442 F. App'x 570
D.C. Cir.2011Background
- OSHA issued a citation to Summit Contractors, Inc. on May 5, 2005 for a generator and spider box lacking GFCI at a Summit job site.
- Summit was the general contractor and its supervisor ordered the equipment from a rental company.
- Neither of Summit’s two onsite employees was exposed to the hazard.
- The ALJ and the OSHRC affirmed the citation.
- The Commission held Summit was a controlling and creating employer, justifying liability despite the absence of Summit employees’ exposure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| APA notice-and-comment applicability of the Multi-Employer Citation Policy | Summit argues the policy violated APA § 553 by not undergoing notice and comment. | OSHA policy is a general enforcement position exempt from notice and comment. | Policy exempt; enforcement based on longstanding precedent, not the policy itself. |
| Constitution of multi-employer liability under OSH Act § 4(b)(4) | Summit contends multi-employer liability risks creating new common-law duties. | Liability arises under the OSH Act, not implied common-law duties; § 4(b)(4) does not bar it. | No barrier under § 4(b)(4) to multi-employer liability as applied here. |
| Knowledge requirement for liability (actual or constructive) | Summit argues it lacked knowledge of the violation. | Knowledge can be imputed via reasonable diligence and supervisor awareness. | Substantial evidence supports knowledge through reasonable diligence and supervisor actions. |
Key Cases Cited
- Syncor Int’l Corp. v. Shalala, 127 F.3d 90 (D.C.Cir.1997) (APA notice-and-comment exemption for general policies)
- Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C.Cir.1986) (general policy guidance exempt from notice and comment)
- NLRB v. Bell Aerospace Co., 416 U.S. 267 (1984) (agency enforcement authority to impose liability through adjudication)
- Martin v. OSHRC, 499 U.S. 144 (1991) (OSH Act liability standards in adjudication)
- AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 70 (D.C.Cir.2004) (knowledge construct for OSH Act violations)
- A.E. Staley Mfg. Co. v. Sec’y of Labor, 295 F.3d 1341 (D.C.Cir.2002) (supervisor knowledge imputed to employer)