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    OSHA policy upheld

    April 1, 2009

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    Appeals court reverses review commission's ruling in Summit construction case

    By Kyle W. Morrison, associate editor

    A recent court decision has upheld an OSHA policy to cite a general contractor for violations committed by a subcontractor.

    The agency’s multi-employer citation policy applies to worksites that may have more than one employer that could be cited for a standard violation. On Feb. 26, a three-judge panel in the 8th Circuit U.S. Court of Appeals issued a 2-1 decision that agreed with the secretary of labor’s interpretation of the policy as it pertains to construction contractors and subcontractors.

    In June 2003, Jacksonville, FL-based Summit Con­tractors Inc. operated as the prime contractor in the construction of a Little Rock, AR, dormitory. An OSHA compliance safety and health officer observed that employees of a subcontractor, All Phase Construction Inc., were not protected against a fall from a scaffold while performing masonry work – a violation of 29 CFR 1926.451(g)(1)(vii).

    All Phase Construction, which at the time was located in Loganville, GA, was cited for creating the hazard and for operating as the employer whose employees were exposed to the hazard. Because Summit was considered a “controlling” employer under OSHA’s multi-employer worksite policy, the company also was cited for the hazard, despite none of its employees being directly exposed to it.

    Summit contested the citation, arguing that a specific standard – 1910.12(a) – suggests an employer only has to protect its own employees and not those of any subcontractor. As such, Summit said, the secretary of labor is prevented from citing a controlling employer whose employees were not exposed to the hazard; the secretary of labor disagreed.

    Summit’s argument was accepted by the Occupational Safety and Health Review Commission, which in 2004 vacated the prime contractor’s citation. Then-Secretary of Labor Elaine L. Chao filed a petition for review with the Court of Appeals in 2007.

    Appellate court ruling

    This past February – more than a year after final arguments were made – the appellate court sided with Secretary of Labor Hilda L. Solis (who was substituted as the petitioner once sworn into office) and vacated OSHRC’s order. “We find that the plain language of 1910.12(a) does not preclude the Secretary’s controlling employer citation policy,” Judge Raymond W. Gruender wrote in the court’s decision.

    Gruender described in great detail how the grammatical structure of the standard’s “plain language” makes clear that:

    • An employer shall protect his or her employees
      The standards
    • An employer shall protect the places of employment where the employer actually has employees

    Although some in the industry suggested upholding OSHRC’s decision would reverse decades of OSHA precedent, the ruling to vacate the commission’s decision maintains the status quo. “The result is that we can continue applying our multi-employer policy,” Noah Connell, deputy director for OSHA’s Directorate of Construction, said in an interview with Safety+Health.

    But that policy carries its own problems, Appellate Court Judge C. Arlen Beam pointed out in dissension. “What the court fails to note … is that it is impossible under the OSH Act for even the most sophisticated general contractor to recognize violations by specialized subcontractors, many of whom are larger employers than the general or prime contractor,” Beam wrote.

    Jerry Howard, executive vice president of the Washington-based National Association of Home Buil­ders, echoed that concern in a statement. “OSHA’s multi-employer citation policy is bad public policy because it imposes undue and unpredictable burdens on home builders and creates confusion at the worksite over who is responsible for the safety of workers,” he said.

    The court conceded such a policy places an “enormous responsibility” on the general contractor, but said those concerns rest with Congress and the secretary of labor to address. Connell stressed that the existing policy acknow­ledges expertise differences between a prime contractor and a subcontractor who exposed employees to a hazard.

    “That is fairly specific in terms of what is expected of a controlling employer and it’s fairly direct in indicating that, for example, the controlling employer is not strictly liable for everything that may have gone wrong as a result of actions or inactions by an exposing employer,” Connell said.

    Although the court’s ruling vacates OSHRC’s reversal, it does not necessarily reinstate the citation. Summit still has options left, including appealing the appellate court’s decision to the Supreme Court. The case will also be remanded back to OSHRC for another look at Summit’s appeal of the citation. In that instance, the commission would have to look at the case anew but take into account the appellate court’s recent ruling that 1910.12(a) does not exempt the controlling employer citation policy.

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