Solis v. Summit Contractors, Inc.

• Decision Date: 26 February 2009
• Docket Number: No. 07-2191.,07-2191.
• Parties: Hilda SOLIS, Secretary of Labor, United States Department of Labor,<SMALL><SUP>1</SUP></SMALL> Petitioner, v. SUMMIT CONTRACTORS, INC., Respondent, Occupational Safety and Health Review Commission, Nominal Respondent. Building and Construction Trades Department, AFL-CIO; National Construction Alliance, Amici on Behalf of Petitioner, National Association of Home Builders; Associated General Contractors of America; Associated Builders and Contractors; National Federation of Independent Businesses Legal Foundation; Contractors' Association of Greater New York; Texas Association of Builders; Greater Houston Builders Association, Amici on Behalf of Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

558 F.3d 815

Hilda SOLIS, Secretary of Labor, United States Department of Labor,¹ Petitioner, v. SUMMIT CONTRACTORS, INC., Respondent, Occupational Safety and Health Review Commission, Nominal Respondent.

Building and Construction Trades Department, AFL-CIO; National Construction Alliance, Amici on Behalf of Petitioner,

National Association of Home Builders; Associated General Contractors of America; Associated Builders and Contractors; National Federation of Independent Businesses Legal Foundation; Contractors' Association of Greater New York; Texas Association of Builders; Greater Houston Builders Association, Amici on Behalf of Respondent.

No. 07-2191.

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2008.

Filed: February 26, 2009.

Michael Patrick Doyle, argued, Washington, DC, for petitioner.

Victoria Louise Bor, argued, Washington, DC, for Amici on Behalf of Petitioner Building and Construction Trades Department AFL-CIO, and National Construction Alliance.

Robert E. Rader, Jr., argued, Dallas, TX, for respondent.

Arthur Grushkow Sapper, argued, Robert C. Gombar and James A. Lastowka, on the brief, Washington, DC, for Amici on Behalf of Respondent Associated General Contractors of America, National Association of Home Builders, Associated Builders and Contractors, National Federation of Independent Businesses Legal Foundation, Contractors' Association of Greater New York, Texas Association of Builders, and Greater Houston Builders Association.

Before BYE, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

The Occupational Safety and Health Review Commission ("OSHRC") held that the Secretary of Labor's ("Secretary") multi-employer worksite policy for "controlling" employers ("controlling employer citation policy") violated agency regulation 29 C.F.R. § 1910.12(a). The controlling employer citation policy provides that the Occupational Safety and Health Administration ("OSHA") may issue citations to general contractors at construction sites who have the ability to prevent or abate hazardous conditions created by subcontractors through the reasonable exercise of supervisory authority regardless of whether the general contractor created the hazard ("creating employer citation policy") or whether the general contractor's own employees were exposed to the hazard ("exposing employer citation policy"). The Secretary filed a petition for review. We grant the petition, vacate OSHRC's order and remand for further proceedings.

I. BACKGROUND

Because the development of the controlling employer citation policy provides the framework and context for this case, we start with a historical review of the policy before detailing the relevant factual background.

A. The Development of the Controlling Employer Citation Policy

Congress enacted the Occupational Safety and Health Act of 1970 ("OSH Act") to "establish[] a comprehensive regulatory scheme designed `to assure so far as possible . . . safe and healthful working conditions' for `every working man and woman in the Nation.'" Martin v. OSHRC, 499 U.S. 144, 147, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (quoting 29 U.S.C. § 651(b)). The OSH Act assigns distinct regulatory tasks to two different administrative actors: the Secretary and OSHRC. Id. The Secretary, through OSHA, creates and enforces workplace health and safety standards. Id.; see Delegation of Authority and Assignment of Responsibilities for Occupational Safety and Health Programs, 48 Fed.Reg. 35,736 (Aug. 5, 1983) (delegating authority to OSHA). If the Secretary determines that an employer failed to comply with such a standard, the Secretary may issue a citation and assess a monetary penalty. 29 U.S.C. §§ 658-659, 666; Martin, 499 U.S. at 147, 111 S.Ct. 1171. OSHRC carries out the adjudicatory functions of the OSH Act. 29 U.S.C. § 651(b)(3); Martin, 499 U.S. at 147, 111 S.Ct. 1171.

The OSH Act describes an employer's duties as follows:

(a) Each Employer—

(1) 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;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

29 U.S.C. § 654. Subsection (a)(1) creates a general duty running only to an employer's own employees, while subsection (a)(2) creates a specific duty to comply with standards for the good of all employees on a multi-employer worksite. See Marshall v. Knutson Constr. Co., 566 F.2d 596, 599-600 (8th Cir.1977); United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 982-83 (7th Cir.1999); Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799, 803-04 (6th Cir.1984); Brennan v. OSHRC, 513 F.2d 1032, 1037-38 (2d Cir.1975).

Prior to the OSH Act, the Secretary had promulgated health and safety standards for construction sites for federally funded and federally assisted projects under the Construction Safety Act of 1969. 40 U.S.C. § 333, incorporated into 40 U.S.C. §§ 3704, 3705. As part of OSHA's inception, Congress authorized the Secretary to adopt numerous preexisting federal standards, including those of the Construction Safety Act, as OSHA standards without notice-and-comment rulemaking during a period of two years. 29 U.S.C. § 655(a); see 29 C.F.R. §§ 1910.12-1910.16 (Sections 1910.13-1910.15 have been merged into a single section, § 1910.15, see 58 Fed.Reg. 35,306, 35,306 (June 30, 1993).). In May 1971, the Secretary used his authority to adopt these established construction standards as OSHA standards when he promulgated 29 C.F.R. § 1910.12(a), the regulation at issue in this case, which provides:

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

29 C.F.R. § 1910.12(a); see 29 C.F.R. §§ 1910.13-1910.16 (adopting other preexisting federal standards).

Nine days before the Secretary issued this regulation, OSHA published its first Field Operations Manual. This manual established the Secretary's multi-employer worksite policy, a policy that indicates which employers at a multi-employer construction site OSHA could cite for violations. According to this multi-employer worksite policy, OSHA may cite employers who exposed their own employees to hazardous conditions or who created a hazardous condition "endangering employees (whether his own or those of another employer) . . . ." OSHA, Field Operations Manual ¶ 10, at VII-6-8 (May 20, 1971). Hence, 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.²

Initially, OSHRC narrowly construed the multi-employer worksite policy. In City Wide Tuckpointing Serv. Co., OSHRC held that the Secretary could not issue a citation to a subcontractor who created a hazard but whose own employees were not exposed to or affected by the hazard. 3 OSAHRC 194, 195-96, 201 ¶ 6 (1973). In Gilles & Cotting, Inc., a scaffold used by a subcontractor had collapsed and killed two of the subcontractor's employees. 4 OSAHRC 1080, 1080 (1973). None of the employees of the general contractor, Gilles & Cotting, Inc., used or was affected by the scaffold. Nevertheless, on January 29, 1972, the Secretary issued Gilles & Cotting a citation "because as general contractor it had control of the job site. . . ." Id. at 1081. This was the first time the Secretary issued a citation based on the controlling employer theory. On review, OSHRC found that Congress intended that the obligations of 29 U.S.C. § 654(a) were "predicated upon the existence of an employment relationship" because § 654(a) imposes duties only on "each employer." Id. at 1081-82. Thus, OSHRC held that an employer is responsible for the safety and health of only those employees who work for the employer. Because Gilles & Cotting's own employees were not directly affected by the scaffold violation, OSHRC vacated the citation. Other OSHRC cases reaffirmed the City Wide and Gilles decisions "that the intent of the [OSH] Act is to place responsibility for maintaining safe working conditions upon those employers who have endangered [their own] employees. . . ." Hawkins Constr. Co., 8 OSAHRC 569, 570 (1974); accord Martin Iron Works, Inc., 9 OSAHRC 695 (1974); HRH Constr. Corp., 8 OSAHRC 841 (1974).

By 1975, two federal courts of appeals began to question these OSHRC decisions. For example, in Brennan v. OSHRC, the Second Circuit rejected OSHRC's interpretation of § 654(a) and stated that § 654(a)(2) was "in no way limited to situations where a violation of a standard is linked to exposure of his employees to the hazard." 513 F.2d at 1038. There, the court held that § 654(a)(2) permitted the Secretary to issue citations based on the controlling employer and creating employer citation policies, rejecting the prohibition imposed on these policies by City Wide and Gilles. Id. Likewise, in Anning-Johnson Co. v. OSHRC, the Seventh Circuit noted in dicta that: "[a]lthough it is not necessary for a decision in the present case, . . . we are not at all sure that a general contractor, who has no employees of his own exposed to a cited violation is necessarily excused from liability under the [OSH] Act." 516 F.2d 1081, 1091 n. 21 (7th Cir.1975).

In light of these decisions, OSHRC retreated from its position in City Wide and Gilles. See Anning-Johnson Co., 4 BNA OSHC 1193, 1197, 1975-1976 CCH OSHD ¶ 20,690 (O.S.H.R.C. May 12, 1976) ("We find ourselves in general agreement with the principles enunciated in the cogent...