Solis v. Summit Contractors, Inc.

GRUENDER, BYE, Before BEAM Judges. Circuit GRUENDER, Judge. Circuit Safety and Health Re- Occupational The (“OSHRC”) held that view Commission Secretary (“Secretary”) Assignment Responsibilities of Labor’s for Oc- for “con- cupational Safety Programs, and Health (“controlling employer 1983) trolling” employers 35,736 Fed.Reg. (Aug. (delegating agency regulation violated policy”) OSHA). authority If de- controlling C.F.R. comply termines that an failed to policy provides that the standard, Secretary may with such a Safety Occupational and Health Adminis- monetary issue a citation and assess a (“OSHA”) may tration issue citations 658-659, 666; §§ penalty. 29 U.S.C. Mar- general contractors at construction sites tin, 499 U.S. at S.Ct. ability prevent have the who or abate adjudicatory OSHRC carries out the func- conditions hazardous created subcon- Act. tions the OSH 29 U.S.C. through tractors the reasonable exercise 651(b)(3); Martin, 147, 499 111 U.S. authority regardless of supervisory of S.Ct. 1171. general whether contractor created The Act an employ OSH describes (“creating employer the hazard citation er’s duties as follows: policy”) general or whether the contrac- (a) Employer— Each exposed tor’s own were (1) (“exposing employer poli- hazard citation shall to each furnish of his em- cy”). Secretary petition filed a for ployees employment place and a grant petition, review. We vacate employment which are free from rec- and OSHRC’s order remand for further ognized causing hazards that are proceedings. likely are death or cause serious physical employees; harm to his I. BACKGROUND (2) comply occupational shall development Because the of the control- safety and health promul- standards ling employer policy provides citation gated chapter. under this case, framework and context for this (a)(1) 29 U.S.C. 654. Subsection creates start with a historical review of the general duty running employ to an detailing before the relevant factual back- (a)(2) er’s own employees, while subsection ground. specific duty comply creates with stan good dards for all employees on a Development A. The of the Control- multi-employer worksite. See Marshall v. ling Policy Employer Citation Co., 596, Knutson Constr. 566 F.2d 599- Congress Occupational enacted the Safe- (8th Cir.1977); 600 United States v. Pitt- (“OSH Act”) ty and Health Act of 1970 Moines, Inc., 976, Des 168 F.3d 982-83 a comprehensive regulatory “establish!] (7th Cir.1999); Teal v. E.I. DuPont de designed scheme possi- ‘to assure so far as Co., (6th 799, Nemours & 728 F.2d 803-04 ... working ble safe and healthful condi- Cir.1984); OSHRC, Brennan v. ‘every tions’ for working man and woman (2d Cir.1975). 1032, 1037-38 ” OSHRC, in the Nation.’ Martin v. Act, Secretary Prior the OSH had 144, 147, 1171, U.S. 111 S.Ct. 113 L.Ed.2d promulgated safety health and standards 651(b)). (quoting 29 U.S.C. federally construction sites for funded assigns The OSH Act regulatory distinct federally projects assisted under the tasks to two different administrative ac- Safety Construction Act of 1969. 40 Secretary tors: the and OSHRC. Id. The 333, incorporated U.S.C. Secretary, through OSHA, into U.S.C. creates and en- 3704, §§ workplace part forces health 3705. As safety incep- stan- OSHA’s Id.; tion, Delegation Authority Congress dards. see Secretary authorized the ¶ 1971). (May at VII-6-8 federal stan- Manual preexisting adopt numerous Hence, multi-employer initial dards, those of the Construction the manual’s including Act, without Safety adopted creating as OSHA standards em- during a rulemaking notice-and-comment exposing employer and the ployer 655(a); years. 29 U.S.C. of two period policies, but not (Sections §§ 1910.12-1910.16 see 29 C.F.R. policy.2 into a merged have been 1910.13-1910.15 narrowly Initially, OSHRC construed 1910.15, section, Fed.Reg. see 58 single In 1993).). (June 35,306 May In 35,306, Tuckpointing Serv. City Wide authority to used his Secretary could not held that the OSHRC construction stan- adopt these established a citation to a subcontractor who issue pro- when he dards as OSHA standards but own created a hazard whose 1910.12(a), regu- mulgated C.F.R. by the exposed were not to or affected ease, provides: which lation at issue this ¶ 195-96, hazard. 3 OSAHRC 201 6 prescribed part 1926 The standards Inc., Cotting, In & a scaf- Gilíes occupational adopted are chapter collapsed a subcontractor had fold used sec- safety and health standards under killed of the subcontractor’s em- two apply, Act and shall accord- tion 6 of the (1973). 4 OSAHRC ployees. thereof, every ing provisions to the employees general of the of the con- None employment employment place and tractor, Inc., used or was Cotting, Gilíes & in construction every employee engaged Nevertheless, on affected the scaffold. the protect Each shall work. 29, 1972, Secretary issued January employment and employment Cotting & a citation “because Gilíes employees engaged of his of each job contractor it had control of the general by complying work with construction was the first site....” Id. at 1081. This in this prescribed standards appropriate a citation based time the issued paragraph. theory. controlling employer On on 1910.12(a); see 29 C.F.R. 29 C.F.R. review, Congress that in- found OSHRC preex- (adopting §§ other 1910.13-1910.16 obligations that of 29 U.S.C. tended standards). isting federal 654(a) the exis- “predicated upon were Secretary issued days Nine before the relationship” be- of an tence published its first regulation, this OSHA 654(a) only imposes duties cause This manual Operations Field Manual. Thus, employer.” Id. at 1081-82. “each Secretary’s multi-employer established responsi- held that OSHRC a that indicates policy, safety and health of those for the ble multi-employer at a con- employers which employer. who work for employees cite for viola- struction site OSHA could employees own Cotting’s & Because Gilíes According to this tions. by the scaffold directly affected were may employers cite policy, OSHA violation, the citation. vacated OSHRC employees to haz- exposed their own who City reaffirmed the OSHRC cases Other hazard- or who created a ardous conditions intent “that the and Gilíes decisions Wide “endangering condition ous responsibility to place Act is (whether [OSH] of another em- his own or those ” working conditions OSHA, maintaining safe Operations Field ployer) .... employer's directly own do not affect creating employer and the control- 2. Both the ling employer policies OSHA to employees. allow to the for violations issue citations ¶ (O.S.H.R.C. 20,691 May who have endan- CCH OSHD upon those ” 1976). gered employees.... Haw- own] [their 569, 570 kins Constr. 8 OSAHRC In Anning-Johnson, OSHRC stated: Works, Inc., (1974); Martin Iron accord case, [although not an issue (1974); HRH Corp., OSAHRC 695 Constr. are constrained to mention this Commis- 8 OSAHRC 841 position respect sion’s with to the third By appeals two federal courts of possible situation. Under this third set these OSHRC decisions. began question (1) circumstances, dealing we are OSHRC, in Brennan v. example, For a contractor that has either created rejected Second Circuit OSHRC’s inter- hazard or controls a hazardous condition 654(a) pretation of and stated that only employees having ac- 654(a)(2) way was “in no limited to situa- cess to the hazard are those of different tions where a violation of a standard is engaged in contractors the common un- exposure linked to of his dertaking. We consider such a contrac- There, F.2d at hazard.” 513 duty tor have a under [29 U.S.C. 654(a)(2) permitted court held 654(a)(2)] comply fully with the Secretary to issue citations based on the Furthermore, standards.... we note creating employ- typically a general contractor on a policies, rejecting prohibi- er citation multiple employer possesses project suf- policies by imposed City on these ficient control over the entire worksite Likewise, Id. in An- Wide Gilíes. 654(a)(2)] give duty rise to a under [§ OSHRC, ning-Johnson Co. v. the Seventh comply fully Act either to with the “[a]lthough noted in dicta that: it Circuit necessary standards or to take the steps necessary pres- is not for decision compliance. to assure case, ent ... we are not at all sure that a 4 BNA OSHC 1199. contractor, general employees who has no Steel, In Grossman OSHRC asserted: exposed of his own to a cited violation general normally contractor has re- necessarily liability excused from under sponsibility to assure that the other con- 1081, Act.” 516 F.2d 1091 n. 21 [OSH] obligations tractors fulfill their with re- (7th Cir.1975). spect employee safety which affect decisions, In light of these OSHRC re general the entire site. The contractor position City treated from its Wide is well situated to obtain abatement of Co., 4 Anning-Johnson Gilles. See BNA hazards, either through its own re- 1197, 1193, OSHC 1975-1976 CCH OSHD through supervisory sources or its role ¶ (O.S.H.R.C. 1976) (“We 20,690 12, May respect with to other contractors. It is in general agreement find ourselves expect gen- therefore reasonable to principles cogent enunciated eral contractor compliance to assure opinions of the Second and Seventh Circuit with the standards insofar as all Appeals.”). Courts of OSHRC announced Thus, ees on the site are affected. position that a its revised contractor who general will hold the respon- contractor has either created a hazard or controls a reasonably sible for violations it could duty hazardous condition has a under expected have been to prevent or abate 654(a)(2) comply with OSHA stan supervisory capacity. reason of its if employ dards even the contractor’s own 4 BNA OSHC at 1188. ees are exposed not to the hazard. Id. at 1197-99; Throughout period, Steel & Aluminum this the Secretary Grossman 1185, 1188, 1975-1976 Corp., 4 BNA multi-employer OSHC continued to address the 1974, the 1994 version. In after OSHRC’s policy. worksite —as decisions, OSHA, al- Inspection OSHA Reference Manual City and Gilíes Field Wide (Dec. such Operations Manual 10, its Field tered 2.103 OSHA Instruction CPL in- multi-employer worksite that the 1999). citation exposing employer only cluded Anning-Johnson and Grossman Since OSHA, Manual Operations Field

policy. Steel, challenged contractors have general 1974). (Jan. 1976, 22, after April In X-14 to cite them Secretary’s authority by the and Seventh the decisions Second employees when their own are violations Circuits, Secretary sought imple- any hazards related to the exposed not for its multi- regulation ment OSHA See, e.g., violations. Universal Constr. in- would employer worksite OSHRC, 726, Inc. 182 F.3d con- creating employer and the clude the (10th Cir.1999) controlling (challenging policies. citation trolling employer policy); R.P. employer citation Carbone comment on Secretary requested public OSHRC, 815, 166 F.3d Constr. Co. v. regulation. Citation proposed such a (6th Cir.1998) (same); IBP, Inc. v. Her Multi-Employer Worksites Guidelines (D.C.Cir.1998) man, 861, 144 F.3d Notice, 41 Request for Public Comment (same); (same); Knutson, 1976). at 599 566 F.2d 17,639, 17,639-40 (Apr. Fed.Reg. (chal Moines, at 976-85 end- Pitt-Des 168 F.3d period the comment before decided May creating poli OSHRC had lenging ed on Steel, ArmingJohnson and Grossman Leasing Sec’y Inc. v. cy); Beatty Equip. Secretary to issue cita- allowed the (9th Cir.1978) (same). which Labor, 577 F.2d employer and creating on the tions based Knutson, general circuit held that a In Af- policies. controlling contractor, controlling employer, as the decisions, Secretary discon- ter these 654(a)(2) protect duty has a under through promulgate efforts to tinued his safety haz its own from rulemaking regula- an OSH Act informal engaged at the ards but all the poli- multi-employer tion for the Mele 566 F.2d at 599. But see worksite. cy. Inc., Shipyards, rine v. Avondale Secretary occasionally After (5th Cir.1981) (holding that 710-11 altered the 654(a)(2) employers’ re does not extend 1981, employer citation correcting In employees). beyond their own sponsibility It allowed to was added. OSHA policy therefore, We, found that the Secre have employer responsible citations to the issue multi- statutory authority for the tary has hazard even if its own correcting including the policy, worksite employer exposed not to the hazard. employees were citation See controlling employer OSHA, Field Manual OSHA Operations Knutson, 566 F.2d 1981). (Dec. 23, In Instruction CPL 2.49 Recently, the United States Court 1994, multi-employer policy the District of Columbia Cir- Appeals for creating employer to add the was amended questioned cuit has whether Secre- poli- controlling employer citation policy citation tary’s controlling OSHA, Inspection Field Reference cies. regulatory framework. violates OSHA’s 1994). 26, § (Sept. Manual OSHA V.C.6 Reich, Rental, Inc. v. Anthony Crane published manual was The current OSHA (D.C.Cir.1995); see also multi-employer worksite in and its IBP, Anthony In 144 F.3d at 865-66. poli- contains the same four Crane, “it in dicta that the court stated correcting em- employer, exposing cies— multi-employer controlling clear to us creating employer and ployer, with in Compliance doctrine is consistent June OSHA [worksite] Safety and Health All industry reg- construction Officer observed Secretary’s own 1910.12(a).... employees working Phase on scaffolds ulation, § [T]he C.F.R. ground over ten feet above the without fall ... language of 1910.12 is marked protection guardrails violation of 29 multi-employer [worksite] tension ” § 1926.451(g)(l)(vii). Although C.F.R. it is doctrine.... 70 F.3d at 1306. undisputed that none of Summit’s unnecessary it because was to the outcome exposed any ees were to hazard created case, the court indicated “we violation, the scaffold the OSHA officer to a later critical leave date the decision of issued Summit a citation for violation of 29 apply the multi-employer whether § 1926.451(g)(l)(vii) C.F.R. based on doctrine where an has [worksite] policy.3 industry been cited under construction regulations of 29 C.F.R. 1910.12.”Id. at citation, Summit contested the and the date, only 1307. To court to have matter was referred to an Administrative (“ALJ”). addressed this issue has held that the Sec- Judge argued Law Summit retary’s 1910.12(a) did duty scope not exceed the protect only employees, its own not those Homes, L.P., Weekley Comm’r Labor v. Therefore, any subcontractor. accord- N.C.App. Summit, 1910.12(a) S.E.2d 414-15 ing precludes citing controlling employ- from employees ers whose own were not ex- Background B. Factual posed to the hazardous condition. The upheld rejected ALJ the citation and Sum- case, Contractors, In this Summit Inc. 1910.12(a) position mit’s (“Summit”) because “does general was the contractor for not prohibit application employer’s of an college dormitory construction of a safety responsibility employees of other Rock, Little Arkansas. Because Summit employers.” had project, subcontracted the entire it had four at the construc- granted OSHRC review and issued superintendent tion site: a project separate opinions. Although three one of superintendents. three assistant Summit opinions agreed ALJ, these with the masonry subcontracted the exterior brick two requires other held that (“All Construction, work to All Phase Inc. protect only each its own em- Phase”). two or three separate On occa- ployees thereby precludes the control- sions, project Summit’s superintendent Therefore, ling employer citation policy. had observed All Phase operat- citation, OSHRC vacated the and its deci- ing personal protection without fall on sion became the final order. Because the guardrails. pro- scaffolds lacked The alleged Arkansas, violation occurred the ject superintendent had advised All Phase Secretary a petition filed for review in our to correct problems. 660(b). these pursuant court to 29 U.S.C. The when All Phase’s moved the Secretary argues plain language that the location, they scaffold to another would of preclude does not con- again work without fall protection and trolling employer and that guardrails. without give the courts should deference to the also cited All Phase for the lion exposing employer violation under the cha-

823 (8th Cir.2003) In re Fash- (quoting Old regula- of the interpretation Secretary’s (8th Enters., Inc., 422, 236 F.3d 425 address ioned Hence, required to we are tion. Cir.2001)). However, is due “[d]eference recognized by decision” the “critical Crane, agency developed an has its inter- 70 F.3d when Anthony D.C. Circuit. reg- with the pretation contemporaneously at 1306. ulation, consistently agency when the has II. DISCUSSION time, regulation over and when applied the the result of agency’s interpretation is of Review A. Standard consideration.” Id. thorough and reasoned factual uphold will OSHRC’s We Bowen, Valley Hosp. v. 792 (quoting Sioux by substan they “supported if are findings (8th Cir.1986)). 715, F.2d 719 as a the record considered tial evidence on 660(a); Pa Omaha 29 U.S.C. whole.” Regulatory Interpretation B. Labor, F.3d Sec’y v. 304 Stock Co. per examining meaning In Cir.2002). (8th 779, to the Pursuant 782 1910.12(a), inquiry begins with the our Act, will “[w]e Administrative Procedure look to regulation’s plain language. We unless legal conclusions uphold [OSHRC’s] a language at issue has see “whether an abuse of ‘arbitrary, capricious, they are unambiguous meaning with re plain and discretion, not in accordance or otherwise in the case.” gard particular dispute ” (citing 5 U.S.C. law.’ Id. v. Shell Oil 519 U.S. See Robinson 706(2)(A)). 337, 340, 843, 136 L.Ed.2d 808 117 S.Ct. meaning “In situations which interpre an “The Court will avoid is not free from language [regulatory] a that renders some [regulation] tation of doubt, reviewing give should ef court United altogether words redundant.” long interpretation so agency’s fect to the Alaska, 1, 59, 117 v. 521 U.S. S.Ct. States reasonable, is, long so as it is (1997) (internal 1888, quo 138 L.Ed.2d231 sensibly conforms to interpretation omitted); see Nat’l Ass’n Home tations regulations.” wording purpose Wildlife, 551 U.S. Builders v. Defenders of Martin, 150, 111 1171 499 U.S. at S.Ct. 2518, 2536, 644, L.Ed.2d 467 127 168 S.Ct. omitted) (internal and citation quotations reading regu (cautioning against (alteration v. original); accord Chalenor part of it way “in a makes lation (8th D., 1042, redundant”). N. 291 F.3d 1046 Univ. should “avoid We also Cir.2002) (“If ambiguous, regulation ren that would [regulatory] construction construc any [regulation] then we defer to reasonable the same part another der Stanko, though its inter by [agency], even States v. superfluous.” United Cir.2007) (8th 408, (quoting most ‘not be the best or 413 pretation might Gomez-Hernandez, 300 or other stan v. grammatical natural one United States (8th ”) Cir.2002)); Nat’l 974, see Pauley BethEnergy v. 979 (quoting dards.’ F.3d 644, Builders, 127 Mines, Inc., 111 Home 551 U.S. S.Ct. Ass’n 501 U.S. (avoid (1991)). 2535-36, 168 L.Ed.2d In those L.Ed.2d 604 S.Ct. render interpretation that would ing inter Secretary’s in which instances Jewett OSHRC’s, regulation superfluous); part we afford from pretation differs 315-16, Comm’r, 102 S.Ct. Secretary’s 455 U.S. deference to substantial (1982) (same); Dry Martin, L.Ed.2d interpretation. reasonable Fin. 661 Budke’s Arrow den v. Lou 111 defer “[N]o at S.Ct. U.S. Cir.1981) (same). (8th 1186, 1189 contrary F.2d interpretation if ence is due 1910.12(a)general §of Any interpretation meaning.” Advanta regulation’s plain of accepted rules Chao, conform to the A, ly 728 should Inc. v. US See, grammar. e.g., Dep’t employer protect & Ur that an places shall of Hous. Rucker, 125, 131, employment ban Dev. v. 535 U.S. 122 of of of each his (2002) (2)”). (reject (“part S.Ct. 152 L.Ed.2d 258 ing interpretation an of statute that runs case, prepositional In this phrase “of grammar). Ap counter to basic rules of employees” each of his adjec- serves as an rules, plying these construction we must tive that meaning “employ- narrows the of 1910.12(a) pre now determine whether “places employment.” ment” and of See adopting from cludes the (“A prepositional id. at 188 5.166 phrase noun, adverb, can be used as a ... an ... adjective ....”); an or 1910.12(a) id. 5.66 §of The first sentence indi- (discussing limiting adjectives). Because adopted cates that OSHA the federal con- the term “of each of employees” his limits and that struction standards these stan- (1) “employment,” part the term provides all apply dards now construction sites employer protect that an shall only the rather than covered under OSHA fed- employment employees. of his Stated dif- erally federally funded and assisted con- (1) ferently, part provides employ- that an struction contracts. The second sentence protect only er shall his employees.4 How- states: ever, this is not the end the analysis. of protect employ- Each shall (2), In part the term “of each of his em- places employment ment and of of each ployees” “places limits the term of employ- employees engaged of his construc- ment” such that protect shall by complying appro- tion work with the of employment where the em- priate prescribed standards this para- ployer actually employees. has See Reich graph. Inc., Simpson, Gumpertz Heger, & subject 29 C.F.R. The of (1st Cir.1993) F.3d 4-5 (holding that the employer,” this sentence is “each the verb plain language of establishes objects protect,” is “shall and the are “em- duty protect only those ployment” and “places employment.” they construction sites where have employ- preposi- rest sentence contains ees). (1), (2) part part Unlike of the regu- phrases; tional a preposition serves to lation does not limit the employer’s duty to (a object an equiva- “link[] noun or noun protect only the employer’s own lent) to another word the sentence to Therefore, ees. plain language part relationship show the between them.” (2) preclude employer’s does not duty Chicago Style, Manual 5.162 protect place employment, includ- (15th ed.2003). case, In preposi- ing place others who work at the of em- objects, tion “of’ serves to link the “em- ployment, long so the employer as also has ployment” “places of employment,” to employees at that place employment. Hence, “each of employees.” gram- his Homes, Weekley 609 S.E.2d at 415. reconstructed, matically the language of (1) the regulation requires: that an em- Summit regula contends that the ployer protect shall requires protect only (1)”) (2) each of his employees (“part employees.” “his creating Because the agree Secretary's argu 4. We do not with the (holding S.Ct. 160 L.Ed.2d 548 employees” ment that "his does not mean meaning" "may that the "natural seek con- "only employees.” reading his The natural during following any tribution ... civil requires employees” "only tous read "his may only action” is that contribution be Indus., employees.” Cooper his Inc. v. Cf. then). sought Servs., Inc., 157, 166, Aviall 543 U.S. a situation where the and con- we cannot envision correcting employer employer, will policies permit protection “place employment” of a of trolling employer directly encompassed citations to not related to or to issue be OSHA employees exposed are not “employment.” their own of To protection when the hazard, reading of Summit’s meaning to the to the give independent some 1910.12(a) effectively precludes § these employment” require of would “place term exposing em- only permits and the policies protect to others who work (1) policy. Although part ployer citation long as the place at that of so (2) interpretation, part may support at that employees place also has avoid something different to provide must Therefore, reject we employment. of (1). ar- part Summit being superfluous that interpretation and conclude Summit’s (2) gues part requires 1910.12(a) unambiguous is in that it does only his at their protect issuing from citations preclude not OSHA interpretation cre- employment. This employers for violations when their own First, inter- Summit’s problems. ates two exposed any are not hazards contrary grammatical pretation is related to the violations. it re- of the sentence because construction if find Even we were to Summit’s employees” of his quires the term “each interpretation to be reasonable and sentence, than a object of the rather be the 1910.12(a) ambiguous, therefore we was that modifies the ac- prepositional phrase Secretary’s interpreta defer to the would Second, objects tual of the sentence. Summit contends nonetheless. would make the interpretation Summit’s give not deference to Sec we should redundant of “places employment” term 1910.12(a) be retary’s interpretation of therefore, and, su- “employment” the term adopt Secretary did not cause the interpretation, Summit’s perfluous. Under policy con different from or nothing part provides regulation with the temporaneously (1); instead, it makes part in addition to multi-employer has not had a consistent employment” a subset “places the term 1910.12(a) was en worksite since Granted, “employment.” of the term USA, acted. See Advanta protection be times in which the there will However, the is Summit conflates directly not be relat- “employment” will Secretary’s inter sues. We defer to “place[] of a of em- protection ed to the 1910.12(a), regulation, of her pretation instance, employee For ployment.” Secretary’s interpretation of condition exposed dangerous to a could be policy.5 her away employment but during the course of of the multi-em- However, Secretary’s application opposite worksite. from the only relevant to provide ployer cannot is not true. Summit urged by regulations the Secre- Act as afford OSH 5. Summit contends that should 1910.12(a) Martin, Secretary's interpretation adjudications. tary in OSHRC 156-57, weight under v. & some Skidmore 1171. Because U.S. at 111 S.Ct. Swift 134, 140, 161, 89 L.Ed. 124 323 U.S. 65 S.Ct. interpretation provided her However, interpreta agency's "[a]n adjudication, we at an OSHRC meaning regulations is of its own tion of apply deference to Secre- do not Skidmore plainly 'unless erroneous entitled to deference tary's interpretation. we afford ” regulation!)]' Nat'l or inconsistent with Secretary’s infor- deference to the Skidmore Builders, 127 S.Ct. at 2537-38 Ass’n Home regulation interpretations such mal Robbins, 452, 461, (quoting 519 U.S. Auer Opera- in the OSHA Field those contained Also, (1997)). 137 L.Ed.2d 79 117 S.Ct. S.Ct. 1171. Id. at tions Manual. Secretary’s interpretation of we defer to 826 light extending employer’s that it sheds on the Sec- elude her from an

the extent 1910.12(a). § retary’s interpretation liability beyond employees, its own espe- cially Secretary adopted when the the cre- First, Secretary initially the did not in ating employer policy citation in the 1971 1910.12(a) § terpret limiting employ Operations OSHA Field Manual and start- responsibility its employees. er’s own ed to issue citations based on the control- Contemporaneous with the enactment of theory ling employer shortly reg- after the in regulation May the issued OSHA ulation was enacted. au Operations its first Field Manual that agency thorized the to cite who Second, disagree with Summit’s con- “endanger created hazardous condition Secretary tention that the has not consis- (whether ing employees his own or those tently applied her interpretation ” OSHA, 1910.12(a) employer).... of another Field § Although over time. the Sec- ¶ 10, Manual at Operations (May VII-6-8 retary multi-employer altered the 1971). By adopting the creating em policy exposing employ- to include the ployer policy, employ citation OSHA held er citation in its 1974 OSHA Field responsible ers for OSHA violations even Manual, Operations Secretary the appears when their own were not ex response to have done so in to OSHRC’s any posed to hazards related to the viola decisions, City Wide and Gilíes which held tions. OSHA also started issue cita that creating employer and controlling controlling tions based on the employer employer policies violated theory only eight promul 654(a)(2). months after the Nonetheless, § even after Gilles, § gation of See 4 OS adopting this new multi-employer worksite AHRC at 1085. policy, Secretary continued to chal- lenge City Wide and Gilíes decisions. Nonetheless, argues Summit Works, See Martin Iron at OSAHRC Secretary did initially not intend 695; HRH, 841; Hawkins, at OSAHRC 1910.12(a) § an employer’s extend liabil- Secretary 8 OSAHRC at 569. The had ity beyond employer’s own requested public also pro- comment on a 1910.12(a) § because did adopt posed regulation adopting the creating em- § C.F.R. 1926.16when it adopted the con- ployer and the cita- struction standards of the Construction policies. Secretary appears The Safety Act. Section 1926.16 is a regulation response have done this in to various fed- Safety of the Construction Act published appeals eral court of indicating decisions § B Subpart of 29 C.F.R. 1926 that 654(a)(2) preclude does not the cre- language specifically contains extending an ating employer controlling employ- and the employer’s liability beyond its own Brennan, policies. er citation ees. Secretary When issued 1038; 1910.12(a), Anning-Johnson, F.2d regulation adopted “the at 1091 n. 21. Secretary abandoned published Subpart standards” C and rulemaking the informal subparts process later of 29 after C.F.R. which adjudications Anning-John- do not include OSHRC’s 1926.16. See 29 C.F.R. 1910.12(c) 1910.11, Steel, § § son and Grossman which (discussing which established parts creating 1926 are adopted). controlling and the more, Secretary’s without policies failure to and held that 654(a)(2).6 adopt prove Thus, 1926.16 does not policies did not violate Secretary interpreted § pre- Secretary’s during actions this time 6. The amici on behalf of Summit contend that without first lawfully apply could not and em- expansive definition the Secre- insight into may provide period Supreme in of the Court’s ployee inter- violation and several courts’ tary’s, OSHRC’s Mutual Insurance 654(a)(2), they do not in Nationwide but direction pretations Darden, 322-25, 318, 112 S.Ct. Secretary’s inter- 503 U.S. into the v. insight provide Darden, 1910.12(a). Therefore, 1344, In be- 581 117 L.Ed.2d pretation in the record held that when Con- Supreme is no evidence Court cause there interpreted “employee” ever insuffi- Secretary has the term gress that leaves 1910.12(a) holding clear, her from preclude ciently courts are to construe for OSHA violations master- according an liable to the conventional term employees, by affect its own relationship that do not as understood com- servant 322-23, inter- Secretary’s reasonable defer to the Id. at agency mon-law doctrine. 1910.12(a) pre- not that does pretation by Based on statements 112 S.Ct. 1344. pol- citation controlling employer clude the Cleary dissenting in his Commissioner icy. believes that the control- opinions, Summit premised policy is ling employer language of plain that findWe employer and em- a broad definition of the Secre- preclude does not common-law defini- rather than the ployee controlling employer citation tary’s City deci- tion. After the Wide Gilíes ambiguous, we regulation were Even if the sions, for Cleary contended Commissioner Secretary’s reasonable to the would defer multi-employer policy be- a broad worksite Therefore, OSHRC interpretation. employee definitions [of cause “[t]he determining abused its discretion require employer] expressly do policy relationship 1910.12(a), ordinary employer-employee conclu- legal a conflicted with ‘employee’ can- adhered to. The term not in accordance with be sion that was solely according to com- not be construed law. and servant.” concepts law of master mon Arguments Alternative C. Co., 7 E. Co. & Soule Steel James Roberts (1974) 1005, (Cleary, 1007 OSAHRC controlling em- argues that the Summit Hawkins, Comm’r, part); see dissenting on an policy premised ployer citation Foods, Inc., 533 rulemaking United States v. United through adopting it the informal 2334, 405, 417, L.Ed.2d 150 U.S. 121 S.Ct. Procedure Act. process the Administrative (2001) (“Just we declined an this Term argument may have 438 § 553. This See 5 U.S.C. new ar by amicus to entertain invitation Constr. merit. But see Universal some Lopez judgment, v. guments see argument). to overturn (rejecting 2 F.3d at 728 n. 182 6, 714, 230, 244, Davis, n. 121 S.Ct. Congress U.S. 531 Supreme has stated that Court (2001), and we consider "adjudi 635 ... 148 L.Ed.2d to use its did not intend for OSHRC role," party's sug course to decline policymaking it the better catory play a power to case.”); 1171, v. Martin, 154, doing Davis gestion so in this as it for 111 S.Ct. 499 U.S. *, 452, States, n. 114 512 U.S. 457 Anning-Johnson and United appears OSHRC did (1994) Therefore, (“Although we will consider 2350 S.Ct. Grossman Steel. brief, we only in an amicus arguments raised multi-employer may required its be to submit when the issue is one rulemaking to do so are reluctant informal omitted); ....”) (citation impression first process, unless the Mitchell, Serv., U.S. 451 Parcel Inc. United interpretive rule or a statement is an 1559, 67 L.Ed.2d n. 101 S.Ct. Transp. Assoc. v. Fed. Aviation policy. See Air (“We argu (D.C.Cir.2002); [the to consider Admin., decline Gen. 291 F.3d was not by since it amici] Agency, ment raised Prot. 290 F.3d Elec. Co. v. Envtl. parties here or be by of the (D.C.Cir.2002). raised either we decline 382-85 Henman, low.”); Peltier v. because it was raised consider this issue 1993) (same). (8th parties. Cir. by the by the amici and not this court (Cleary, Comm’r, 8 OSHRC at 572 dissent sion is cast into doubt a decision of the (“[T]he Court.”). ing) employees of a Supreme subcontractor should be considered the Nonetheless, Summit raises a nov contractor, general, prime purposes for 654(a)(2) argument el asserting that lim [OSH] Act...Summit contends employer’s duty provide its an a safe adopted OSHRC Commissioner workplace employees. his Section Clearly’s broad definition of 654(a)(2) “occupational uses the term safe employee when it Anning-John decided standards,” ty and health which is defined son Grossman Steel. requires as “a standard which conditions ... Anning- reasonably necessary

Summit misconstrues appropriate or Nothing provide Johnson Grossman Steel. in safe or healthful employment and opinions remotely those employment.” indicates that of 29 U.S.C. 652(8). § relied on a OSHRC broad definition of Summit claims that Rather, employee. or must mean OSHRC the common law master-serv premised Darden, the controlling employer citation ant relationship. See 503 at U.S. 654(a)(2), which, 322-25, § upon 1344; 652(5), 112 unlike S.Ct. 29 U.S.C. 654(a)(1), Therefore, does not an employer’s Summit, base according to liability 654(a)(2) employer- duty on the existence of an in expressed cannot ex employee relationship. Anning-Johnson, beyond tend the common law master-serv IBP, 1198-99; 4 BNA at relationship. OSHC ant 144 Grossman F.3d at 865 Steel, dicta). 1188; Knutson, (raising 4 BNA in argument OSHC at see this But see Indus., Therefore, Trinity 566 F.2d at 599. 504 F.3d at (rejecting the control a similar ling employer argument). citation policy prem is not on expansive ised an definition of employer argument This contains the same defect employee and does not conflict with the argument Summit’s with respect Darden Sec’y decision. See Labor v. of 397, Specifically, to make both Inc., Indus., (3d Trinity meaningful, terms the use of the term Cir.2007) (holding that the multi-employer “places employment” provide must Darden). policy did not violate something different than the term “em- ployment.” agree We the term argues Summit also that the Sec “places of employment” employ- limits the retary legal authority has no for the con duty er’s to worksites where he has em- trolling employer policy. citation Howev ployees. it is not limited er, 654(a)(2) held Knutson that “employment” employees of his be- provides statutory authority for the con cause that interpretation would render the trolling employer Knut phrase “places employment” redundant son, 566 F.2d at 599. by We are bound and, “employment” therefore, superflu- this decision unless the en banc court or Builders, ous. See Nat’l Ass’n Home the Supreme Court reaches a different Jewett, 2536; 127 S.Ct. at 455 U.S. at 315- Kent, result. See United States v. 1082; 102 S.Ct. Dryden, 661 at F.2d (8th Cir.2008) (“[A] F.3d 656-57 panel of this by Court is bound a prior Eight Circuit decision unless that case is over Alternatively, Summit contends banc.”) ruled sitting the Court (quo en that the controlling employer poli omitted) (alteration tation in original); 653(b)(4) cy violates 29 U.S.C. it because Healthcare, Inc., Patterson v. Tenet 113 would employer’s liability increase the at (8th Cir.1997) (“[T]his F.3d rule common law. provides The statute apply does not when the panel earlier deci- “[n]othing chapter in this shall be con- contrac- general when the violation manner af- OSHA any or in supersede strued the subcontractor or to tor had informed law compensation any workmen’s fect Although a prior occasions. any other violation or affect diminish enlarge or setting statutory plays a role contractor general law or the common manner worksites, OSHA is safety duties, standards or liabilities rights, regulatory respect function-specific any law intricate and under employees employer on diseases, that each regime or death such injuries, of, to know of, may uniquely situated or in course be arising out 653(b)(4). require- regulatory The feder- very specific 29 U.S.C. ment.” trade. provision affecting particular does its held ments courts have al Therefore, cita- action and cause of private not create responsibil- tort of state an enormous preemption policy places prevents federal all schemes. to monitor compensation ity general on a contractor and worker’s law Ass’n, a worksite. Mgmt. aspects and all Solid Wastes v. Nat’l Gade 88, 96, 120 be policy 112 S.Ct. concerns should these 505 U.S. 653(b)(4) (1992) § Secretary that (holding Congress or to the 73 addressed to L.Ed.2d tort Dep’t of state Fla. preemption federal the prevents and not to courts. of schemes); Inc., 554 compensation Piccadilly Cafeterias, law and worker’s Revenue v. Inc., 480 F.3d Caterpillar, -, v. 171 Lindsey 128 S.Ct. U.S. Cir.2007) (3d (same); (2008) (“[I]t Am. Fed’n is not for us 206 203 L.Ed.2d of Rumsfeld, v. Employees, AFL-CIO the policy ... for Gov’t our view of substitute (hold- (D.C.Cir.2003) 139, 143-44 by F.3d passed 321 has been Con- legislation which 653(b)(4) pri- a § does not create omitted); that ing Powerex gress.”) (quotation Conoco, action); v. Servs., Inc., Crane vate cause Energy Corp. v. Reliant Cir.1994) (9th Inc., 2411, 2420, 168 L.Ed.2d 127 S.Ct. U.S. Passenger (same); R.R. Ries v. Nat’l (2007) (“[It] that policy debate is a Cir.1992) (3d 1156, 1164-65 F.2d Corp., 960 not in the Congress, in halls of belongs the 653(b)(4) prohibits private § that (holding Court.”). hearing room of this a including the use of action causes III. CONCLUSION to estab- regulation of an OSHA

violation se). Because the con- per negligence lish that OSHRC’s Because we conclude policy neither employer trolling law, grant the contrary to holding was action nor cause of private a creates or- vacate OSHRC’s Secretary’s petition, law, policy does the preempts state proceedings for further and remand der 653(b)(4) increasing an em- by violate this opinion.7 with consistent law. liability at common ployer’s dissenting. BEAM, Judge, Circuit ar and the amici Finally, Summit (the majority’s panel I in the concur employer citation controlling that gue 654(a)(2) court’s) that 29 U.S.C. analysis is ill-conceived is an of 29 C.F.R. requirements incorporates goals of the OSH counterproductive im- governance within benefits potential It is uncertain what Act. Safety and by Occupational posed a subcontractor citing in both gained are Act).8 (OSH I also of 1970 Health Act single for general contractor and dicta, Safety Occupational and pending 8. In clear deny motion We the amici's also gener- to a refers Review Commission Health respond to brief to leave to file a rebuttal 654(a)(2) under al contractor's duties Secretary’s reply brief. Co., 4 Anning-Johnson Secretary Labor (1) concur in the court’s fundamental gram- requires: shall 1910.12(a).9 interpretation matic I protect employment of each of his however, disagree, with the court’s conclu- (1)”) employees (“part that an regulation, sion that the as the court con- protect places shall of em- it, sufficiently strues ambiguous to re- ployment of each of his employees (“part quire this court to defer (2)”). of Labor’s decision to overrule the careful- (alteration Ante at 824 original). fully I ly reasoned Occupational decision of the agree analysis with this as far goes. as it Safety and Health Review Commission neglects, however, The court to note that (Commission) vacating Occupa- Summit’s prepositional phrase “of each of his Safety tional and Health Administration employees” is further limited the words (OSHA) “controlling employer” citation. “engaged in construction work.”

Accordingly, I dissent. states, The court then correctly regard

With to the last sentence of prepositional phrase “of each of his 1910.12(a), which reads “[e]ach employees” adjective serves as an protect employment shall narrows meaning “employment” of each of his en- “places employment.” [Chicago gaged in by complying construction work (“A Style,] Manual prepo- 5.166 appropriate prescribed standards phrase noun, sitional can be used as a paragraph,” says: the court ... adverb, an ... adjective or an subject The of this sentence is “each ....”); at id. 165 5.66 (discussing lim- employer,” the protect,” verb is “shall iting adjectives). Because the term “of objects and the are “employment” and each of his employees” limits “places of the term employment.” The rest of the (1) “employment,” part provides sentence that an prepositional phrases; contains employer shall protect only the preposition employ- to object serves an “link[ ] (a ment of employees. noun his equivalent) or noun to Stated differ- another (1) ently, part provides word in the that an employer sentence to show the rela- protect shall tionship only employees. between them.” his Chicago Man- How- (15th ed.2003). ever, ual this Style, 187 5.162 is the end of analysis. the of case, (2), In preposition part this the In “of’ serves the term “of each of his link objects, to the “employment” employees” and “places limits the term of “places employment,” employment” of to of “each his such that the Hence, employees.” grammatically protect re- shall places employment of constructed, language regula- of the where actually has em- BNA OSHC 1975-1976 CCH OSHD prescribed The standards part 1926 of ¶ 20,690 (O.S.H.R.C. 12, 1976), May never chapter adopted occupational are 1910.12(a). mentioning regulation § This safety and health standards under section 6 AnningJohnson dicta from was discussed in apply, according of the Act and shall to the Marshall v. Knutson Construction thereof, provisions every employment (8th Cir.1977) F.2d which also does place employment every and of employee of regulatory not address the issue before engaged in construction work. Each em- Thus, court in this case. Knutson is not bind ployer protect employment shall ing precedent in this circuit. See United of of each of his em- Norris, (8th States v. 486 F.3d ployees engaged in construction work - Cir.2007), denied, -, cert. U.S. complying appropriate with the standards S.Ct. 169 L.Ed.2d 739 prescribed paragraph. in this regulation 9. The entirety provides: its 29 C.F.R. Secretary in dis- be accorded Simpson, Gum should Reich v. ployees. (1st Inc., the Commission. 4-5 she has with putes Heger, & pertz Cir.1993) lan plain (holding that the anal- attempts to buttress The court duty establishes of guage interpretive equally unsupported ysis with con those protect instance, says, court exercises. The employ they have where sites struction it “[fjirst, interpretation [that Summit’s ees). by its own only for violations can be cited omitted). (footnote Ante at 824-25 contrary grammatical employees] is puzzling then advances a The court it re- of the sentence because construction regulatory intent extension unsupported employees’ his term ‘each of quires the fur- words. Without from these gleaned sentence, than a rather object be from analysis support grammatic ther ac- that modifies the phrase prepositional inferences, court language-based other at 825. Ante objects tual of the sentence.” posits incorrect; interpretation Summit’s This is (2) [ujnlike (1), regula- part part of his correctly retains “of each clearly and duty employer’s limit the tion does not adjectival limitation on as an employees” em- employer’s own only the protect ob- of the sentence’s or the other one Therefore, plain language ployees. employ- “places of jects^ -“employment” or — preclude employ- does not part states, “[s]econd, then ment.” court place duty protect er’s make interpretation would Summit’s at the ment, who work including others employment’ redundant ‘places term long as the so employment, place therefore, and, su- ‘employment’ the term at has also analysis This Ante 824-25. perfluous.” employment. place of properly con- As is likewise incorrect. added) (citation Ante (emphasis at 824 at all be- redundancy there no strued is omitted). epiphytic statement This —it “employment” terms tween of from the words draws no nourishment “Employment” of “places employment.” course, is, 1910.12(a). of The issue here involve- personal refers to an individual’s to may decide duty an what not daily “Places or her work. with his ment an what himself but rather upon impose loca- geographic refers employment” of an to avoid required do site. the construction and tions at around (2) unambiguously Part sanction. OSHA Summit’s But, argues, “[u]nder court places of protect requires Summit nothing part provides interpretation, en- Summit’s employment of (1); part or in addition from different work for Summit. gaged in construction ‘places of em- instead, the term it makes Indeed, I more, less.10 nothing Nothing ‘employ- a of term subset ployment’ the idea that support no find words ” court also The at 825. ment.’ Ante ambi- bureaucratically created of this sort states, stuff of “deference” guity is the work, here, does the etc. Neither construction Although probably of moment it is no em- work” specify attempt those to define "construction whether the court court does instance, place ployer’s employees at Summit’s were analysis. For in the doing be talks about must ment court superintendents assistant superintendent and present at be or must work” "construction merely in work” or engaged in “construction em- alleged by another violation the time an "construction supervision of and coordination occurs, whether these ployer's employees or work?” during the happen need to exotic occurrences employee exposed could be to a dan- cede that I specifically have not re-

gerous during condition the course of searched the applicable type rules. This away employment but from the work personal, equipment individual would be site. opposite is not true. “protection of employment.” provide Summit cannot and we cannot Another hypothetical situation comes to protection envision a situation where the mind. Assume a coal-fired furnace is be- “place employment” of a will not be ing installed during construction of a new directly related to or encompassed by power plant, and the furnace’s burners and protection “employment.” portions interior up, to be need fired test- incorrect, Ante at 825. This is also Sum- ed, inspected adjusted by specially provide easily mit can envisioned situations personnel. trained employees may Other that refute the court’s contention. also be working on the furnace construc- First, “engaged the words in construc- tion but not inside the burner area. Fur- extremely work” will make it unlikely ther assume that requires OSH Act “employment away from the work specialized that these workers must wear any site” will be in way governed by protective gear doing while their work but is, protection And if it even other nearby need not do so. of such work displace “places would not The regulations OSH Act usually require employment” regulations. related safety steps regard with The provides complicated, OSH Act i.e., shut-off, furnace gas natural itself — complex interrelated and set of rules that entry lock-out and suppres- automatic fire apply sundry work situations. Individu- prevent sion—to untoward events which al mastery of the myriad upon OSH Act’s may endanger all employer’s work- myriad very likely of details is impossible. “place ers near the employment,” i.e., — safety Act imposes regulations OSH at the location of new furnace. This involving the individual worker that re- would, combination of regulations instance, quire, for protective clothing, res- course, protect specially per- trained pirators safety equipment every sonnel and the other construction employ- kind. regulations protect These particu- ees in the vicinity of the furnace construc- lar physical worker’s being may situation, tion. In such a regulation may conjunction not do so in particu- clearly, unambiguously, separately and lar job is, at the opera- site—that without redundancy, governs an employ- tions at discrete geographic locations on er’s specialized of each em- premises. (the ployee person regulations) and the particular This dispute is illustrative of (the place employment of place regula- my point. The court notes that a subcon- tions) for the benefit of groups both of the tractor’s working were ten feet employer’s employees. Thus, at the bot- or ground more above on scaffolding with- line, tom simply wrong is guardrails out required by OSHA her ambiguity argument and the Commis- guardrail rules. The requirement is a rule majority sion is correct that regulation directed employment— toward the of place does not support “controlling” person cita- i.e., working upon scaffolds. If the em- tions such as those issued in this case. ployees were spray-painting interior walls Finally, or the court blowing loose discounts building insulation into Summit’s ar- spaces, gument certainly Secretary’s OSHA rules that the interpretation almost would require masks, face probably, is respira- “counterproductive goals of the protection equipment, although I con- OSH Act.” time, Ante at At the same Congress, by authorized regulation uncertain is “[i]t that concedes the court by 1910.12(a), enactment through citing gained in are benefits potential what read, not au- correctly does OSHA, con- when general and a a subcontractor both Secretary’s thorize, rejects, it single a OSHA indeed case] in this for [as tractor when, ambiguity any especially if there is violation,” And policy. ante at reject, I these here, rule, ambiguity had informed which Summit as also occa- that show prior on those especially of violations policy problems, subcontractor that concedes problems further creates Secretary’s approach The court sions. function-specific solve, should serve intricate impossible is an are that OSHA logical that each read- guide such interpretative scheme regulatory as uniquely Congress’s situated may be It is not site ing on a work of er re- regulatory be re- specific need to very pronouncements to know trade. particular Secretary’s, and now affecting visited, it is the quirements note, which is them. fails to misinterpretation the court court’s What under true, impossible it is equally I dissent. sophisticat- the most Act even the OSH viola- recognize contractor general ed subcontractors, many by specialized

tions than employers are larger whom And, in the contractor. prime

general by amicus industry represented

case Builders Home Association

National resi-

(NAHB), percentage a substantial ALANIS-ALVARADO, in the United Carlos are constructed dences Petitioner, operate which by small businesses States through completely almost words, sup- In other subcontractors.11 Attorney HOLDER, JR.,* H. Eric of- homebuilding contractor general posed General, Respondent. (under all, any at “employees” no has ten recognized definition generally No. 06-72369. work”

term), construction “engaged in Appeals, Court States United contemplated employment” “places Circuit. Ninth Secretary’s impose To regulation. view, is, in my these rule 7, 2008. May and Submitted Argued rational matter of as a absurd 3, 2008. Sept. Filed quirks these The court dismisses 3, 2009. March Amended be addressed “should concerns Secretary and not or to the Congress argu- Such an at 829. courts.” Ante appeal. point of this misses main

ment employees. paid median of four bers have from 2002 indicate Census U.S. data to In- Resp. by es- Curiae (Supplemental Amicus percent of residential builder 68.1 about 10, 2008). 9,¶ on or fewer had four Req. tablishments December formation percent five 20.0 had payroll; and about * Jr., Holder, pre- for his is substituted Eric H. (Resp. Amicus payroll. nine Attorney decessor, Mukasey, as B. Michael ¶4, 8, August Req. at Curiae to Information General. 11, 2008). Currently, NAHB builder-mem-

Case Details

Case Name: Solis v. Summit Contractors, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 26, 2009

Citation: 558 F.3d 815

Docket Number: 07-2191

Court Abbreviation: 8th Cir.