Solis v. Summit Contractors, Inc.Solis v. Summit Contractors, Inc.
Lead Opinion
The Occupational Safety and Health Review Commission (“OSHRC”) held that
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,
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.
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.
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.
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.
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 Gilíes & 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, Gilíes & Cotting, Inc., used or was affected by the scaffold. Nevertheless, on January 29, 1972, the Secretary issued Gilíes & 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
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
In light of these decisions, OSHRC retreated from its position in City Wide and Gilles. See Anning-Johnson Co., 4 BNA OSHC 1193, 1197,
In Anning-Johnson, OSHRC stated: [although not an issue in this case, we are constrained to mention this Commission’s position with respect to the third possible situation. Under this third set of circumstances, we are dealing with (1) a contractor that has either created a hazard or controls a hazardous condition and (2) the only employees having access to the hazard are those of different contractors engaged in the common undertaking. We consider such a contractor to have a duty under [29 U.S.C. § 654(a)(2) ] to comply fully with the standards.... Furthermore, we note that typically a general contractor on a multiple employer project possesses sufficient control over the entire worksite to give rise to a duty under [§ 654(a)(2) ] of the Act either to comply fully with the standards or to take the necessary steps to assure compliance.
In Grossman Steel, OSHRC asserted: the general contractor normally has responsibility to assure that the other contractors fulfill their obligations with respect to employee safety which affect the entire site. The general contractor is well situated to obtain abatement of hazards, either through its own resources or through its supervisory role with respect to other contractors. It is therefore reasonable to expect the general contractor to assure compliance with the standards insofar as all employees on the site are affected. Thus, we will hold the general contractor responsible for violations it could reasonably have been expected to prevent or abate by reason of its supervisory capacity.
Throughout this period, the Secretary continued to address the multi-employer
After 1976, the Secretary occasionally altered the multi-employer worksite policy. 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 Inspection Reference Manual OSHA Instruction CPL 2.103 (Dec. 10, 1999).
Since Anning-Johnson and Grossman Steel, general contractors have challenged the Secretary’s authority to cite them for violations when their own employees are not exposed to any hazards related to the violations. See, e.g., Universal Constr. Co., Inc. v. OSHRC,
Recently, the United States Court of Appeals for the District of Columbia Circuit has questioned whether the Secretary’s controlling employer citation policy violates OSHA’s regulatory framework. See Anthony Crane Rental, Inc. v. Reich,
B. Factual Background
In this case, Summit Contractors, Inc. (“Summit”) was the general contractor for the construction of a college dormitory in Little Rock, Arkansas. Because Summit had subcontracted the entire project, it had only four employees at the construction site: a project superintendent and three assistant superintendents. Summit subcontracted the exterior brick masonry work to All Phase Construction, Inc. (“All Phase”). On two or three separate occasions, Summit’s project superintendent had observed All Phase employees operating without personal fall protection on scaffolds that lacked guardrails. The project superintendent had advised All Phase to correct these problems. However, when All Phase’s employees moved the scaffold to another location, they would again work without fall protection and without guardrails.
in June 2003, an OSHA Compliance Safety and Health Officer observed All Phase employees working on scaffolds over ten feet above the ground without fall protection or guardrails in violation of
Summit contested the citation, and the matter was referred to an Administrative Law Judge (“ALJ”). Summit argued that
OSHRC granted review and issued three separate opinions. Although one of these opinions agreed with the ALJ, the other two held that
II. DISCUSSION
A. Standard of Review
We will uphold OSHRC’s factual findings if they are “supported by substantial evidence on the record considered as a whole.”
“In situations in which the meaning of [regulatory] language is not free from doubt, the reviewing court should give effect to the agency’s interpretation so long as it is reasonable, that is, so long as the interpretation sensibly conforms to the purpose and wording of the regulations.” Martin,
B. Regulatory Interpretation
In examining the meaning of
The first sentence of
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.
In this case, the prepositional phrase “of each of his employees” serves as an adjective that narrows the meaning of “employment” and “places of employment.” See id. at 188 § 5.166 (“A prepositional phrase can be used as a noun, ... an adverb, ... or an adjective ....”); id. at 165 § 5.66 (discussing limiting adjectives). Because the term “of each of his employees” limits the term “employment,” part (1) provides that an employer shall protect only the employment of his employees. Stated differently, part (1) provides that an employer shall protect only his employees.
Summit contends that the regulation requires the employer to protect only “his employees.” Because the creating
Even if we were to find Summit’s interpretation to be reasonable and that
First, the Secretary did not initially interpret
Nonetheless, Summit argues that the Secretary did not initially intend
Second, we disagree with Summit’s contention that the Secretary has not consistently applied her interpretation of
We find that the plain language of
C. Alternative Arguments
Summit argues that the controlling employer citation policy is premised on an expansive definition of employer and employee in violation of the Supreme Court’s direction in Nationwide Mutual Insurance v. Darden,
Summit misconstrues Anning-Johnson and Grossman Steel. Nothing in those opinions remotely indicates that OSHRC relied on a broad definition of employer or employee. Rather, OSHRC premised the controlling employer citation policy upon
Summit also argues that the Secretary has no legal authority for the controlling employer citation policy. However, we held in Knutson that
Nonetheless, Summit raises a novel argument asserting that
This argument contains the same defect as Summit’s argument with respect to
Alternatively, Summit contends that the controlling employer citation policy violates
Finally, Summit and the amici argue that the controlling employer citation policy is an ill-conceived policy that is counterproductive to the goals of the OSH Act. It is uncertain what potential benefits are gained in citing both a subcontractor and a general contractor for a single OSHA violation when the general contractor had informed the subcontractor of the violation on prior occasions. Although a general contractor plays a role in setting safety standards at worksites, OSHA is an intricate and function-specific regulatory regime such that each employer on a worksite may be uniquely situated to know of the very specific regulatory requirements affecting its particular trade. Therefore, the controlling employer citation policy places an enormous responsibility on a general contractor to monitor all employees and all aspects of a worksite. However, these policy concerns should be addressed to Congress or to the Secretary and not to the courts. See Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. -,
III. CONCLUSION
Because we conclude that OSHRC’s holding was contrary to law, we grant the Secretary’s petition, vacate OSHRC’s order and remand for further proceedings consistent with this opinion.
Notes
. Both the creating employer and the controlling employer citation policies allow OSHA to issue citations to the employer for violations that do not directly affect the employer's own employees.
. The Secretary also cited All Phase for the violation under the exposing employer cha-lion policy.
. We do not agree with the Secretary's argument that "his employees” does not mean "only his employees.” The natural reading requires us to read "his employees” as "only his employees.” Cf. Cooper Indus., Inc. v. Aviall Servs., Inc.,
. Summit contends that we should only afford the Secretary's interpretation of
. The amici on behalf of Summit contend that the Secretary could not lawfully apply the multi-employer worksite policy without first
. We also deny the amici's pending motion for leave to file a rebuttal brief to respond to the Secretary’s reply brief.
Dissenting Opinion
dissenting.
I concur in the panel majority’s (the court’s) analysis that
With regard to the last sentence of
The subject of this sentence is “each employer,” the verb is “shall protect,” and the objects are “employment” and “places of employment.” The rest of the sentence contains prepositional phrases; a preposition serves to “link[ ] an object (a noun or noun equivalent) to another word in the sentence to show the relationship between them.” Chicago Manual of Style, 187 § 5.162 (15th ed.2003). In this case, the preposition “of’ serves to link the objects, “employment” and “places of employment,” to “each of his employees.” Hence, grammatically reconstructed, the language of the regulation requires: (1) that an employer shall protect the employment of each of his employees (“part (1)”) and (2) that an employer shall protect the places of employment of each of his employees (“part (2)”).
Ante at 824 (alteration in original). I fully agree with this analysis as far as it goes. The court neglects, however, to note that the prepositional phrase “of each of his employees” is further limited by the words “engaged in construction work.”
The court then correctly states, the prepositional phrase “of each of his employees” serves as an adjective that narrows the meaning of “employment” and “places of employment.” [Chicago Manual of Style,] 188 § 5.166 (“A prepositional phrase can be used as a noun, ... an adverb, ... or an adjective ....”); id. at 165 § 5.66 (discussing limiting adjectives). Because the term “of each of his employees” limits the term “employment,” part (1) provides that an employer shall protect only the employment of his employees. Stated differently, part (1) provides that an employer shall protect only his employees. However, this is not the end of the analysis. In part (2), the term “of each of his employees” limits the term “places of employment” such that the employer shall protect the places of employment where the employer actually has employees. See Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1 , 4-5 (1st Cir.1993) (holding that the plain language of§ 1910.12(a) establishes a duty of employers to protect only those construction sites where they have employees).
Ante at 824-25 (footnote omitted).
The court then advances a puzzling and unsupported extension of regulatory intent gleaned from these words. Without further grammatic analysis or support from other language-based inferences, the court posits that
[ujnlike part (1), part (2) of the regulation does not limit the employer’s duty to protect only the employer’s own employees. Therefore, the plain language of part (2) does not preclude an employer’s duty to protect the place of employment, including others who work at the place of employment, so long as the employer also has employees at that place of employment.
Ante at 824 (emphasis added) (citation omitted). This statement is epiphytic — it draws no nourishment from the words of
The court attempts to buttress the analysis with equally unsupported interpretive exercises. The court says, for instance, “[fjirst, Summit’s interpretation [that it can be cited only for violations by its own employees] is contrary to the grammatical construction of the sentence because it requires the term ‘each of his employees’ to be the object of the sentence, rather than a prepositional phrase that modifies the actual objects of the sentence.” Ante at 825. This is incorrect; Summit’s interpretation clearly and correctly retains “of each of his employees” as an adjectival limitation on one or the other of the sentence’s objects^ — -“employment” or “places of employment.” The court then states, “[s]econd, Summit’s interpretation would make the term ‘places of employment’ redundant of the term ‘employment’ and, therefore, superfluous.” Ante at 824-25. This analysis is likewise incorrect. As properly construed there is no redundancy at all between the terms “employment” and “places of employment.” “Employment” refers to an individual’s personal involvement with his or her daily work. “Places of employment” refers to geographic locations at and around the construction site. But, the court argues, “[u]nder Summit’s interpretation, part (2) provides nothing different from or in addition to part (1); instead, it makes the term ‘places of employment’ a subset of the term ‘employment.’ ” Ante at 825. The court also states,
an employee could be exposed to a dangerous condition during the course of employment but away from the work site. However, the opposite is not true. Summit cannot provide and we cannot envision a situation where the protection of a “place of employment” will not be directly related to or encompassed by the protection of “employment.”
Ante at 825. This is also incorrect, Summit can provide easily envisioned situations that refute the court’s contention.
First, the words “engaged in construction work” will make it extremely unlikely that “employment away from the work site” will be in any way governed by
The OSH Act provides a complicated, interrelated and complex set of rules that apply to sundry work situations. Individual mastery of the OSH Act’s myriad upon myriad of details is very likely impossible. The OSH Act imposes safety regulations involving the individual worker that require, for instance, protective clothing, respirators and safety equipment of every kind. These regulations protect a particular worker’s physical being and may or may not do so in conjunction with particular places at the job site — that is, operations at discrete geographic locations on the premises.
This particular dispute is illustrative of my point. The court notes that a subcontractor’s employees were working ten feet or more above ground on scaffolding without the guardrails required by OSHA rules. The guardrail requirement is a rule directed toward the place of employment— i.e., working upon scaffolds. If the employees were spray-painting interior walls or blowing loose insulation into building spaces, OSHA rules almost certainly would require face masks, and probably, respiration protection equipment, although I concede that I have not specifically researched the applicable rules. This type of personal, individual equipment would be “protection of employment.”
Another hypothetical situation comes to mind. Assume a coal-fired furnace is being installed during construction of a new power plant, and the furnace’s burners and interior portions need to be fired up, tested, inspected and adjusted by specially trained personnel. Other employees may also be working on the furnace construction but not inside the burner area. Further assume that the OSH Act requires that these specialized workers must wear protective gear while doing their work but other employees nearby need not do so. The OSH Act regulations usually require related safety steps with regard to the furnace itself — i.e., natural gas shut-off, entry lock-out and automatic fire suppression — to prevent untoward events which may endanger all of the employer’s workers near the “place of employment,” — i.e., at the location of the new furnace. This combination of regulations would, of course, protect the specially trained personnel and the other construction employees in the vicinity of the furnace construction. In such a situation, the regulation clearly, unambiguously, separately and without redundancy, governs an employer’s employment of each specialized employee (the person regulations) and the place of employment (the place regulations) for the benefit of both groups of the employer’s employees. Thus, at the bottom line, the Secretary is simply wrong in her ambiguity argument and the Commission majority is correct that the regulation does not support “controlling” person citations such as those issued in this case.
Finally, the court discounts Summit’s argument that the Secretary’s interpretation is “counterproductive to the goals of the OSH Act.” Ante at 829. At the same time,
The court dismisses these policy quirks as concerns that “should be addressed to Congress or to the Secretary and not to the courts.” Ante at 829. Such an argument misses the main point of this appeal. The regulation authorized by Congress,
I dissent.
. In clear dicta, the Occupational Safety and Health Review Commission refers to a general contractor's duties under
. The regulation in its entirety 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.
. Although it is probably of no moment here, the court does not specify whether those employer’s employees at the place of employment the court talks about must be doing "construction work” or must be present at the time an alleged violation by another employer's employees occurs, or whether these exotic occurrences need to happen during the construction work, etc. Neither does the court attempt to define "construction work” in the analysis. For instance, were Summit’s superintendent and assistant superintendents engaged in “construction work” or merely in coordination and supervision of "construction work?”
. U.S. Census data from 2002 indicate that about 68.1 percent of residential builder establishments had four or fewer employees on payroll; and about 20.0 percent had five to nine employees on payroll. (Resp. by Amicus Curiae to Information Req. at 4, ¶ 8, August 11, 2008). Currently, NAHB builder-members have a median of four paid employees. (Supplemental Resp. by Amicus Curiae to Information Req. at 3, ¶ 9, December 10, 2008).