an employer’s own employees”). Similarly,
§ 6(b)(4) of the Act requires that the delay in a standard’s effective date be sufficient to permit
employers to familiarize themselves “and their employees” with the new standard. 29 U.S.C.
§ 655(b)(4) (2009) (emphasis added). Likewise, § 8(e) of the Act requires OSHA to afford to
representatives of the employer and “ his employees” a right to accompany the inspector.
29 U.S.C. § 657(e) (2009) (emphasis added).

Finally, § 4(b)(4) of the Act makes it clear that Congress did not intend the OSH Act to
be enforced expansively so as to enlarge contractual or tort obligations and by so doing “enlarge
or diminish or affect in any other manner the common law or statutory rights, duties, or
liabilities of employers and employees under any law with respect to injuries, diseases, or death
of employees arising out of, or in the course of, employment.” 29 U.S.C. § 653(b)(4) (2009).
Expansion of enforcement pursuant to OSHA’s MEP in order to require an employer to protect
the employees of others necessarily requires a general contractor to compel subcontractors to
comply with OSHA standards as the subcontractor’s employees perform their work. Thus,
although “every court faced with the issue has held that OSHA creates no private right of action”
and although the majority of courts consider OSHA standards as some but not conclusive
evidence of a standard of care under common law negligence principles, enforcement of the
MEP thwarts the limits of liability expressed by Congress through inclusion of § 4(b)(4) in the
OSH Act. Anderson v. Airco, Inc ., No. C.A. 03-123-SLR, 2003 WL 21842085, 2003 CCH Prod.
Liab. Rep. ¶ 16,702 (D. Del. July 28, 2003). The MEP necessarily enlarges liabilities of general
contractors in that they are required to control the means, methods and techniques used by
subcontractors to comply with applicable OSHA standards. Under the instant application of the
MEP, the general contractor must dictate to subcontractors the means of ensuring the safe use of
power tools that the general contractor’s employees will never use and oversee the manner of
performance of tasks in which they do not participate. Cf., e.g. , McDevitt Street Bovis, Inc. ,
19 BNA OSHC 1108, 1108-09 (majority opinion) and 1113 (dissenting opinion), 1997-1998 CCH OSHD ¶ 32,204, p. 48,778 (majority opinion) and p. 48,783 (dissenting opinion) (No.
97-1918, 2000). This responsibility imposed by the MEP expands the general contractor’s
common law tort liability for injuries suffered by subcontractor employees. A basic element of
any tort negligence case is whether a duty of care is owed, and in the context of the MEP, the
relevant element is whether the general contractor owes a duty of care to the injured
subcontractor employee. Restatement (Third) of Torts § 6 (2005). If the general contractor has
not assumed responsibility for making sure the subcontractor uses safe means, methods, and
techniques in performing the subcontractor’s work, then the general contractor owes no common
law duty to the subcontractor’s employees and the case is dismissed on summary judgment. See,
e.g. , Schreiber v. Idea Eng’g & Fabricating , 117 Fed. App’x 467 (7th Cir. 2004); Davis v.
Sanders , 891 S.W.2d 779 (Tex. App. 1995); Evans v. Lockwood-Greene Eng’rs, Inc. , 13 BNA
OSHC 1984 (N.D. Ga. 1988) (Summ. J. Order). But if the general contractor has assumed that
responsibility, or in fact controls the subcontractors’ means or methods of performance, then the
general contractor has created a common law duty of care to the subcontractor’s employees, i.e .,
a duty to ensure that their working conditions are safe. See, e.g. , Lawson-Avila Constr., Inc. v.
Stoutamire , 791 S.W.2d 584 (Tex. App. 1990) (citing Restatement (Second) of Torts § 414
(1965)). Thus compliance with the MEP thwarts the limits of liability provided in § 4(b)(4).

In sum, the D.C. Circuit’s observation in IBP, Inc. of continuing tension between the
MEP and the statute is supported by “the particular statutory language at issue, as well as the
language and design of the statute [read harmoniously] as a whole.” See K Mart Corp. v.
Cartier , Inc ., 486 U.S. 281, 291 (1988) (citation omitted).

2. Manifest Intent of Congress

Legislative history further confirms Congress’s intent to make employers responsible
only for “the health and safety of their employees.” S. Rpt. No. 91-1282, p. 9, October 5, 1970;
H. Rpt. No. 91-1291, p. 21, July 9, 1970 reprinted in Subcommittee on Labor, Committee on
Labor and Public Welfare, U.S. Senate, Legislative History of the Occupational Safety and
Health Act of 1970 , 92d Cong., 1st Sess. (Comm. Print 1971) (“Leg. Hist.”); see Avondale
Shipyards , 659 F.2d at 711 and n.17; Horn v. C. L. Osborn Contracting Co. , 423 F. Supp. 801,
808 (M.D. Ga. 1976) (“No legislative history nor statutory provision has been cited by the
Plaintiff to support the proposition that Congress intended to create a duty on behalf of the
employer with respect to persons other than its own employees”), aff’d in relevant part, rev’d on
other grounds , 591 F.2d 318, 321 (5th Cir. 1979). When the Senate committee drafted § 5, later
to be codified at 29 U.S.C. § 654(b), which imposes a duty on employees to comply with safety
and health standards, the committee cautioned that this did not diminish “the employer’s . . .
responsibility to assure compliance [with those specific standards] by his own employees.”
S. Rpt. No. 91-1282 at 10-11, Leg. Hist. at 150-51 (emphasis added). Co-sponsor
Representative Steiger described the OSH Act, which by then had been passed by the House, as
ensuring effectiveness and equity to employees “and to those by whom they are employed.”
Congressional Record, Nov. 24, 1970 (Statement of Rep. Steiger), reprinted in Leg. Hist. at
1060; see also S. Rpt. 91-1282 at 8, Leg. Hist. at 148 (“his employees”); S. Rpt. 91-1282 at 10,
Leg. Hist. at 150 (“affected employees . . . their employers”), S. Rpt. at 11, Leg. Hist. at 151
(“employees . . . their own places of employment”); H. Rpt. No. 1291 at 19, Leg. Hist. at 831,
849.

Congressional intent is further confirmed by contrasting the OSH Act with the Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (2009) (the “Coal Act”),
another workplace safety act which was marked up concurrently with the OSH Act by the same
congressional committees. Congress simultaneously differentiated between on the one hand, the
enforcement scheme of the Coal Act where duties run to all mining employees from the one who
“owns” or “operates” a mine, see, e.g. , 30 U.S.C. §§ 802(d) and 814(a) (1976), and on the other
hand, the enforcement scheme of the OSH Act where duties run to employees from their
employers, 29 U.S.C. § 654(a)(2) (2009).

Congress could have defined “employee” and “employer” in the OSH Act differently to
create more expansive enforcement options, such as provided in the National Labor Relations
Act of 1935, as amended, 29 U.S.C. § 151 et seq . (2009) (“NLRA”), wherein Congress declared:
“The term ‘employee’ shall include any employee, and shall not be limited to the employees of a
particular employer” unless specifically stated otherwise. 29 U.S.C. § 152 (2009).

Moreover, over the course of a two-year legislative process, the drafters of the OSH Act
retained the employment-based liability predicate after hearing testimony that imposition of
contract-based responsibilities could provide enhanced hazard abatement responsibilities at
multi-employer worksites. Representative O’Hara, sponsor of an early occupational safety and
health bill proposed in 1968, was also a sponsor of the then-concurrently considered
Construction Safety Act (“CSA”), which specifically provided for contract-based multi-employer liability of general contractors and their subcontractors. In an exchange during
hearings regarding the CSA with Congressman O’Hara, Maj. Gen. Carroll H. Dunn of the
Department of the Army supported extension of the contract-based predicate of the CSA to the
OSH legislation, because “accidents do not limit themselves to Federal and federally assisted
construction.” Construction Safety: Hearings Before the Select Subcomm. on Labor of the
Comm. on Educ. and Labor of the House of Rep ., 90th Cong., 1st and 2d. Sess. pp. 80-81 (1967,
1968) (“ Construction Safety Hearings ”) (remarks by Maj. Gen. Carroll H. Dunn).

Notwithstanding consideration of such proposals to include contract-based enforcement in
comprehensive occupational safety and health legislation, Congress retained a provision defining
duties on the basis of a master-servant predicate, the framework of which had been integral to
the original comprehensive safety and health bills, H.R. 14816 and S. 2864, which had been
introduced in the 90th Congress in January 1968 by recommendation of President Johnson.

The
focus was narrowed in the final OSH Act regarding the scope of the hazards to be abated under
the introductory General Duty Clause, but the employment-based predicate of the original § 3(a)
of the 1968 bills remained and was codified into the final Act.

The most recent indication that
Congress has never intended an expansion of employment-based liability is the death in
committee of S. 575, proposed in 1993 by Senators Kennedy and Metzenbaum, in which they
sought to amend the OSH Act to make general contractors responsible for subcontractor
violations on a construction site. Comprehensive Occupational Safety and Reform Act, S. 575,
103d Congress (1993).  

3. Commission Recognition of Congressional Intent

The Review Commission’s earliest interpretations of the OSH Act recognized that
enforcement of § 5(a)(2) to create employer responsibility beyond his employees would be “an
expansion of the intent and purpose of the Act . . . . [O]nly where employees of a cited employer
are affected by noncompliance . . . can such an employer be in violation of section 5(a)(2) of this
Act.” City Wide Tuckpointing Serv. Co ., 1 BNA OSHC 1232, 1232-33, 1971-1973 CCH OSHD
¶ 15,769, p. 21,951 (No. 247, 1973). Less than six months later, Commissioners Van Namee,
Moran, and Cleary unanimously recognized Congressional intent that the duties arising from the
Act run from an employer to his own employees:

The difficulty with [the Secretary’s] position is that it imposes liability outside the
employment relationship . That is, it makes any employer who subcontracts while
retaining control of the job site responsible for the safety and health of working
men and women who do not work for him, who are not subject to his direction
and control, who are not on his payroll and who cannot be discharged by him.
We do not think Congress intended the Act to go so far.

Gilles and Cotting , 1 BNA OSHC at 1389, 1973-1974 CCH OSHD at p. 21,513 (footnote
omitted); see also James E. Roberts Co. & Soule Steel Co. , 1 BNA OSHC 1684, 1685, 1973-1974 CCH OSHD ¶ 17,659, p. 22,067 (No. 103, 1974) (consolidated) (Cleary, Comm’r,
concurring in part and dissenting in part); Humphreys & Harding , 1 BNA OSHC 1700, 1701,
1973-1974 CCH OSHD ¶ 17,784, p. 22,141 (No. 621, 1974).

After these decisions, Commissioner Cleary, in a series of dissents, disregarded without
explanation his earlier recognition of contrary Congressional intent. Commissioner Cleary
introduced several theories seeking to expand liability beyond the traditional employment
relationship: (1) on the basis of contractual control, see Hawkins Constr. Co ., 1 BNA
OSHC 1761, 1762, 1973-1974 CCH OSHD ¶ 17,851, p. 22,197 (No. 949, 1974) (stating
“employees of a subcontractor should be considered the employees of the general, or prime
contractor, for purposes of the Act . . . .”) (Cleary, Comm’r, dissenting); and (2) on the basis of
“possible tort liability,” see Martin Iron Works, Inc ., 2 BNA OSHC at 1064-65, 1973-1974 CCH
OSHD at p. 22,342 (Cleary, Comm’r, dissenting). Both theories were offered by Commissioner
Cleary to develop a MEP because, in order to accomplish the remedial purpose of the Act, “the
term ‘employee’ cannot be construed solely according to common law concepts of master and
servant.” J. E. Roupp & Co. & Denver Dry Wall Co. , 1 BNA OSHC 1680, 1681, 1973-1974 CCH OSHD ¶ 17,660, p. 22,068 (No. 146, 1974) (consolidated) (Cleary, Comm’r,
dissenting). These theories eventually became the foundation of “controlling employer” and
“creating employer” doctrines of the current MEP.

The origin of such doctrines in dicta and through an unauthorized Commission foray into
setting policy, as well as the “checkered history” of the doctrine, is extensively discussed by the
Review Commission in Summit I , 21 BNA OSHC at 2024, 2004-2009 CCH OSHD at p. 54,260,
and by the D. C. Circuit in Anthony Crane Rental , 70 F.3d at 1306-07. Also, the history of the
doctrine at the Commission and in the courts is reviewed by the Eighth Circuit in Solis v . Summit
Contractors, Inc. , 558 F.3d 815, 819-21 (8th Cir. 2009) (“ Summit II ”). These summaries
demonstrate that each case which expanded the common law master-servant doctrine did so in
order to achieve the broad remedial purposes of the OSH Act. Brennan v. OSHRC ( Dic-Underhill ), 513 F.2d 1032 (2d Cir. 1975); Teal v. E.I. DuPont de Nemours & Co. , 728 F.2d 799
(6th Cir. 1984); U.S. v. Pitt-Des Moines, Inc. , 169 F.3d 976 (7th Cir. 1999); Beatty Equip.
Leasing, Inc . v. Sec’y of Labor , 577 F.2d 534 (9th Cir. 1978); Universal Constr. Co, Inc. v.
OSHRC , 182 F.3d 726, 731 (10th Cir. 1999).

This approach has been superseded by the
Supreme Court’s decision in Darden and by the Commission’s own decisions in Timothy Victory
and Allstate Painting. Darden, 503 U.S. 318; Timothy Victory , 18 BNA OSHC 1023, 1995-1997 CCH OSHD ¶ 31,431 (No. 93-3359, 1997); Allstate Painting & Contracting Co ., 21 BNA
OSHC 1033, 2004-2009 CCH OSHD ¶ 32,804 (No. 97-1631, 2005) (consolidated).

4. The Mandate of the Supreme Court

In 1998, the D.C. Circuit noted in IBP, Inc. that Darden contradicts “the Secretary’s
view” justifying the MEP. The Secretary’s view, rejected by the D.C. Circuit, was that
“references to employment relationship were not intended to be restrictive or interpreted in the
common law sense” because of the “remedial” purpose of the Act. 144 F.3d at 865.
Subsequently, the Review Commission acknowledged that the Supreme Court’s opinion in
Darden mandates reconsideration of its prior broad interpretations of the term “employer” which
had permitted OSHA to treat independent subcontractors and their employees as employees of
the general contractor for purposes of liability under the OSH Act. Vergona Crane Co. , 15 BNA
OSHC 1782, 1991-1993 CCH OSHD ¶ 29,775 (No. 88-1745, 1992). Accordingly, the
Commission declared it would no longer follow its prior assumption that “[t]he term ‘employer’
under the Act is not limited to employment relationships as defined under common law
principles but rather is to be broadly construed in light of the statutory purpose and the economic
realities of the relationship at issue.” Timothy Victory , 18 BNA OSHC at 1026, 1995-1997 CCH
OSHD at p. 44,448 (citation omitted); see also Allstate Painting & Contracting Co ., 21 BNA
OSHC 1033, 2004-2009 CCH OSHD ¶ 32,804; AAA Delivery Servs., Inc ., 21 BNA OSHC 1219,
2004-2009 CCH OSHD ¶ 32,796 (No.

02-0923, 2005).

In Don Davis , the Commission held that under Darden , for an employer to be held liable
under the OSH Act, it is not enough that he controls the overall work; he must control the
workers. 19 BNA OSHC 1477, 1482, 2001 CCH OSHD ¶ 32,402, pp. 49,897-98 (No. 96-1378,
2001); see also Davenport v. Summit Contractors, Inc. , 45 Va. App. 526, 612 S.E.2d 239 (Va.
App. 2005) (holding Virginia state plan’s multi-employer citation policy may not be
implemented absent specific statutory or regulatory authorization, where both the Virginia
statute and its MEP track the federal language). Third Circuit Court of Appeals Judge Tashima
in Secretary of Labor v. Trinity Industries, Inc. , persuasively reasoned that the rationale of the
Supreme Court’s decision in Darden proscribed OSHA’s jurisdiction to cite an employer for
failure to protect its subcontractor’s employees. 504 F.3d 397, 403-04 (

3d Cir. 2007) (Tashima, J., dissenting).

The OSH Act establishes workplace safety duties of “employers” with respect to
“employees.” 29 U.S.C. § 654. The Supreme Court has clearly declared that,
unless a statute sets forth a broader definition, Congress intended the term
“employee” to connote traditional agency law criteria for master-servant
relationships. Nationwide Ins. Co. v. Darden, 503 U.S. 318, 322-24, 112 S.Ct.
1344, 117 L.Ed.2d 581 (1992) (describing this principle as “well established”).
Under Darden, Trinity is an “employer” for OSH Act purposes only with respect
to its own employees . . . . [A] failure to safeguard non-employees . . . is simply
outside the scope of the Act . . . .

Although, as the majority correctly notes, Darden was an ERISA case, its reach is
clearly not so limited. Darden announced a general rule of statutory construction
in broad language, which the Court has never attempted to limit to ERISA. See
id.; see also, e.g., Neder v. United States, 527 U.S. 1, 21-22, 119 S.Ct. 1827, 144
L.Ed.2d 35 (1999). Indeed, the Court reached its conclusion in Darden by
examining two previous attempts by the Supreme Court to impose a broader
definition of “employee” in the context of other laws, both of which resulted in
congressional amendment of the statutes to reflect the common-law definition of
“employee.” See Darden, 503 U.S. at 324-25, 112 S.Ct. 1344 (discussing the
National Labor Relations Act and the Social Security Act). The Supreme Court
and courts of this circuit have consistently applied Darden to other statutes that
include definitions of “employer” or “employee” similar to ERISA’s. See, e.g.,
Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-51, 123
S.Ct. 1673, 155 L.Ed.2d 615 (2003) (Americans with Disabilities Act); Walters v.
Metro. Educ. Enters., 519 U.S. 202, 211, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997)
(Title VII); Sempier v. Johnson & Higgins, 45 F.3d 724, 728 n. 4 (3d Cir.1995)
(Age Discrimination in Employment Act); Shapiro v. Sutherland, 835 F.Supp.
836, 837-38 (E.D.Pa.1993) (False Claims Act).

ERISA defines “employee” as “any individual employed by an employer.”
29 U.S.C. § 1002(6). That definition is essentially identical to the definition of
“employee” in the OSH Act. See id. § 652(6) (“The term ‘employee’ means an
employee of an employer who is employed in a business of his employer which
affects commerce.”). Other courts of appeals, as well as the Occupational Safety
and Health Review Commission itself, have already applied Darden to the Act.
See e.g., Slingluff v. OSHRC, 425 F.3d 861, 867-69 (10th Cir.2005); IBP, Inc. v.
Herman, 144 F.3d 861, 865 (D.C.Cir.1998); Loomis Cabinet Co. v. OSHRC, 20
F.3d 938, 941-42 (9th Cir. 1994); Sec’y of Labor v. Vergona Crane Co., Inc., 15
BNA OSHC 1782 (O.S.H.R.C.1992). The majority’s refusal to apply traditional
agency law principles to this case is therefore contrary to the reasoning of Darden
and is out of step with subsequent decisions of the Supreme Court, this circuit,
and other courts of appeals.

Id .

Indeed, the foundations of the “controlling employer” and “creating employer” doctrines
of the MEP starkly contrast with the rationale of Darden . The theory underlying the doctrines
was designed in persistent dissents by Commissioner Cleary opining that “the employees of a
subcontractor should be considered the employees of the general, or prime contractor” in order
to fulfill “the express purpose of the Act, to assure so far as possible every working man and
woman in the Nation safe and healthful working conditions.” Hawkins Constr. , 1 BNA OSHC at
1763, 1973-1974 CCH OSHD at p. 22,197 (dissenting opinion of Commissioner Cleary that
“employer” and “employee” under the Act should not be defined in the common law sense but
instead should be defined broadly to accomplish the remedial purpose of the Act); see also
James E. Roberts Co ., 1 BNA OSHC 1684, 1973-1974 CCH OSHD ¶ 17,659 (same). Then in
1975, the Review Commission adopted Commissioner Cleary’s doctrine, expressly holding that
the terms “employer” and “employee” in the Act should not be limited to employment
relationships defined under common law principles but rather should be broadly construed to
achieve the statutory purpose of workplace safety. Grossman Steel & Aluminum Corp. , 4 BNA
OSHC 1185, 1975-1976 CCH OSHD ¶ 20,691 (No. 12775, 1975). A few years later, the
Commission held a contractor responsible for the violations of an acknowledged independent
contractor because “the term ‘employer’ is one of art in remedial legislation that is to be defined
according to the statutory [purpose].” Griffin & Brand of McAllen, Inc. , 6 BNA OSHC 1703,
1705, 1978 CCH OSHD ¶ 22,829, p. 27,602 (No. 14801, 1978). Then in 1980, relying on its
analysis in Griffin & Brand , the Review Commission held S&S Diving Co. responsible for the
safety of divers who were independent contractors on the basis that “the term ‘employer’ under
the Act is not limited to employment relationships as defined under common law principles but
rather is broadly construed in light of the statutory purpose . . . .” S&S Diving Co. , 8 BNA
OSHC 2041, 2042, 1980 CCH OSHD ¶ 24,742, p. 30,465 (No. 77-4234, 1980).

There is no dispute that none of the common law indicia of employment set forth in
Darden suggests that Summit controlled any of the subcontractors’ employees, including the
employee exposed to the hazard addressed by the cited standard.

B. SECTION 1910.12(a) DEFINES APPLICATION OF PART 1926 STANDARDS

Moreover, § 1910.12(a) remains in tension with the MEP. The section of the OSH Act
authorizing specific employer duties unambiguously requires OSHA to exercise delegated
rulemaking authority under § 6 to promulgate standards defining specific employer duties.
29 U.S.C. §§ 654(a)(2), 656 (2009). It follows that § 5(a)(2) itself is an inchoate mandate,
requiring each employer to “comply with occupational safety and health standards promulgated
under this chapter.” Id. Delineation of the scope and application of specific duties requires
promulgation of standards under § 6 of the Act, 29 U.S.C. § 655 (2009). The regulation at issue,
§ 1910.12(a), defines the scope and the application of the entire set of Part 1926 construction
safety and health standards promulgated pursuant to § 6:

The first sentence makes the construction safety standards applicable to “every
employment and place of employment of every employee engaged in construction
work.” The second sentence makes each employer engaged in construction work
responsible for “his employees.”

Summit I , 21 BNA OSHC at 2024 n.6, 2004-2009 CCH OSHD at p. 53,263 n.6 (citations
omitted).

Thus, § 1910.12(a) defines the scope (who is obligated) and application (what duties are
owed to whom) of Part 1926 standards. See, e.g ., CH2M Hill, Inc. v. Herman , 192 F.3d 711,
717-18 n.1 (7th Cir. 1999); Reich v. Simpson, Gumpertz & Heger, Inc. , 3 F.3d 1, 5 n.8 (1st Cir.
1993) (“ Simpson ”); Brock v. Cardinal Indus., Inc ., 828 F.2d 373, 376-80 (6th Cir. 1987).
Notwithstanding, the Secretary has posited in the Summit cases (consolidated for argument
before this Commission) that § 1910.12(a) is a mere “adopting regulation,” intended by the
Secretary to adopt the Part 1926 standards pursuant to § 6 but not to govern enforceability of
Part 1926 standards. However, in Summit II t he Eighth Circuit majority held that interpretation
of §  1910.12(a) determines the enforceability of any Part 1926 standard against a non-exposing
employer:

Because the creating employer, correcting employer and controlling employer
citation policies [of OSHA’s MEP] permit OSHA to issue citations to employers
when their own employees are not exposed to the hazard, [any] reading [that]
§ 1910.12(a) [requires the employer to protect only “his employees”] effectively
precludes these policies and only permits the exposing employer citation policy.

Summit II , 558 F.3d at 824-25 (citation omitted). In his dissent, Judge Beam concurred in the
majority’s analysis “that 29 U.S.C. § 654(a)(2) incorporates the requirements of 29 C.F.R.
§ 1910.12(a) within the governance imposed by the [OSH Act].” Id. at 829-30 (Beam, J.,
dissenting). Thus, there appears to remain no question that whether or not § 1910.12(a) is a mere
“adopting regulation,” it governs the scope and application of Part 1926 standards.

C. SECTION 1910.12(a) CONFLICTS WITH OSHA’S MEP

The Review Commission has determined that the “controlling employer” doctrine of the
MEP irreconcilably conflicts with § 1910.12(a). Summit I , 21 BNA OSHC at 2029, 2004-2009 CCH OSHD at p. 53,263. The case was appealed, and the Eighth Circuit reversed and
remanded. Summit II , 558 F.3d at 829. Upon remand, the Commission applied to the facts of that
case its reading of the Eighth Circuit’s mandate “that the plain language of § 1910.12(a) ‘is
unambiguous in that it does not prelude OSHA from issuing citations to employers for violations
when their own employees are not exposed to any hazards related to the violations.’” Summit
Contractors Inc. , 22 BNA OSHC 1777, 1777-78, 2004-2009 CCH OSHD ¶ 33,010, p. 54,259
(No. 03-1622, 2009) (“ Summit III ”) (citation omitted), appeal dismissed , No. 10-1345 (8th Cir.
May 6, 2010) . Although I examine below the persuasiveness of the Eighth Circuit’s reasoning in
its reversal and remand, the Commission is not bound by the Eighth Circuit’s interpretation of
§ 1910.12(a); but persuasive dicta of the applicable D.C. Circuit is apposite.

The D.C. Circuit has twice noted in dicta that § 1910.12(a) appears to conflict with the
Secretary’s MEP. In Anthony Crane , the D.C. Circuit unanimously read § 1910.12(a) as having
“plain language.” 70 F.3d at 1303. The court noted a “marked tension” between the language of
§ 1910.12(a) and the Secretary’s multi-employer policy, emphasizing: “Here, the relevant
regulation by its terms only applies to an employer’s own employees , seemingly leaving little
room for invocation of the [multi-employer] doctrine.” Id. at 1307. The court, after noting that
the issue had not been briefed and had not been addressed by any other court, left “to a later date
the critical decision of whether to apply the multi-employer doctrine where an employer has
been cited under . . . § 1910.12.” Id. In IBP, Inc. , another panel of the D.C. Circuit similarly
noted the tension between the regulation and the policy: “We see tension between the
Secretary’s multi-employer theory and the language of the statute and regulations, and we have
expressed doubt about its validity before.” IBP, Inc. , 144 F.3d at 865-66. Not needing to decide
the issue, the D.C. Circuit again vacated the citation on other grounds.

Therefore, in this case, Commission precedent regarding consideration of the law in the
applicable circuit instructs the Commission to apply to the facts of this case the probable
interpretation by the D.C. Circuit, the circuit court to which Summit is likely to appeal. Am.
Wrecking , 19 BNA OSHC at 1710 n.7.

D. DECONSTRUCTION OF § 1910.12(a) DISTORTS INTENT

1. Expressed Intent

Prosecution of employers on a contract-based theory ignores the intent of the redactors of
§ 1910.12(a) to reject contract-based enforcement. The regulatory history of both §  1910.12(a)
and the predecessor CSA standards has been extensively discussed. See Summit I , 21 BNA OSHC
at 2026-28, 2004-2009 CCH OSHD at p. 53,263; Simpson , 3 F.3d at 4; Underhill Constr. Corp. v.
Sec’y of Labor , 526 F.2d 53, 55-56 (2d Cir. 1975) . In sum, the Secretary had included in the CSA
standards a regulation which expressly imposed contract-based liability outside the employment
relationship, § 1518.16, now § 1926.16. Yet, only a few weeks later, the Secretary then adopted
as OSHA standards the CSA’s safety and health standards, but expressly deleted all provisions
directed toward “contractors,” “subcontractors,” “laborers,” “mechanics,” and “contracts,” those
necessary only to contract-based enforcement, see § 107(a) of the CSA (now codified at 40 U.S.C.
§ 3704 (2009)) and 29 C.F.R. § 1910.12 (2009). This process demonstrates the Secretary found
an inconsistency between the OSH Act’s repeated and prominent references to “employer,”
“employee,” “employment,” and “places of employment,” and contract-based enforcement.
Thus the Secretary drafted § 1910.12 to make that distinction clear. Later, the drafters
reemphasized this distinction by adopting paragraph (c) of § 1910.12, stating “[t]his section does
not incorporate subparts A and B of part 1926 of this chapter. Subparts A and B have pertinence
only to the application of the CSA.” 29 C.F.R. § 1910.12(c) (2009). Thus § 1910.12(a) limited
the scope and application of the Part 1926 standards promulgated through the § 1910.12
regulations. It defined “the regulatory universe to which these [Part 1926] construction standards
apply.” Simpson , 3 F.3d at 4 .

The Secretary asserts that when she enacted § 1910.12(a), she fully intended to reserve
prosecutorial discretion to impose the § 5(a)(2) duty on the basis of voluntary contractual
relationships in addition to employment relationships. If the Secretary’s assertion were correct,
she logically would have retained the CSA’s regulation establishing an effective date for
coverage of contractual relationships. However, the Second Circuit in Underhill held that when
the Secretary adopted the CSA standards as OSHA standards, she discarded the effective date
for coverage of contractual relationships because:

[T] he Secretary’s publication of that new regulation [§ 1910.12] indicated his
intent to adopt only the CSA substantive rules and to discard under OSHA the
CSA provisions which were important only to CSA because of the contractual
basis of that earlier act.

Underhill , 526 F.2d at 56 (emphasis added).

Thus, the Underhill court read § 1910.12(c) as a
clarification of the Secretary’s intent that the contractually-based enforcement scheme of the
CSA would not be incorporated into the employment-based enforcement scheme of the OSH
Act. See Davenport , 45 Va. App. 526, 612 S.E.2d 239. If the Secretary had intended by
§ 1910.12(a) to apply Part 1926 standards to general contractors on a contract-based theory, she
would have done so pursuant to § 6(a) of the OSH Act by simply adopting the enforcement
scheme defined by the last sentence of § 1926.16(b), and deleting only those provisions directly
related to the federal contract predicate of § 1926.10(a).

2. How To Protect

If further analysis were necessary, any such analysis of § 1910.12(a) must not ignore the
explicit mandate of the adverbial phrase requiring protection from risk “by complying with
appropriate standards.” 29 C.F.R. § 1910.12(a) (2009). This adverbial phrase gives meaning to
the regulation when read as a whole. That is, the way an employer protects his employees
engaged in construction is by complying with appropriate Part 1926 standards. Yet, the
Secretary’s “controlling employer” theory imposes an obligation that differs from that imposed
by the Act or by § 1910.12(a). It is one thing to protect employees by complying with
appropriate standards; it is quite another to protect employees by requiring others to comply.
That is, the Secretary’s MEP would have “controlling employers” assume OSHA’s statutorily
delegated responsibility to regularly inspect entire construction sites to enforce subcontractor
compliance with the standards but without the protection provided to federal inspectors from
lawsuits by injured workers alleging the inadequacy of inspections.

Specifically, the MEP
states, “[a] controlling employer must exercise reasonable care to prevent and detect violations
on the site.” OSHA Instruction CPL 2-0.124 at X.E.2. (Dec. 10, 1999).

3. Whom to Protect

Language specifying to whom the duty to protect is owed is common to both § 5(a)(1),
the General Duty Clause, and § 1910.12(a). The Secretary has consistently conceded the
language derived from § 5(a)(1) and adapted to § 1910.12(a) describes the range of hazards from
which an employer must protect his employees . See OSHA Field Inspection Reference Manual
§ III.C.2.c.(2)(a)2 (Sept. 26, 1994) (“FIRM”) (“The employees exposed to the Section 5(a)(1)
hazard must be the employees of the cited employer.”); see, e.g. , Access Equip. Sys., Inc. ,
18 BNA OSHC 1718, 1724, 1999 CCH OSHD ¶ 31,821, p. 46,780 (No. 95-1449, 1999).

Moreover, in addition to § 1910.12(a), other such regulations drafted by the Secretary to
adopt pre-existing federal standards pursuant to § 6(a) of the Act use identical phraseology to
identify to whom the duty to protect is owed:

Ship repairing.

(a) Adoption and extension of established safety and health standards for ship
repairing . . . Each employer shall protect the employment and places of
employment of each of his employees engaged in ship repair or a related
employment, by complying with the appropriate standards prescribed by this
paragraph.

29 C.F.R. § 1910.13(a) (1981).

This language has been read as explicitly limiting an
employer’s duty to protect only “his employees.” Avondale Shipyards , 659 F.2d at 712.

The Eighth Circuit grammatically reconstructed the language of § 1910.12(a) as follows:
“(1) that an employer shall protect the employment of each of his employees . . . and (2) that an
employer shall protect the places of employment of each of his employees . . . .” Summit II , 558
F.3d at 824. The Eighth Circuit also gave the prepositional phrase “of his employees” its natural
meaning as “of only his employees.” Id. at 824 n.4; id. at 830 (Beam, J., dissenting) (stating
dissenting opinion ’s accord with “court’s fundamental grammatical interpretation of
§ 1910.12(a)”).  

In sum, § 1910.12(a) requires an employer to protect his employees and only his
employees.

4. What to Protect Against

The straightforward mandate of § 1910.12(a) is that the duty owed by any employer to
only his employees is the duty to protect them from all hazards addressed by an appropriate Part
1926 standard. 29 C.F.R. § 1910.12(a) (2009). The Eighth Circuit further sought to draw a line
between hazards arising from “employment” and those arising from “places of employment.”
The Eighth Circuit majority first acknowledged “our inquiry begins with the regulation’s plain
language,” but then immediately began a process of deconstruction. Summit II , 558 F.3d at 823.
The Eighth Circuit’s deconstruction seeks to find redundancy in the objects of risk prevention:
“The court will avoid an interpretation of a [regulation] that renders some words [in the phrase
‘employment and places of employment’] altogether redundant.” Id. (citation and quotations
omitted and second alteration added). This process defeats its own goal. No deconstruction is
necessary to determine “whether the language at issue has a plain and unambiguous meaning
. . . .” Id . (citation omitted). The literal interpretation of the regulation when read as a whole is
not ambiguous. But even if further analysis were necessary, the Supreme Court warned,
“literalness” in statutory construction “may strangle meaning.” Lynch v. Overholser , 369 U.S.
705, 710 (1962). “[T]he meaning of a word must be ascertained in the context of achieving
particular objectives, and the words associated with it may i ndicate that the true meaning of the
series is to convey a common idea.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc . ,
467 U.S. 837, 860-61 (1984). Instead, the Eighth Circuit’s deconstruction interprets terms in
isolation from their common idea. “Courts should avoid slicing a single word from a sentence,
mounting it on a definitional slide, and putting it under a microscope in an attempt to discern the
meaning of an entire statutory provision.” Wachovia Bank v. U.S. , 455 F.3d 1261, 1267 (11th
Cir. 2006). The Supreme Court explained:

The definition of words in isolation . . . is not necessarily controlling in statutory
construction. A word in a statute may or may not extend to the outer limits of its
definitional possibilities. Interpretation of a word or phrase depends upon reading
the whole statutory text, considering the purpose and context of the statute, and
consulting any precedents or authorities that inform the analysis.

Dolan v. U.S. Postal Serv. , 546 U.S. 481, 486 (2006).

Therefore, the meaning of the phrase “employment and places of employment” from
§ 1910.12(a) is best understood as an entity in terms of its peculiar and appropriate use in the
context of implementation of the OSH Act. Indeed the phrase is directly drawn from the context
and thrust of the OSH Act. Provisions of the Act are consistently directed toward protection of
employees from exposure to or being affected by hazards in their employment or places of
employment. Cf. §§ 6(a), 6(b)(5), 6(b)(7), 6(c)(l), 6(d), 8(c)(1), 10(c), 13(c), 16, 20(a)(3),
20(a)(5)-(7) of the Act, 29 U.S.C. §§ 651-678 (2009). In a grammatical sense, the subject/verb
clause “each employer shall protect,” modified by the adverbial phrase “by complying with
appropriate standards,” is directed toward the object of elimination of risk. Read in its entirety,
protection of “employment and places of employment of his employees engaged in construction”
encompasses the full array of risk to an employer’s employees. Risk is prevented by complying
with the Part 1926 construction standards.

Congress did not define the term “hazard” in the Act. Nevertheless, it would
appear that when it is employed within an Occupational Safety and Health
Standard, relating to providing safe or healthful working conditions in
e mployment and places of employment, hazard is risk incident to the nature of the
work performed and to the nature of the place of employment .  . . .

Raven Indus., Inc , 4 OSAHRC 897, 907, 1973 WL 4186 at *5 (No. 2542, 1973) (ALJ).

This analysis adapts well here. Thus, in Raven the administrative law judge recognized
the correlation in the OSH Act between prevention of exposure to hazards and the associated
terms “employment and places of employment.” Hazards arising from “employment” are “risk
incident to the nature of the work performed,” i.e. , work methods or processes. Id . Hazards
arising from “places of employment” are risk incident to “the nature of the place of
employment,” i.e. , condition or structure of workplace or facilities. Id. The Second Circuit in
Underhill recognized such a correlation in specific reference to § 1910.12:

[The provisions of the OSH Act] make clear that the Secretary intended to adopt,
indeed had the statutory authority to adopt, only those provisions in the CSA
regulations which require “conditions, or the adoption or use of one or more
practices, means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of employment.”

Underhill , 526 F.2d at 57 (discussing the OSH Act’s definition of the word “standard”).

Section 3(8) of the Act makes the same correlation. It defines an “occupational safety
and health standard” as a “standard which requires conditions [risk incident to the nature of the
place of employment], or the adoption or use of one or more practices, means, methods,
operations or processes [risks incident to the nature of the work performed], reasonably
necessary or appropriate to provide safe or healthful employment and places of employment.”
29 U.S.C. § 652(8) (2009).

Furthermore, the variance procedure described in § 6(d) establishes an equivalence
between on the one hand, the employer duty described by § 1910.12(a) to comply with standards
to protect “the employment and places of employment of his employees,” and on the other hand,
substituted identical protection to protect his employees by providing safe and healthful
“conditions, practices, means, methods, operations, or processes.” 29 C.F.R. § 1910.12(a)
(2009); 29 U.S.C. § 655(d) (2009). Pursuant to § 6(d), an employer may apply for a variance to
prevent the risk addressed by a standard so long as the alternative method provides safe and
healthful “employment and places of employment to his employees . . . .” 29 U.S.C. § 655(d)
(2009). The variance procedure must provide just as safe and healthful “conditions, practices,
means, methods, operations, or processes.” Id.

Replacement within § 1910.12(a) of functionally equivalent alternatives for the terms
“employment” and “places of employment” demonstrates a flaw in the logic underpinning the
Eighth Circuit majority’s analysis. This analysis logically proceeds through the following
deductive categorical syllogism:

Major premise : Separate provisions in an enactment cannot mandate the same
thing.

Minor premise : If both employer duties in § 1910.12(a) are construed to
be limited to protection of only his employees, then the duty to protect “the
employment of his employees” and the duty to protect “the places of employment
of his employees” are identical mandates.

Conclusion : “To give independent
meaning to the term ‘place[s] of employment’ would require the employer to
protect others who work at that place of employment so long as the employer also
has employees at that place of employment.”

Summit II , 558 F.3d at 825 ; cf. Clinton v. City of New York , 524 U.S. 417, 474 (1998) (Breyer, J.,
dissenting) .

To the contrary, even if it were appropriate to separate and interpret in isolation
associated words given meaning by the Act as a unit, the hazards arising respectively from
“employment” and from “places of employment” can be read as entirely distinct categories in
perfect harmony with the employment-based enforcement scheme of the Act. Consistent with
the express purpose stated in § 2(b)(2) of the Act that interdependent duties to protect run from
employers to their employees, the hazards protected against by application of the Part 1926
standards are sorted by the phrase “employment and places of employment of his employees”
into two mutually exclusive classes which taken together encompass the entire universe of
construction industry hazards. Thus, the problem with the Minor Premise is that the hazards
arising from “employment” need not overlap the hazards arising from “places of employment.”
In short, the conditional proposition of the minor premise is false.

Risk incident to the nature of the work performed arises from the practices, means,
methods, operations, or processes used in the “employment of his employees.” An employer
protects his employee from risk incident to employment by complying, for example, with the
mechanical equipment standard, § 1926.952(a)(3), which proscribes unsafe operations of
mechanical equipment without the use of backup lights or a spotter.

Risk incident to the nature
of the place of employment arises from the conditions that exist in the places of employment of
his employees. An employer protects his employee from risk incident to a place of employment
by complying, for example, with the “Housekeeping” standard, § 1926.25(a), which proscribes
unsafe physical conditions like protruding nails or other debris.

In sum, it is not true, as the
Eighth Circuit’s Minor Premise argues, that one could not “envision a situation where the
protection of a ‘place of employment’ will not be directly related to or encompassed by the
protection of ‘employment.’” Summit II , 558 F.3d at 825 . The syllogism is unconvincing
“because its Minor Premise is faulty.” See Clinton , 524 U.S. at 474 (Breyer, J., dissenting).
Also unconvincing, then, is the Eighth Circuit’s ultimate conclusion, dependent on the validity
of this syllogism, that deconstruction of § 1910.12(a) removes the plain conflict between the
MEP and the regulation.

E. ENFORCEMENT OF MEP CONFLICTS WITH CITED STANDARD

Even assuming arguendo that the OSH Act and § 1910.12(a) both permit citation of non-exposing employers, the plain language of the cited standard imposes a duty on “employers” to
provide ground-fault protection to “employees.” Section 1926.404(b)(1)(i) establishes general
applicability of the standard and states that the employer shall use either ground-fault
interrupters as specified in paragraph (b)(1)(ii) or an assured equipment grounding conductor
program as specified in paragraph (b)(1)(iii). 29 C.F.R. § 1926.404(b)(1) (2009). Subsection
1926.404(b)(1)(ii) requires GFCI protection for employees.  The cited standard assigns no
responsibility to the provider of electrical service to monitor users to ensure GFCI protection of
all circuits. Neither did the contract in this case:

¶ 6. All parties hereby agree that Contractor may provide, in locations determined
to be appropriate for the project, temporary electrical, temporary water and
temporary toilet services. Further, Subcontractor shall make use of the services as
provided.

An even more specific mandate to the subcontractor who makes use of provided services
is the contract’s assignment to the subcontractor of the responsibility “to acquire at its own
expense any additional utilities or services it may require to perform its scope of work . . . .”
Included within the subcontractor’s scope of work in the contract was compliance with
applicable OSHA standards:

¶ 4. All parties hereby agree that SUBCONTRACTOR has the sole responsibility
for compliance with all of the requirements of the Occupational Safety and Health
Act of 1970.

The employer in the best position and obligated under both the contract and the standard
to select among GFCI protection options and periodically test GFCI functionality was the
employer who assigned and supervised employees who used the electrical service, in this case
Springhill and its subcontractor Mendoza. To comply with its obligation to use the temporary
electrical service in compliance with § 1926.404(b)(1), Springhill’s Superintendent Hill
acknowledged he had authority under the contract with Summit to have the multiple outlet spider
box replaced with a GFCI-equipped spider box. Alternatively, Summit’s subcontractors could
have required their own employees using the electrical service to plug power tool cords into
GFCI-equipped portable pigtails. OSHA’s Compliance Officer (“CO”) recommended the most
convenient and inexpensive option for complying with the standard would be for each user of the
electrical service to plug the cord of the tool being used into a portable GFCI-equipped “pigtail.”

A pigtail would be plugged into the spider box, into the 120 outlet, like a short
extension cord. And, then, the extension cord plugged into that. And, then,
between the extension cord and the 120 outlet, you would have a GFCI in there, a
portable GFCI.

The CO testified these GFCI pigtails could be purchased “from Lowe’s,” estimating the cost at
no more than ten to twelve dollars each. Cf. Lewis & Lambert Metal Contractors, Inc ., 12 BNA
OSHC 1026, 1027, 1980 CCH OSHD ¶ 27,073, p. 34,897 (No. 80-5295-S, 1980) (holding sheet
metal subcontractor whose employees used electric tools to perform work was responsible for
installing “portable, commercially available ground-fault circuit interrupters,” i.e. , pigtails).

The CO never suggested that protection of the subcontractors’ exposed employees
depended upon Summit leasing from Cleveland Brothers Equipment Rental (“Cleveland
Brothers”) temporary electrical service internally wired with GFCI circuit breakers. To the
contrary, the CO recommended that the employees who used the tools be provided with portable
pigtails. It is self-evident that an employee operating a power tool can more easily reset a
tripped breaker on a portable pigtail connected to his own tool than reset a tripped circuit breaker
at the power source, which would require him to trace his individual electrical circuit to a truck-mounted generator. In addition, it is possibly far less technically intimidating and certainly more
convenient to press a test button on a pigtail to ensure functionality of ground fault interruption
than to test an internal circuit breaker within the control panel of a 14.4 kW generator or even
inside a spider box. The clear preference under this standard for allowing the exposing employer
to choose the most appropriate among alternative compliance methods illustrates one of the
reasons why in one of its earliest decisions regarding OSHA’s MEP, the Review Commission
rejected OSHA’s position that “a general contractor is responsible jointly with his subcontractors
for compliance purposes.” Gilles & Cotting , 1 BNA OSHC at 1389, 1973-1974 CCH OSHD at
p. 21,512. The Review Commission described the dichotomy caused by a MEP which imposes
identical abatement obligations on both a non-exposing general contractor like Summit and
exposing subcontractors like Springhill and Mendoza:

Since the [abatement] duty is the same each would have an equal right to abate by
any available method and a right to use any available resource to achieve
abatement. . . . Oftentimes the available resource is the employees affected by the
hazardous conditions of the violation. Usually those employees are employed by
the subcontractor. Moreover, the subcontractor’s employees may be the only
workers on the job site who have the skills necessary to achieve abatement . . . . It
is hornbook law that the right to direct and control the activities of the employees
is vested in the employer. Accordingly, [OSHA’s rejected] position would create
a limited employment relationship for the purposes of this Act.

Id.

In this case, subcontractors Springhill and Mendoza had both the practical ability and the
legal obligation pursuant to uncontested OSHA citations to select the GFCI option appropriate
for their employees’ use of the electrical service. Certainly in this case, imposing abatement
obligations on multiple parties could lead not only to deprival of the exposing employer of his
opportunity to choose the appropriate abatement method; it could lead also to confusion of
continuing abatement obligations by both prime and subordinate contractors. The Secretary’s
own reading of the cited standard, elucidated in the preamble, as well as in two OSHA
interpretation letters, confirm that the agency itself recommends the choice between GFCI
options be made by the employer with exposed employees. The preamble to Subpart K
“Electrical” includes a discussion of which option an individual employer might choose to
satisfy its obligation under the standard to protect its employees:

[A]n employer may choose one method of protection or the other on the basis of
several factors. The individual employer may choose on the basis of cost; if his
jurisdiction already requires GFCI’s, he may choose GFCI’s; if he is one
employer of many on a construction site, the availability of alternatives gives him
flexibility to coordinate compliance. Another factor considered by an employer
could be the size of his operation – a smaller employer may opt for the purchase
of one or more portable GFCI’s while a larger employer might pick the assured
grounding conductor program.

Ground-Fault Protection, 41 Fed. Reg. 55,696, 55,702 (Dec. 21, 1976); see Martin v. Am.
Cyanamid Co. , 5 F.3d 140, 145 (6th Cir. 1993) (holding preamble to regulation may be
consulted in determining administrative construction and meaning of regulation); Phelps Dodge
Corp. , 11 BNA OSHC 1441, 1444, 1983-1984 CCH OSHD ¶ 26,552, p. 33,920 (No. 80-3203,
1983) (stating standard’s “preamble is the best and most authoritative statement of the
Secretary’s legislative intent”), aff’d , 725 F.2d 1237 (9th Cir. 1984).

OSHA’s position that the exposing employer chooses between GFCI options is further
confirmed by two letters of interpretation issued by OSHA. See Martin v. OSHRC ( CF&I ), 499
U.S. 144, 150 (1991) (courts may consider informal interpretations, such as interpretive rules
and guidelines, to determine reasonableness of interpretation). In letters of interpretation dated
February 7, 2005, and March 22, 2005, issued just months before the May 5, 2005 citation at
issue here, OSHA explained that the preamble “reflects an intent that the term ‘employer’ as
used in § 1926.404(b)(1), when applied at a construction site with multiple employers,” means
that “each employer/subcontractor on the site that has exposed employees” is obligated to ensure
“that one of the options in § 1926.404(b)(1) is in ‘use.’” See OSHA Interpretation Letters to
Jeffrey P. Scarpello (February 7, 2005) and John P. Masarick (March 3, 2005).

The Secretary argues in her opening brief that “the existence of an employment
relationship . . . is irrelevant” under the MEP. But there is no logic to establishing a policy that
makes the existence of an employment relationship irrelevant at contra-purpose to a standard
designed to have the choice of GFCI protection made by the exposing employer. In such cases,
the D.C. Circuit in IBP, Inc. found it “unclear what the Secretary hoped to accomplish” where:

[T]he employer who could easily control its own employees’ disciplinary
infractions, had already been held liable for the same violation. The majority’s
decision, moreover, seems to reduce general contractors’ incentive to advance
workplace safety – rather than cracking down on safety through contract
termination, they would respond to it simply by eliminating any reference to
safety in subcontracts.

144 F.3d at 867.

The Secretary concedes “the National Electrical Code 2005 (‘NEC’) permits using a
portable pigtail to implement GFCI in a temporary wiring system,” and does not require the
circuits of temporary power generators to be equipped with GFCI circuit breakers. Somewhat
inconsistently with this position, considering the parallel between the language of the NEC and
the language of the cited standard, the Secretary cites Lee Roy Westbrook Construction Co., Inc .,
for the proposition that a general contractor supplying a generator without internal GFCI circuit
breakers creates a violation of the cited standard. 14 BNA OSHC 1751, 1990 CCH OSHD
¶ 29,205 (No. 88-2710, 1990) (ALJ). But Lee Roy Westbrook is not binding because it is an
unreviewed decision of an OSHRC administrative law judge. See Leone Constr. Co. , 3 BNA
OSHC 1979, 1981, 1975-1976 CCH OSHD ¶ 20,387, p. 24,322 (No. 4090, 1976) (finding that
unreviewed administrative law judge decision does not constitute binding precedent for the
Commission). Further, the case is inapposite because there OSHA issued the citation to the
subcontractor who failed to use pigtails, not to the general contractor. What is relevant herein
about the circumstances in that case, however, is that Westbrook employees were more reliably
able to check the functionality of portable GFCI pigtails connected to their tools than to check
internal ground-fault circuit interrupters in a generator circuit. Lee Roy Westbrook , 14 BNA
OSHC at 1752.

But even if the standard were somehow contorted to require temporary electrical service
at a construction site be incorporated with internal GFCI circuit breakers at the source of power,
Summit would not be a creating employer. The employer at the site in the better position than
Summit to comply with such a technically sophisticated requirement would be the specialized
electrical equipment leasing contractor, Cleveland Brothers, who delivered and on call
maintained the generator providing a source of power.

In many situations in the workplace, it is natural for an employer to rely upon the
specialist to perform work related to that specialty safely in accordance with
OSHA standards . . . . [S]o long as the reliance is reasonable and the employer has
no reason to foresee that the work will be performed unsafely.

Sasser Elec. & Mfg Co. , 11 BNA OSHC 2133, 1984-1985 CCH OSHD ¶ 26,982 (No. 82-178,
1984), aff’d per curiam , 12 BNA OSHC 1445 (4th Cir. 1985) (unpublished).

In sum, “there can be no violation of the Act by a respondent for failure to comply with a
standard which charges some other employer with the duty of implementing the standard.” Se.
Contractors , 1 BNA OSHC 1713, 1716, 1973-1974 CCH OSHC ¶ 17,787, p. 22,149 (No. 1445,
1974) (dissent by Chairman Moran adopted on appeal, 512 F. 2d 675 (5th Cir. 1975)); see
Avondale Shipyards , 659 F.2d at 711 (citation omitted).

F. NO DEFERENCE IS OWED TO OSHA’S INTERPRETATION

Because the statute, § 1910.12(a), and the cited standard unambiguously assign duties to
run from employers to their employees, “we owe no deference to a contrary construction even if
formally adopted by the Secretary.” Cf . D.C. Hosp. Ass’n , 224 F.3d 776; see CF&I , 499 U.S. at
156-57. Rather, the Review Commission is required to give effect to plain language. See
Arcadian Corp. , 17 BNA OSHC 1345, 1347, 1995-1997 CCH OSHD ¶ 30,856, p. 42,917 (No.
93-3270, 1995) (statutory analysis ends if language is plain), aff’d , 110 F.3d 1192 (5th Cir.
1997). “[C]ourts must presume that a legislature says in a statute what it means and means in a
statute what it says there . . . . [W]hen the words of a statute are unambiguous, then, this first
canon is also the last: ‘judicial inquiry is complete.’” Conn. Nat’l Bank v. Germain , 503 U.S.
249, 253-54 (1992). Even if an isolated phrase were susceptible to expansive interpretation, the
enforcement scheme intended by Congress, the language of § 1910.12(a), and the intended
application of the standard are plain. To the contrary, “[t]he doctrine [of the MEP] has
somewhat of a checkered history.” IBP, Inc ., 144 F.3d at 866 n.3. “[T]he Secretary’s ever-changing compliance guidelines – be it the FOM, COM, CPL, or FIRM – taken in contrast with
a regulation which has not been amended since 1971, results in the latter trumping whatever
reliance the Commission can place on the varying nature of the policy.” Summit I , 21 BNA
OSHC at 2024. In assessing the authority of the Secretary’s interpretation of an enactment,
including one of her own regulations such as § 1910.12(a), the Commission considers whether
her interpretation “‘sensibly conforms to the purpose and wording of the regulation[]’, taking
into account ‘whether the Secretary has consistently applied the interpretation embodied in the
citation,’ . . . and ‘the quality of the Secretary’s elaboration of pertinent policy considerations.’”
Union Tank Car Co. , 18 BNA OSHC 1067, 1069, 1995-1997 CCH OSHD ¶ 31,445, p. 44,470
(No. 96-0563, 1997) (quoting CF&I , 499 U.S. at 151, 157-58).

Here, the Secretary’s pronouncements concerning her MEP were published in a set of
enforcement guidelines, most recently revised in 1999, directed toward OSHA’s field
compliance inspectors: OSHA’s Compliance Operations Manual at VII-6 to -8 (May 1971)
(“OSHA COM (May 1971)”). The Secretary’s only “elaboration of pertinent policy
considerations” for her first set of construction industry multi-employer citation guidelines
stated: “because of the nature of the construction industry and the complex employer
relationships involved, difficult issues as to which employer should be cited will often arise.” Id.
at VII-7 ¶ 10(e). OSHA’s initial MEP authorized citation of employers who create a hazard
“endangering employees (whether his own or those of another employer),” id. at VII-6 ¶ 10(b),
or whose employees “have used . . . unsafe equipment.” Id. at VII-7 ¶ 10(c); cf . Summit I ,
21 BNA OSHC at 2020 .

The manual was revised six months later to remove the reference to employers
who supply unsafe equipment. See OSHA Compliance Operations Manual
(“COM”) p. VII-8 para. 13 (Nov. 5, 1971). Approximately three years later,
OSHA again narrowed its citation policy [eliminating citations to hazard-creating
employers]. In July 1974, OSHA amended the FOM, instructing compliance
personnel to cite only an employer on a construction site who has exposed his
own employees to an unsafe condition. OSHA FOM ¶ 4380.6 (July, 1974).

Summit I , 21 BNA OSHC at 2023, 2004-2009 CCH OSHD at p. 53,262. The Eighth Circuit
majority summarized the additional alterations of the MEP after 1976:

In 1981, the correcting employer citation policy was added. It allowed OSHA to
issue citations to the employer responsible for correcting the hazard even if its
own employees were not exposed to the hazard. OSHA, Field Operations Manual
OSHA Instruction CPL 2.49 (Dec. 23, 1981). In 1994, the multi-employer
worksite policy was amended to add the creating employer and the controlling
employer citation policies. OSHA, Field Inspection Reference Manual OSHA
§ V.C.6 (Sept. 26, 1994). The current OSHA manual was published in 1999, and
its multi-employer worksite policy contains the same four citation policies –
exposing employer, correcting employer, creating employer and controlling
employer – as the 1994 version. See OSHA, Field OSHA, Field Inspection
Reference Manual OSHA Instruction CPL 2.103 (Dec. 10, 1999).

Summit II , 558 F.3d at 821.

The Secretary never supplied any analysis whatsoever of the legal authority supporting
the original MEP, let alone the multiple changes of course in her guidelines. Summit I , 21 BNA
OSHC 2020, 2004-2009 CCH OSHD ¶ 32,888; see Greater Boston Television Corp. v. FCC ,
444 F.2d 841, 852 (D.C. Cir. 1971) (agency changing its course must supply a reasoned analysis
indicating that prior policies and standards were being deliberately changed, not casually
ignored). More specifically, as the Secretary changed course, she offered no explanation of how
she reconciled the “marked tension” between the language of § 1910.12(a) and her varied multi-employer citation policies. Anthony Crane Rental , 70 F.3d at 1306-07. “[A]t no time throughout
this period of over twenty years did the Secretary ever note that § 1910.12(a) contains language
which on its face is in apparent conflict with the policy.” Summit I , 21 BNA OSHC at 2023-24,
2004-2009 CCH OSHD at pp. 53,262-63 .

The Secretary cannot claim her promulgation of the MEP repealed or amended
§ 1910.12(a). Announcing and then revising multi-employer citation enforcement guidelines
directed toward field personnel through publication of the FOM, COM, CPL, or FIRM, is an
exercise of prosecutorial discretion, not an exercise of delegated legislative powers. An exercise
of prosecutorial discretion cannot amend the governance of § 1910.12(a), and certainly it cannot
amend the OSH Act itself. It is well-settled that an agency cannot exercise prosecutorial
discretion to remove a substantive limitation on enforcement discretion, even one imposed by its
own governance, and certainly not one imposed by Congress within the Act itself. In Vitarelli v.
Seaton , the Supreme Court held that even agencies with broad discretion must adhere to
internally promulgated regulations limiting the exercise of that discretion. 359 U.S. 535, 539-40
(1959) (holding that limitation on agency discretion voluntarily adopted by Department of the
Interior restricted that agency’s discretion even after removal of the underlying statutory or
judicial purpose); see also Graham v. Ashcroft , 358 F.3d 931, 932 (D.C. Cir. 2004) (explaining
that “[i]t is well settled that an agency, even one that enjoys broad discretion, must adhere to
voluntarily adopted, binding policies that limit its discretion” (citing Padula v. Webster , 822
F.2d 97, 100 (D.C. Cir. 1987)); U.S. v. Nixon , 418 U.S. 683 (1974) (stating that “[s]o long as this
regulation is extant it has the force of law”).

The Secretary’s position is that her most recent change of course on the MEP is merely
an exercise of reserved prosecutorial discretion consistent with her broad authority under
§ 5(a)(2) of the Act. She also asserts her multi-employer citation guidelines implement her
interpretation that § 5(a)(2) requires employers to comply with occupational safety and health
standards, and that this requirement is not limited to compliance with standards that protect an
employer’s own employees. Accordingly, the Eighth Circuit ruled that notwithstanding the
changes in course of the Secretary’s policy for enforcement of Part 1926 standards pursuant to
§ 1910.12(a), “[w]e defer to the Secretary’s interpretation of her regulation [§ 1910.12(a)], not
the Secretary’s interpretation of her multi-employer worksite policy.” Summit II , 558 F.3d at 825-26. Thus, rather than examining the reasonableness and consistency of the Secretary’s wavering
enforcement policy, the Eighth Circuit in Summit II construes as the Secretary’s interpretation of
§ 1910.12(a) – and then defers to – an interpretation which the court determined had been
signaled by the Secretary’s exercise of prosecutorial discretion in her initial MEP. That version
of the MEP proscribed enforcement against non-exposing employers but permitted citation of
employers who provide hazardous equipment, “endangering employees (whether his own or
those of another employer) . . . .” See OSHA COM at VII-6 ¶ 10(b), (c) (May 1971). The
Eighth Circuit found the Secretary’s application of the multi-employer worksite policy is only
relevant to the extent that it sheds light on the Secretary’s interpretation of § 1910.12(a). The
court inferred from this 1971 policy directive (enforced from May 20, 1971 until retracted in
pertinent part on November 15, 1971) and from a citation issued by OSHA to a general
contractor eight months after the promulgation of § 1910.12(a), that OSHA intended to preserve
authority to cite non-exposing general contractors on a contractual basis. Summit II , 558 F.3d at

829. Deference to this inferred interpretation of § 1910.12(a) is inappropriate for four reasons:

(1) The Eighth Circuit deferred to an inference regarding OSHA’s interpretation of a
specific phrase of a specific sentence in § 1910.12(a), i.e. , that the phrase “places of employment
of his employees” in the second sentence of the regulation permits OSHA to impose a duty on
contractors to ensure subcontractors comply with Part 1926 standards. But that interpretation is
inconsistent with the Secretary’s litigation position in the Summit cases combined for argument
before the Commission. Summit I , 21 BNA OSHC at 2024 (majority opinion) (expressing
disagreement with the Secretary’s position that a broad reading of “the first sentence of the
regulation permits or allows a broader class of employers, including those not having employees
exposed to the cited hazard to be cited under the policy”); id . at 2034-35 (Rogers, Comm’r,
dissenting) (supporting the Secretary’s citation on the basis of “a more generalized duty imposed
by the first sentence [on the controlling general contractor]; “the second sentence merely
emphasizes the primary responsibility of the direct employer to comply with the appropriate
standards”).

(2) The enforcement guideline from which the inference is derived, published in the
initial May 1971 COM, is entirely consistent with another inference premised not on a
contractual predicate, but on a master-servant predicate, i.e ., that the Secretary assumed an
employer “creating a hazard endangering employees (whether his own or those of another
employer)” at a frequently changing multi-employer construction site at which his employee is
regularly employed, necessarily puts his own employees at risk, even if that exposure is not
imminent. In the earliest case in which multi-employer liability was rejected by the
Commission – the 1974 case Humphreys & Harding – Commissioner Cleary in his dissent
asserted as a basis for multi-employer liability that “the potential as well as the actual exposure
of respondent’s employees should be considered in ascertaining [multi-employer] duties under
the Act . . . . The Act expressly contemplates that potential exposure of an employer’s workers
will make him responsible for a hazard’s abatement.” 1 BNA OSHC at 1703, 1973-1974 CCH
OSHD at p. 22,143 (citing §§ 8(f)(1), 13(a), and 17(k) of the Act); see also Gilles & Cotting ,
1 BNA OSHC at 1390 (dissent by Commissioner Cleary from majority’s rejection of citation of
non-exposing employer noting that the majority had not refuted the trial judge’s finding that
“employees of this respondent were affected” by the cited hazard). Indeed, the Commission has
reversed its position to affirm citations against so-called “non-exposing creating employers”
when on closer review an employee of the employer would potentially be exposed to the created
hazard. See, e.g. , Anthony Crane Rental , 17 BNA OSHC 2107, 1995-1997 CCH OSHD
¶ 31,251. “The creation of violative employment conditions [at a multi-employer site] puts all
employees at risk.” Summit I , 21 BNA OSHC at 2029 (Thompson, Comm’r, concurring); cf.
Grossman Steel , 4 BNA OSHC at 1188, 1975-1976 CCH OSHD at p. 12,775. Consistent with
this alternative inference, the only example given within the initial May 1971 COM of “non-exposing employer” liability was in fact an exposing employer. Specifically, the example stated
in the COM was a welding employer whose “unsafe welding operations may adversely affect the
employee of the welding employer as well as those of other employers.” OSHA COM at VII-6 ¶
10(b) (May 1971). However, OSHA’s rethinking of the fragile assumption that necessarily a
creating employer is an exposing employer was demonstrated by the circumstance that six
months after publishing the initial 1971 MEP the Secretary withdrew authority to cite non-exposing employers who provide unsafe equipment, see OSHA COM pp. VII-7 to -8 (Nov. 15,
1971), and withdrew authority to cite “non-exposing creating” employers less than three years
later. OSHA FOM ¶ 4380.6 (July, 1974); see Summit I , 21 BNA OSHC 2020, 2004-2009 CCH
OSHD ¶ 32,888.

(3) The May 20, 1971 announcement did not confirm OSHA’s intent to preserve
discretion to prosecute controlling employers on a contractual basis. See Summit II , 558 F.3d at
821 ( concluding “the manual’s initial multi-employer worksite policy adopted the creating
employer and the exposing employer citation policies, but not the controlling employer citation
policy”).

(4) Any inference regarding the Secretary’s interpretation of § 1910.12(a) that may be
extrapolated from the informal agency procedures involved in developing the MEP is entitled to
deference only to the extent the inferred interpretation “‘sensibly conforms to the purpose and
wording of the regulation[]’, taking into account ‘whether the Secretary has consistently applied
the interpretation embodied in the citation,’ . . . and ‘the quality of the Secretary’s elaboration of
pertinent policy considerations.’” Union Tank Car Co. , 18 BNA OSHC at 1069, 1995-1997 CCH OSHD at p. 44,470 (quoting CF&I , 499 U.S. at 151, 157-58); cf. Citizens Exposing
Truth , 492 F.3d 460. Applying that test, it defies logic to reconstruct the plain meaning of
§ 1910.12(a) on the basis of the definition of an isolated phrase in the Secretary’s regulation
when that definition has never been suggested by the Secretary; when that interpretation is based
entirely on an unwarranted inference; when any inference regarding “controlling employer”
doctrine must necessarily be derived from non-binding “controlling employer” internal
guidelines first developed twelve years after enactment of the OSH Act; and especially when
that

inference is out of harmony with the OSH Act, in tension with the plain language of
§ 1910.12(a), and at contra-purposes with the cited standard.

For all the reasons stated above I respectfully dissent.

/s/                                             

Horace A. Thompson III

Dated:   8/19/2010                                                         Commissioner

SECRETARY OF LABOR,                             :

:

Complainant,                            :

:

v.                                                           :                        OSHRC DOCKET NO. 05-0839

:

SUMMIT CONTRACTORS, INC.,                 :

:

Respondent.                              :

Appearances:

Judson H.P. Dean, Esquire                               Robert E. Rader, Jr., Esquire

U.S. Department of Labor                                Rader & Campbell

Philadelphia, Pennsylvania                               Dallas, Texas

For the Complainant.                                        For the Respondent.

Before:              John H. Schumacher

Administrative Law Judge

DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10©) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq . (“the Act”). The Occupational Safety and Health Administration (“OSHA”)
inspected a work site of Summit Contractors, Inc. (“Summit”), located in Lebanon, Pennsylvania, on April 26, 2005. As a result, OSHA on May 15, 2005, issued a one-item serious citation
alleging a violation of 29 C.F.R. § 1926.404(b)(1)(ii). The citation alleges that Summit, the
general contractor at the construction site, failed to ensure that employees of a framing subcontractor were properly protected from electrical hazards created by the use of a portable electrical
generator and spider box that were supplying power to the site but had no ground fault circuit
interrupter (“GFCI”) protection. The citation proposes a penalty of $1,225.

Summit timely contested the citation, this case was designated as an E-Z Trial proceeding, and the hearing in this matter was held on December 21, 2005, in Harrisburg, Pennsylvania.

The record was held open, by joint request of the parties, until April 17, 2006, so that
counsel for each side could take a post-hearing deposition and file post-hearing and reply briefs.

Summit does not dispute the existence of the violative condition as described in the
citation. Summit asserts, however, that as a general contractor who neither created the hazard
nor had employees exposed to the hazard, it cannot be found liable for the violation. Summit
argues that the multi-employer work site doctrine is invalid and that it lacked sufficient control
of the site to either prevent or abate the violation. Summit also argues it had no knowledge of the
violation.

For the reasons discussed below, it is concluded that Summit was in violation of 29
C.F.R. § 1926.404(b)(1)(ii). The citation item is affirmed, and a penalty of $1,225.00 is assessed.

Jurisdiction

Jurisdiction and coverage are stipulated. Respondent Summit admitted the following in
paragraphs 8, 9, and 10, respectively, of the its November 14, 2005 pre-hearing statement: (1)
that the Commission has jurisdiction of this matter under section 10©) of the Act, 29 U.S.C. §
659©); (2) that Respondent is an employer engaged in a business affecting interstate commerce
within the meaning of 29 U.S.C. § 652; and (3) that OSHA’s construction industry safety and
health standards, set out in Part 1926 of Title 29, are generally applicable in this case because the
work being performed at the work site falls within the definition of “construction work.”

Based on the foregoing, I find that Respondent Summit is an employer engaged in a
business affecting interstate commerce within the meaning of the Act and that the Commission
has jurisdiction of the parties and the subject matter in this case.

Background

Summit was the general contractor of the subject project, which involved the
construction of the Willows Senior Apartments, a 90-unit complex, in Lebanon, Pennsylvania.
Summit had only two employees on the job site: General Superintendent Mark Corthals and
Assistant Superintendent Garnett Cramer. Neither of these two Summit employees performed
physical labor on the project. Rather, they performed overall superintendent duties, including
“...to oversee the project, order materials, order in different subs in a timely fashion.” (Corthals
Deposition, p. 5).

Summit subcontracted the framing work to Springhill Construction (“Springhill).”
Springhill subsequently contracted with Mendoza Framing (“Mendoza”) to do the actual framing
work. Springhill had only one employee, Superintendent Corey Hill, on the job site, while
Mendoza had 10 to 12 employees on site, including Oscar Mendoza, the owner of Mendoza. (Tr.
16-18).

The parties agree that the cited portable generator, and the spider box that accompanied
it, were owned by Cleveland Brothers Equipment Rental (“Cleveland”), an equipment leasing
company located in Monada Hill, Pennsylvania.

(Tr. 152-55; Corthals Deposition, pp. 7-9). Mr.
Corthals, Summit’s superintendent, acknowledged that he contacted Cleveland’s office and
ordered the generator and spider box for use at the site. Mr. Corthals also acknowledged that he
did not specifically request that Cleveland supply a generator and spider box with GFCI
capability; he assumed the rented equipment would come equipped with GFCI protection “[j]ust
from past experience...I’ve been in construction for 20 years.” (Corthals Deposition, pp. 7-9, 35).

When it was initially delivered to the work site, Mr. Corthals did not inspect the
equipment or notice whether the generator or the spider box had GFCI capability. In fact, he did
not inspect the generator or spider box at any time before the date of the OSHA inspection. At
his deposition, Mr. Corthals conceded that he knew how to inspect the rented equipment for the
presence of GFCI protection, and he stated that one reason he did not inspect the equipment or
notice whether it had GFCI capability was that he relied on his past experiences in renting such
equipment from Cleveland. (Corthals Deposition, pp. 8-16, 38-39).

On April 26, 2005, OSHA Compliance Officer (“CO”) Ralph Stoehr inspected Summit’s
work site, at which time he observed a portable electric generator connected by a 50-ampere
cable to a spider box. The spider box had a number of outlets on it, and workmen had plugged
extension cords into the outlets in order to power the electrical tools they were using at the site.
Upon inspecting the equipment, CO Stoehr determined that neither the generator nor the spider
box had GFCI protection. (Tr. 18-19, 31).

Larry Walter is the Cleveland employee who delivered the generator and spider box to
the site. He testified that when he delivered the equipment, no one inspected it or asked him if it
had GFCI protection.

Mr. Walter further testified he later learned that Summit had been cited
by OSHA, as the spider box did not have a GFCI on it; he was dispatched to deliver a GFCI-equipped spider box to the site and to retrieve the spider box that did not have GFCI protection.
(Tr. 155-60).

The Alleged Violation

The Secretary’s citation alleges that Summit committed a serious violation of 29 C.F.R.
1926.404(b)(1)(ii), as follows:

29 CFR 1926.404(b)(1)(ii): Where an assured equipment grounding program was
not utilized, receptacles were not protected with ground fault circuit interrupters
when on a two-wire, single phase portable or vehicle-mounted generator rated
more than 5kW, or where the circuit conductors of the generator were not
insulated from the generator frame and all other grounded surfaces:

(a) 605 North 12 th Street, Lebanon, Pennsylvania – The Whisperwatt electrical
generator that was supplying power to the work site was rated at 14.4KW had no
ground fault circuit interrupters on either generator or the spider box, on or about
April 26, 2005.

The cited standard, 29 C.F.R. 1926.404(b)(1)(ii), provides:

Ground-fault circuit interrupters: All 120-volt, single-phase, 15 and 20 ampere
receptacle outlets on construction sites, which are not part of the permanent
wiring of the building or structure and which are in use by employees, shall have
approved ground fault circuit interrupters for personnel protection. Receptacles
on a two-wire, single phase portable or vehicle-mounted generator rated not more
than 5kW, where the circuit conductors of the generator are insulated from the
generator frame and all other grounded surfaces, need not be protected with
ground fault circuit interrupters.

The Secretary’s Burden of Proof

The Secretary must prove her case by a preponderance of the evidence. In order to
establish a violation of an OSHA standard, the Secretary has the burden of proving: (a) the
applicability of the cited standard, (b) the employer’s noncompliance with the standard’s terms,
(c) employee access to the violative conditions, and (d) the employer’s actual or constructive
knowledge of the violation ( i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions). Atlantic Battery Co., 19 BNA OSHC
2131, 2138 (No. 90-1747, 1994).

Discussion

As noted above, Summit does not dispute that the cited standard applied to the subject
work site. The standards set out in Part 1926 of Title 29 are generally applicable in this case
because the work being performed at the job site falls within the definition of “construction
work.” See Summit’s November 14, 2005 pre-hearing statement, page 2, paragraph 10. Summit
contends, however, that it should not have been cited for the condition because it did not create
or have employees exposed to the condition. Summit also disputes it had knowledge of the
condition. In particular, Summit argues the Secretary failed to show it had actual or constructive
knowledge that a subcontractor’s workers would use power from a generator and spider box that
did not have GFCI protection.

The evidence indicates that Summit did not directly create, nor were its two on-site
employees exposed to, the hazard of electrical shock from the lack of GFCI protection on the
rented equipment. The equipment was leased from and owned by Cleveland and was delivered to
the job site by a Cleveland employee. There is no evidence that any of Summit’s own employees
ever used electrical power from the rented equipment or that any of Summit’s own employees
ever were exposed to any electrical hazard from this same equipment. The exposed employees
worked for Mendoza, a subcontractor hired by Springhill, Summit’s subcontractor. (Tr. 17). CO
Stoehr never testified that he observed any Summit employees exposed to an electrical hazard by
using tools plugged into power supplied by the rented equipment; however, he observed
Mendoza employees using electrical power supplied by the rented equipment on April 26, 2005.
(Tr. 48-49).

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

Summit challenges the multi-employer work site doctrine and has moved for declaratory
relief, asserting that there is no basis in the Act and regulations for the doctrine.

However, since
the doctrine is based on Commission precedent, it is not appropriate for a Commission judge to
engage in such declaratory relief. In addition, the Commission has discussed the basis for the
doctrine and has already rejected many of the arguments raised by Summit. See, e.g., Access
Equip. Sys., Inc. , 18 BNA OSHC 1718, 1723-1724 (No. 95-1449, 1999).

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

In this case, Summit’s home office is located in Jacksonville, Florida, and the work site
at issue was in Pennsylvania. These states are located in the Eleventh and Third Circuits,
respectively, where this case could be appealed.

The Third and the Eleventh Circuits have not
had an opportunity to rule on the doctrine. While several employers have argued the Eleventh
Circuit has rejected the multi-employer work site doctrine based on earlier Fifth Circuit case law,
the Commission has ruled otherwise. McDevitt St. Bovis, Inc., 19 BNA OSHC 1108, 1111-1112
(No. 97-1918, 2000) (former Fifth Circuit precedent rejecting the multi-employer work site
doctrine does not preclude application of the Commission’s precedent regarding the doctrine in
the Eleventh Circuit). Additionally, Summit could appeal to the D. C. Circuit, which, although it
has questioned the doctrine’s validity in a manufacturing plant, has not specifically rejected the
doctrine. IBP, Inc. v. Herman , 144 F.3d 861 (D.C. Cir. 1998).

Thus, the multi-employer work
site doctrine is still viable before the Commission and the relevant circuit courts. McDevitt St.
Bovis, Inc., 19 BNA OSHC at 1111-1112.

Summit further asserts that OSHA’s Directive CPL 2-0.124, relating to the doctrine and
issued by the Secretary on December 10, 1999, is not enforceable because it is contrary to
OSHA’s published regulation at 29 C.F.R. § 1910.12. Section 1910.12(a) provides, in pertinent
part, that “[e]ach employer shall protect the employment and places of employment of each of
his employees engaged in construction work by complying with the appropriate standards
prescribed in this paragraph.” (Emphasis added). Summit argues that because section 1910.12(a)
places safety responsibility on the employer for its own employees engaged in construction
work, the above directive, which permits citing a non-exposing and non-creating employer, is
unenforceable.

Summit’s argument is rejected. In deciding this case, it is applicable Commission
precedent, not an internal OSHA guideline, that determines whether Summit, as the general
contractor, is responsible for the alleged violation. The Commission does not consider an OSHA
CPL or other internal directive as binding on the Commission and looks to such documents only
as an aid in resolving interpretations under the Act. The directive set out above does not confer
procedural or substantive rights on employers and does not have the force and effect of law.
Drexel Chem. Co. , 17 BNA OSHC 1908, 1910, n.3 (No. 94-1460, 1997). In any case, Summit’s
reading of section 1910.12 is too narrow, and I conclude that that section does not prohibit
application of an employer’s safety responsibility to employees of other employers.

Turning to Summit’s control of the work site, Summit’s own general superintendent,
Mark Corthals, conceded that as superintendent, his job was “...to oversee the project, order
materials, order in different subs in a timely fashion.” (Corthals Deposition, p. 5). Thus, Mr.
Corthals, on behalf of Summit, appears to have exercised supreme authority over, and control at,
the job site. The record does not disclose any other person on the site who exercised veto
authority over the management decisions of Mr. Corthals.

A related issue is whether Summit had sufficient supervisory authority and control of the
work site to prevent or detect and abate the condition which exposed a subcontractor’s
employees to electrical hazards. As discussed supra , to determine whether a general contractor is
a controlling employer for purposes of multi-employer responsibility, the general contractor
must be in a position to prevent or correct a violation or to require another employer to prevent
or correct the violation. Such control may be in the form of an explicit or implicit contract right
to require another employer to adhere to safety requirements and to correct violations the
controlling employer discovers.

Summit maintains that it is company policy not to be responsible for the safety of a
subcontractor’s employees or for any OSHA requirements placed on subcontractors. This policy
is reflected in Summit’s contractual agreement with Springhill. (GX-16, Attach. A, ¶ 4).
Summit’s subcontract with Springhill provides that:

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

Regardless of its stated company policy or its written agreements with subcontractors,
however, Summit cannot contract out its overarching responsibility for work site safety; the
Commission has specifically held, in fact, that an employer cannot contract away its
responsibilities under the Act. Pride Oil Well Serv. , 15 BNA OSHC 1809 (No. 87-692, 1992).

As noted, Summit contracted with subcontractor Springhill to perform the framing work
on the apartment complex site. In so doing, Summit used its standard subcontract agreement
form, which it required all subcontractors to sign. (GX-16). The contract with Springhill, GX-16,
establishes Summit’s control over the safety of the subcontractor’s employees. In Article 6 of the
contract with Springhill, the pertinent language includes the following:

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

In addition to the above, Summit required the subcontractor to “comply with all laws,
ordinances, rules, regulations and orders of any public authority bearing on the performance of
the Work.” (GX-16, Art. 9). The contract also required Springhill to warrant and guarantee that
all of its work would be “in compliance with all federal, state and local codes and requirements.”
(GX-16, Art. 15). Although the contract attempts to place responsibility for compliance with the
Act on the subcontractor, the subcontractor is required to hold Summit harmless against any
liability, including the assessment of OSHA fines and legal costs. (GX-16, Art. 13; Attach. A, ¶
4). Under the contract, Summit was to be reimbursed for fines assessed and costs incurred due to
the subcontractor’s failure to comply with safety requirements, and Summit had the authority to
deduct OSHA fines and costs from the contract amount by change order. Id .

Further, other provisions of the contract show Summit’s control over the safety of the
subcontractor’s employees. Specifically, GX-16 provided that the subcontractor could not itself
subcontract without the prior written consent of Summit, and Summit had sole discretion on
whether to approve a subcontractor’s subcontractor. Also, subcontractors were required to keep
their work areas clean and orderly subject to Summit’s approval. The contract required
Springhill to have on site at all times a “competent superintendent and necessary assistants all
approved by Summit,” one of which had to be able to speak English. (GX-16, Art. 7-8, 22;
Attach. A, ¶¶ 17, 33, 45).

Moreover, Summit’s control over Springhill’s work site is addressed in paragraph 5 of
Attachment A to the contract, which provides:

All parties hereby agree that control of the Work Schedule, use of the site and
coordination of all on-site personnel will be performed under the complete
direction of CONTRACTOR’s supervisory staff. CONTRACTOR may enforce
upon SUBCONTRACTOR any of the following actions in order to expedite or
coordinate the work. However, CONTRACTOR does not assume any liability for
delays to SUBCONTRACTOR or third parties in connection with coordination of
on-site personnel. These actions include, but are not limited to, the following:

A)Designated storage, designated unloading and parking areas.

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

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

D)Temporarily or permanently bar specific personnel from the site.

Listed below is a partial list of reasons to deny a person access to the project.

1)Drug or alcohol use

2)Fighting, possession of weapons

3)Theft

4)Harassment of anyone on or off the project

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

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

Summit’s authority, explicitly granted by a combination of contract provisions, is broad
enough to necessarily involve subcontractor employees’ safety. Summit had authority over the
subcontractor’s actions as well as authority over conditions affecting general safety on the work
site. The authority granted Summit mirrored how Summit actually controlled the project. In
considering the plain language found within the four corners of the Springhill contract, it is
abundantly clear that Summit retained sufficient authority and control over the work site and the
safety of all employees working at the site to be held responsible for the alleged violation. In this
regard, the Commission considers supervisory authority and control sufficient where the general
contractor has specific authority to demand a subcontractor’s compliance with safety
requirements, to stop a contractor’s work for failure to observe safety precautions, and to remove
a contractor from the work site. McDevitt St. Bovis, Inc. , 19 BNA OSHC at 1110. Summit held
this control over Springhill and, by the contract terms, any of Springhill’s subcontractors.

Summit’s claim that it had only a limited ability to require a subcontractor to correct
safety violations is disingenuous. Ten to twelve Mendoza employees were working on the
project on April 26, 2005, and Mark Corthals, Summit’s project superintendent, was present on
the site. (Tr. 17). Mr. Corthals inspected the site daily to ensure progress and quality of work,
and he kept his superiors informed of the construction progress; Summit thus kept track of the
subcontractors’ activities on the site. Through Mr. Corthals, Summit had the power to hire and
fire subcontractors, to control the sequencing of the work, and to tell subcontractors when to start
and finish their work. (GX-16, Art. 11-12, 14-15). The subcontract form which Summit drafted,
and required subcontractors to sign, retained Summit’s authority to terminate, suspend or
withhold contract payments from any subcontractor who failed to abide by its directions. (GX-16, Art. 14). Summit, not the subcontractors, dictated the terms of the subcontract and what
occurred on the work site.

As a general contractor, Summit held a unique position at the site. The subcontract
agreement provided Summit multiple methods to enforce any subcontractor’s compliance with
OSHA requirements. Summit chose its own subcontractors, and approved the sub-subcontractors, for the project; it also controlled scheduling of the work, and Summit could
enforce penalties or ultimately terminate the subcontract if the subcontractor failed to meet its
schedule. Id . Summit had the right to terminate the Springhill contract for convenience or for
cause if Springhill failed to “perform the Work in Accordance with the Contract Documents,”
disregarded “Laws, Codes or Regulations of any public body having jurisdiction,” or “otherwise
violates in any way provisions of the Contract Documents.” Id . This included the power to fire a
subcontractor for violations of OSHA regulations. (GX-16, Art. 14b-2). Although termination of
a subcontractor could cause serious problems with the project’s scheduling, Summit nevertheless
had the contractual right to exercise that authority when necessary. Summit also had the right to
exclude any subcontractor from the job and to take possession of the work (GX-16, Art. 14;
Attach. A, ¶ 5). Summit could temporarily or permanently bar specific personnel of any
subcontractor from the site for failure to cooperate with Summit’s supervisors; it also retained
the authority to suspend the subcontractor for not more than 90 days without cause. Id . The
contract set out other methods to enforce a subcontractor’s compliance with OSHA regulations;
for example, Summit had the right to retain 10 percent of the contract amount until a
subcontractor satisfied all of its contractual obligations. (GX-16, Art. 3(d)).

Summit maintains that the ultimate responsibility for electrical safety at its work site,
with respect to the generator and spider box, rested with Cleveland. Summit asserts that “the
leasing agent clearly knew GFCI was required.” (Resp. Brief, p. 14). Alternatively, Summit
believes that the standard imposed a duty upon Mendoza, Springhill’s subcontractor, to inspect
the generator and spider box that Summit’s superintendent rented from Cleveland. (Resp. Brief,
pp. 6-7). However, whatever the responsibility that Cleveland and Mendoza may have had with
respect to assuring that equipment with GFCI protection was provided at the site, such
responsibility does not absolve Summit of its own responsibility for safety at the site. Despite its
control and authority over all of the workers on the job site, and notwithstanding its
responsibility for the safety of those workers, Summit failed to exercise reasonable care in
assuring that the rented generator and spider box had GFCI protection. Mr. Corthals, Summit’s
on-site superintendent, observed the delivery of the generator and spider box, but he made to no
effort to inspect the equipment; rather, he simply assumed it was GFCI-equipped. (Corthals
Deposition, pp. 8, 12, 38-39).

As noted supra , the Commission considers supervisory authority and control sufficient
where the general contractor has specific authority to demand a subcontractor’s compliance with
safety requirements, to stop a contractor’s work for failure to observe safety precautions, and to
remove a contractor from the work site. McDevitt Street Bovis, Inc. , 19 BNA OSHC at 1110.
Summit held this control over Springhill, and, by privity of contract, over any of Springhill’s
subcontractors. Based on Commission precedent and the evidence of record, I find that the
Secretary’s citing of Summit in this matter was appropriate.

I further find that the Secretary has established that Summit had knowledge of the cited
condition. It is clear that Summit did not have actual knowledge of the violative condition, and
Mr. Corthals specifically testified that he did not; he also testified that it is not readily apparent
whether spider boxes have GFCI protection and that the way to determine if they do is to lift up
the outlet covers and see if GFCI’s are present. (Tr. 9-12,16-17, 39). Constructive knowledge,
however, can be established by showing that the employer could have known of the violative
condition with the exercise of reasonable diligence. The constructive knowledge of a supervisor
of the employer can be imputed to the employer. See, e.g., Pride Oil Well Service, 15 BNA
OSHC 1809 (No. 87-692, 1992), and cases cited therein.

The Secretary contends that with the exercise of reasonable diligence, Summit could
have known that the rented equipment did not have GFCI protection. I agree, and in this regard I
note the Commission’s holding that an employer “must make a reasonable effort to anticipate the
particular hazards to which its employees may be exposed in the course of their scheduled
work.”

Automatic Sprinkler Corp. of America, 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980).
In my view, reasonable diligence in this case would have been for Mr. Corthals to have
conducted a cursory inspection of the rented generator and spider box upon the delivery of the
equipment to the site or later on that day. (Tr.12, 38-39). In addition, Mr. Corthals and his
assistant superintendent were responsible for making daily walks of the site to inspect the
progress of the construction work; they apparently walked past the generator and spider box on
any number of occasions, at which time it could easily have been determined whether the
equipment had GFCI capability.

(Tr. 12-15, 39-40). They did not do so, and, in light of the
record and the Commission precedent set out supra , Summit was in violation of the cited
standard. Item 1 of Serious Citation 1 is accordingly affirmed.

Serious Classification

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

Summit’s violation of section 1926.404(b)(1)(ii) is properly classified as serious.
Summit’s on-site superintendent, Mark Corthals, admitted that he had over 20 years in the
construction industry. Further, Summit admits that its on-site superintendent did not inspect the
generator or the spider box, both of which he rented from Cleveland.(GX-5, Interrog. No. 6, pp.
3-4; Interrog. No. 13, pp. 6-7; Interrog. No. 15, p. 7). Employees of Mendoza were clearly
exposed to the hazard of electrical shock due to the lack of GFCI protection as they operated
their power tools, and such a hazard could cause serious physical harm or possibly death.

Penalty Determination

I have carefully considered the Secretary’s penalty calculations and adjustment factors.
In determining an appropriate penalty, the Commission must consider the size of the employer’s
business, the history of the employer’s previous violations, the employer’s good faith, and the
gravity of the violation. Taking all of these factors into account, I find that the Secretary’s
proposed penalty of $1,225.00 is appropriate. The proposed penalty is therefore assessed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

ORDER

Based upon the foregoing decision, Item 1 of Citation 1, alleging a serious violation of 29
C.F.R. § 1926.404(b)(1)(ii), is AFFIRMED, and a penalty of $1,225.00 is assessed.

/s/

JOHN H. SCHUMACHER

Judge, OSHRC

Dated: May 30, 2006

Washington, D.C.