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SAFETY / OSHA - 09/03/10

OSHRC: Secretary of Labor v Summit Contractors, Inc:

Finding that the general contractor (GC), Summit Contractors, Inc., was both a controlling and creating employer with knowledge of the violative condition, the Occupational Safety and Health Review Commission held that a serious violation was established (under §1926.404(b)(1)) and attributable to Summit for failing to provide ground-fault circuit interrupter (GFCI) protection on two pieces of equipment the GC had ordered for use at a Lebanon, Pennsylvania, worksite (Secretary of Labor v Summit Contractors, Inc, August 19, 2010, Rogers and Attwood). The Review Commission concluded that §1910.12(a), which imposes responsibility on an employer to protect only its employees from hazards, does not preclude the imposition of OSH Act liability on a non-exposing, controlling employer on a multi-employer construction worksite, thereby aligning with the Eighth Circuit Court of Appeals decision in Solis v Summit Contractors, Inc (CCH OSHD ¶32,990, 558 F.3d 815 (8th Cir. 2009)). The Review Commission rejected Summit's two arguments: that §1910.12(a) does not apply to an employer whose own employees are not exposed to the cited condition and that the Supreme Court's decision in Nationwide Mutual Insurance Company v Darden (503 U.S. 318 (1992)), which sets forth the test for determining the existence of an employer/employee relationship, invalidates the multi-employer citation policy. Also at issue was whether the GC controlled and/or created the cited condition and whether it had knowledge of the cited condition's existence.

Agreeing with the Eighth Circuit's plain meaning analysis of §1910.12(a)that it imposes liability on employers who permit known hazards on multi-employer construction worksites, regardless of their own employees' exposurethe Review Commission noted that any other interpretation is a "myopic...analysis" of the language which should logically be construed to indicate that a duty is imposed on the GC for "all employees so long as employees of the cited employer are also present." Furthermore, the "dual obligation" imposed by §1910.12(a) is also found in the General Duty Clause (§5(a)(2)), the Review Commission noted, which is the foundation for the multi-employer citation policy. The Review Commission explained that, under the OSH Act, the Darden test applies when attempting to establish statutory coverage or when trying to determine whether an employment relationship exists between a "particular statutory employer" and a "particular worker"; however, in the instant case, the lack of an employment relationship is presumed. The Darden case addressed whether an insurance salesman was an insurance company employee for purposes of ERISA retirement benefits.

Under longstanding principles, a controlling employer may be held liable for violations of other employers at a worksite where it is in a position to exercise control and authority over other employers working at the worksite. Here, Summit, as the GC, exercised "significant control" over the worksite and was itself responsible for creating the violative condition. The evidence indicated that the Summit site superintendent walked the site twice daily and had been directed by Summit to point out violative conditions to the subcontractors working at the site. In addition, had the site superintendent ordered OSHA compliant GFCI-protected equipment, the violative condition never would have occurred. By ordering the noncompliant equipment and requiring that the subcontractors use it, Summit created employer liability. In addition, Summit's lack of work rules and training regarding the use of GFCI-protected equipment, in conjunction with the site superintendent's knowledge of the violative condition, suffices to impute constructive knowledge to Summit.

Commissioner Thompson, dissenting, would vacate the citation because §1910.12(a), applied to the Construction Standards, imposes on an employer a duty to protect only its own employees. Furthermore, the creating/controlling employer doctrines in OSHA's multi-employer citation policy do not support the cited violation where the obligation to comply with the cited standard, imposed on Summit by the General Duty clause, is "the duty to select among ground-fault circuit interruption ("GFCI") options to protect employees from the risk of electrical shock while using power tools."

The Summit Contractors cases represent a "hashing-out" of the correct interpretation of the multi-employer worksite doctrine. An April 2007 decision issued by the Review Commission (Summit Contractors, Inc, 2004-2009 CCH OSHD ¶32,888 (No. 03-1622, 2007)) effectively prohibited OSHA from issuing citations, under the multi-employer worksite doctrine, to general contractors for safety violations caused by subcontractors working at a worksite. The 2007 decision was intended to provide consistency in application for the multi-employer worksite doctrine, which has been subject to myriad interpretational changes by the Secretary of Labor since 1971 when 29 CFR 1910.12 was promulgated. In February 2009, the Eighth Circuit ruled that the Review Commission had abused its discretion by prohibiting OSHA from issuing citations under the multi-employer worksite doctrine to ''controlling employer'' general contractors for safety violations caused by subcontractors working at a worksite, where the general contractor has ''the ability to prevent or abate hazardous conditions...through the reasonable exercise of supervisory authority'' (Solis v Summit Contractors, Inc, at ¶32,990). The Review Commission drew ''a legal conclusion that was not in accordance with the law,'' the appeals court determined, in deferring to the Secretary's interpretation of §1910.12(a) as imposing on a controlling employer, under the ''controlling employer citation policy,'' responsibility for safety at the worksite ''regardless of whether the general contractor created the hazard or its" own employees were exposed to the hazard. The appeals court granted the Secretary's petition for review, vacated the Review Commission's order, and remanded the case. On remand, the Review Commission determined that the general contractor was properly cited, under the multi-employer worksite citation, for serious violative conditions it had not created and to which its employees were not exposed where the general contractor was a "controlling employer," knew of the violative conditions to which the sub-contractor's employees were exposed, and yet failed to inform the sub-contractor, so that it could abate the hazardous conditions.

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