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Solis v. Summit Contractors, Inc.: OSHA - Department of Labor can cite controlling employers, not just ones whose own employees endangered; dissent

1Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Hilda
Solis is substituted for Elaine L. Chao as petitioner.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 07-2191
________________
Hilda Solis, *
Secretary of Labor, United States *
Department of Labor,1 **
Petitioner, *
*
v. **
Summit Contractors, Inc., *
*
Respondent, * Petition for Review from the
* Occupational Safety and
Occupational Safety and Health * Health Review Commission.
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 *
-2-
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. *
________________
Submitted: January 17, 2008
Filed: February 26, 2009
________________
Before BYE, BEAM and GRUENDER, Circuit Judges.
________________
GRUENDER, Circuit Judge.
The Occupational Safety and Health Review Commission (OSHRC) held that
the Secretary of Labors (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 contractors own
employees were exposed to the hazard (exposing employer citation policy). The
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Secretary filed a petition for review. We grant the petition, vacate OSHRCs 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 (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. OSHRC carries out the adjudicatory functions of the
OSH Act. 29 U.S.C. 651(b)(3); Martin, 499 U.S. at 147.
The OSH Act describes an employers 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;
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(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
employers 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 OSHAs 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.
2Both 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
employers own employees.
-5-
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 Secretarys 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-68 (May 20, 1971). Hence, the manuals 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 subcontractors 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.
-6-
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 &
Cottings 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 OSHRCs
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 (OSHRC May 12, 1976) (We find ourselves in general agreement with the
principles enunciated in the cogent opinions of the Second and Seventh Circuit Courts
of Appeals.). OSHRC announced its revised position that a contractor who has either
created a hazard or controls a hazardous condition has a duty under 654(a)(2) to
comply with OSHA standards even if the contractors own employees are not exposed
-7-
to the hazard. Id. at 1197-99; Grossman Steel & Aluminum Corp., 4 BNA OSHC
1185, 1188, 1975-1976 CCH OSHD 20,691 (OSHRC May 12, 1976).
In Anning-Johnson, OSHRC stated:
[a]lthough not an issue in this case, we are constrained to mention this
Commissions 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.
4 BNA OSHC at 1199.
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.
4 BNA OSHC at 1188.
-8-
Throughout this period, the Secretary continued to address the multi-employer
worksite policy. In 1974, after OSHRCs City Wide and Gilles decisions, OSHA
altered its Field Operations Manual such that the multi-employer worksite policy
included only the exposing employer citation policy. OSHA, Field Operations
Manual X-14 (Jan. 22, 1974). In April 1976, after the decisions by the Second and
Seventh Circuits, the Secretary sought to implement an OSHA regulation for its multiemployer
worksite policy that would include the creating employer and the controlling
employer citation policies. The Secretary requested public comment on such a
proposed regulation. Citation Guidelines in Multi-Employer Worksites Request for
Public Comment Notice, 41 Fed. Reg. 17,639, 17,639-40 (Apr. 27, 1976). However,
before the comment period ended on May 27, 1976, OSHRC had decided Anning-
Johnson and Grossman Steel, which allowed the Secretary to issue citations based on
the creating employer and controlling employer citation policies. After these
decisions, the Secretary discontinued his efforts to promulgate through informal
rulemaking an OSH Act regulation for the multi-employer worksite policy.
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 policiesexposing employer, correcting
employer, creating employer and controlling employeras the 1994 version. See
OSHA, Field Inspection Reference Manual OSHA Instruction CPL 2.103 (Dec. 10,
1999).
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Since Anning-Johnson and Grossman Steel, general contractors have challenged
the Secretarys 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, 182 F.3d 726, 728 (10th Cir. 1999) (challenging the controlling employer
citation policy); R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 821 (6th Cir.
1998) (same); IBP, Inc. v. Herman, 144 F.3d 861, 865 (D.C. Cir. 1998) (same);
Knutson, 566 F.2d at 599 (same); Pitt-Des Moines, 168 F.3d at 976-85 (challenging
the creating employer citation policy); Beatty Equip. Leasing Inc. v. Secy of Labor,
577 F.2d 534 (9th Cir. 1978) (same). In Knutson, this circuit held that a general
contractor, as the controlling employer, has a duty under 654(a)(2) to protect not
only its own employees from safety hazards but all the employees engaged at the
worksite. 566 F.2d at 599. But see Melerine v. Avondale Shipyards, Inc., 659 F.2d
706, 710-11 (5th Cir. 1981) (holding that 654(a)(2) does not extend employers
responsibility beyond their own employees). We, therefore, have found that the
Secretary has statutory authority for the multi-employer worksite policy, including the
controlling employer citation policy. See Knutson, 566 F.2d at 599.
Recently, the United States Court of Appeals for the District of Columbia
Circuit has questioned whether the Secretarys controlling employer citation policy
violates OSHAs regulatory framework. See Anthony Crane Rental, Inc. v. Reich, 70
F.3d 1298, 1306 (D.C. Cir. 1995); see also IBP, 144 F.3d at 865-66. In Anthony
Crane, the court stated in dicta that it is not clear to us that the multi-employer
[worksite] doctrine is consistent with the Secretarys own construction industry
regulation, 29 C.F.R. 1910.12(a). . . . [T]he language of 1910.12 . . . is in marked
tension with the multi-employer [worksite] doctrine . . . . 70 F.3d at 1306. However,
because it was unnecessary to the outcome of the case, the court indicated that we
leave to a later date the critical decision of whether to apply the multi-employer
[worksite] doctrine where an employer has been cited under the construction industry
regulations of 29 C.F.R. 1910.12. Id. at 1307. To date, the only court to have
addressed this issue has held that the Secretarys multi-employer worksite policy did
3The Secretary also cited All Phase for the violation under the exposing
employer citation policy.
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not exceed the scope of 1910.12(a). Commr of Labor v. Weekley Homes, L.P., 609
S.E.2d 407, 414-15 (N.C. Ct. App. 2005).
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, Summits 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 Phases 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 29 C.F.R. 1926.451(g)(1)(vii). Although it
is undisputed that none of Summits employees were exposed to any hazard created
by the scaffold violation, the OSHA officer issued Summit a citation for violation of
29 C.F.R. 1926.451(g)(1)(vii) based on the controlling employer citation policy.3
Summit contested the citation, and the matter was referred to an Administrative
Law Judge (ALJ). Summit argued that 1910.12(a) places a duty on employers to
protect only its own employees, not those of any subcontractor. Therefore, according
to Summit, 1910.12(a) precludes the Secretary from citing controlling employers
whose own employees were not exposed to the hazardous condition. The ALJ upheld
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the citation and rejected Summits position because 1910.12(a) does not prohibit
application of an employers safety responsibility to employees of other employers.
OSHRC granted review and issued three separate opinions. Although one of
these opinions agreed with the ALJ, the other two held that 1910.12(a) requires each
employer to protect only its own employees and thereby precludes the controlling
employer citation policy. Therefore, OSHRC vacated the citation, and its decision
became the final order. Because the alleged violation occurred in Arkansas, the
Secretary filed a petition for review in our court pursuant to 29 U.S.C. 660(b). The
Secretary argues that the plain language of 1910.12(a) does not preclude the
controlling employer citation policy and that the courts should give deference to the
Secretarys interpretation of the regulation. Hence, we are required to address the
critical decision recognized by the D.C. Circuit. See Anthony Crane, 70 F.3d at
1306.
II. DISCUSSION
A. Standard of Review
We will uphold OSHRCs factual findings if they are supported by substantial
evidence on the record considered as a whole. 29 U.S.C. 660(a); Omaha Paper
Stock Co. v. Secy of Labor, 304 F.3d 779, 782 (8th Cir. 2002). Pursuant to the
Administrative Procedure Act, [w]e will uphold [OSHRCs] legal conclusions unless
they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law. Id. (citing 5 U.S.C. 706(2)(A)).
In situations in which the meaning of [regulatory] language is not free from
doubt, the reviewing court should give effect to the agencys 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, 499 U.S. at 150 (internal quotations and
citation omitted) (alteration in original); accord Chalenor v. Univ. of N. D., 291 F.3d
-12-
1042, 1046 (8th Cir. 2002) (If the regulation is ambiguous, then we defer to any
reasonable construction by the [agency], even though its interpretation might not be
the best or most natural one by grammatical or other standards.) (quoting Pauley v.
BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991)). In those instances in which the
Secretarys interpretation differs from OSHRCs, we afford substantial deference to
the Secretarys reasonable interpretation. Martin, 499 U.S. at 158. [N]o deference
is due if the interpretation is contrary to the regulations plain meaning. Advanta
USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 2003) (quoting In re Old Fashioned
Enters., Inc., 236 F.3d 422, 425 (8th Cir. 2001)). However, [d]eference is due when
an agency has developed its interpretation contemporaneously with the regulation,
when the agency has consistently applied the regulation over time, and when the
agencys interpretation is the result of thorough and reasoned consideration. Id.
(quoting Sioux Valley Hosp. v. Bowen, 792 F.2d 715, 719 (8th Cir. 1986)).
B. Regulatory Interpretation
In examining the meaning of 1910.12(a), our inquiry begins with the
regulations plain language. We look to see whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute in the case. See
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The Court will avoid an
interpretation of a [regulation] that renders some words altogether redundant. United
States v. Alaska, 521 U.S. 1, 59 (1997) (internal quotations omitted); see Natl Assn
of Home Builders v. Defenders of Wildlife, 551 U.S. ---, 127 S. Ct. 2518, 2536 (2007)
(cautioning against reading a regulation in a way that makes part of it redundant).
We also should avoid a [regulatory] construction that would render another part of
the same [regulation] superfluous. United States v. Stanko, 491 F.3d 408, 413 (8th
Cir. 2007) (quoting United States v. Gomez-Hernandez, 300 F.3d 974, 979 (8th Cir.
2002)); see Natl Assn of Home Builders, 551 U.S. ---, 127 S. Ct. at 2535-36
(avoiding an interpretation that would render part of the regulation superfluous);
Jewett v. Commr, 455 U.S. 305, 315-16 (1982) (same); Dryden v. Lou Budkes Arrow
Fin. Co., 661 F.2d 1186, 1189 (8th Cir. 1981) (same). Any interpretation of
-13-
1910.12(a) generally should conform to the accepted rules of grammar. See, e.g.,
Dept of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 131 (2002) (rejecting an
interpretation of a statute that runs counter to basic rules of grammar). Applying these
construction rules, we must now determine whether 1910.12(a) precludes the
Secretary from adopting the controlling employer citation policy.
The first sentence of 1910.12(a) indicates that OSHA adopted the federal
construction standards and that these standards now apply to all construction sites
covered under OSHA rather than only federally funded and federally assisted
construction contracts. The second sentence states:
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). 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)).
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
4We do not agree with the Secretarys 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., 543 U.S. 157,
166 (2004) (holding that the natural meaning of may seek contribution . . . during
or following any civil action is that contribution may only be sought then).
-14-
that an employer shall protect only the employment of his employees. Stated
differently, part (1) provides that an employer shall protect only his employees.4
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). Unlike part (1), part (2) of the
regulation does not limit the employers duty to protect only the employers own
employees. Therefore, the plain language of part (2) does not preclude an employers
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.
See Weekley Homes, 609 S.E.2d at 415.
Summit contends that the regulation requires the employer to protect only his
employees. Because the creating employer, correcting employer and controlling
employer citation policies permit OSHA to issue citations to employers when their
own employees are not exposed to the hazard, Summits reading of 1910.12(a)
effectively precludes these policies and only permits the exposing employer citation
policy. Although part (1) may support this interpretation, part (2) must provide
something different to avoid being superfluous to part (1). Summit argues that part
(2) requires the employer to protect only his employees at their places of employment.
This interpretation creates two problems. First, Summits interpretation 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. Second, Summits interpretation would
5Summit contends that we should only afford the Secretarys interpretation of
1910.12(a) some weight under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
However, [a]n agencys interpretation of the meaning of its own regulations is
entitled to deference unless plainly erroneous or inconsistent with the regulation[.]
Natl Assn of Home Builders, 127 S. Ct. at 2537-38 (quoting Auer v. Robbins, 519
-15-
make the term places of employment redundant of the term employment and,
therefore, superfluous. Under Summits 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. Granted, there will be times in
which the protection of employment will not be directly related to the protection of
a place[] of employment. For instance, an employee could be exposed to a
dangerous condition during the course of employment but away from the worksite.
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. To give some independent
meaning to the term place of employment would require the employer to protect
others who work at that place of employment so long as the employer also has
employees at that place of employment. Therefore, we reject Summits interpretation
and conclude that 1910.12(a) is unambiguous in that it does not preclude OSHA
from issuing citations to employers for violations when their own employees are not
exposed to any hazards related to the violations.
Even if we were to find Summits interpretation to be reasonable and that
1910.12(a) was therefore ambiguous, we would defer to the Secretarys interpretation
nonetheless. Summit contends that we should not give deference to the Secretarys
interpretation of 1910.12(a) because the Secretary did not adopt the controlling
employer citation policy contemporaneously with the regulation and has not had a
consistent multi-employer worksite policy since 1910.12(a) was enacted. See
Advanta USA, 350 F.3d at 728. However, Summit conflates the issues. We defer to
the Secretarys interpretation of her regulation, 1910.12(a), and not the Secretarys
interpretation of her multi-employer worksite policy.5 The Secretarys application of
U.S. 452, 461 (1997)). Also, we defer to the Secretarys interpretation of OSH Act
regulations as urged by the Secretary in OSHRC adjudications. Martin, 499 U.S. at
156-57. Because the Secretary provided her interpretation of 1910.12(a) at an
OSHRC adjudication, we do not apply Skidmore deference to the Secretarys
interpretation. However, we afford Skidmore deference to the Secretarys informal
interpretations of the regulation such as those contained in the OSHA Field Operations
Manual. Id. at 157.
-16-
the multi-employer worksite policy is only relevant to the extent that it sheds light on
the Secretarys interpretation of 1910.12(a).
First, the Secretary did not initially interpret 1910.12(a) as limiting an
employers responsibility to its own employees. Contemporaneous with the
enactment of the regulation in May 1971, OSHA issued its first Field Operations
Manual that authorized the agency to cite employers who created a hazardous
condition endangering employees (whether his own or those of another employer)
. . . . OSHA, Field Operations Manual 10, at VII-68 (May 20, 1971). By adopting
the creating employer citation policy, OSHA held employers responsible for OSHA
violations even when their own employees were not exposed to any hazards related
to the violations. OSHA also started to issue citations based on the controlling
employer theory only eight months after the promulgation of 1910.12(a). See Gilles,
4 OSAHRC at 1085.
Nonetheless, Summit argues that the Secretary did not initially intend
1910.12(a) to extend an employers liability beyond the employers own employees
because 1910.12(a) did not adopt 29 C.F.R. 1926.16 when it adopted the
construction standards of the Construction Safety Act. Section 1926.16 is a regulation
of the Construction Safety Act published in Subpart B of 29 C.F.R. 1926 that
contains language specifically extending an employers liability beyond its own
employees. When the Secretary issued 1910.12(a), the regulation adopted the
standards published in Subpart C and later subparts of 29 C.F.R. 1926, which do
not include 1926.16. See 29 C.F.R. 1910.11, 1910.12(c) (discussing which parts
6The amici on behalf of Summit contend that the Secretary could not lawfully
apply the multi-employer worksite policy without first adopting it through the
informal rulemaking process of the Administrative Procedure Act. See 5 U.S.C.
553. This argument may have some merit. But see Universal Constr. Co., 182 F.3d
at 728 n.2 (rejecting this argument). The Supreme Court has stated that Congress did
not intend for OSHRC to use its adjudicatory power to play a policymaking role,
-17-
of 1926 are adopted). However, without more, the Secretarys failure to adopt
1926.16 does not prove that the Secretary interpreted 1910.12(a) to preclude her
from extending an employers liability beyond its own employees, especially when
the Secretary adopted the creating employer citation policy in the 1971 OSHA Field
Operations Manual and started to issue citations based on the controlling employer
theory shortly after the regulation was enacted.
Second, we disagree with Summits contention that the Secretary has not
consistently applied her interpretation of 1910.12(a) over time. Although the
Secretary altered the multi-employer worksite policy to include only the exposing
employer citation policy in its 1974 OSHA Field Operations Manual, the Secretary
appears to have done so in response to OSHRCs City Wide and Gilles decisions,
which held that the creating employer and controlling employer citation policies
violated 654(a)(2). Nonetheless, even after adopting this new multi-employer
worksite policy, the Secretary continued to challenge the City Wide and Gilles
decisions. See Martin Iron Works, 9 OSAHRC at 695; HRH, 8 OSAHRC at 841;
Hawkins, 8 OSAHRC at 569. The Secretary had also requested public comment on
a proposed regulation adopting the creating employer and the controlling employer
citation policies. The Secretary appears to have done this in response to various
federal court of appeals decisions indicating that 654(a)(2) does not preclude the
creating employer and the controlling employer citation policies. See Brennan, 513
F.2d at 1038; Anning-Johnson, 516 F.2d at 1091 n.21. The Secretary abandoned the
informal rulemaking process after OSHRCs adjudications in Anning-Johnson and
Grossman Steel, which established the creating employer and the controlling employer
citation policies and held that the policies did not violate 654(a)(2).6 Thus, the
Martin, 499 U.S. at 154, as it appears OSHRC did in Anning-Johnson and Grossman
Steel. Therefore, the Secretary may be required to submit its multi-employer worksite
policy to the informal rulemaking process, unless the multi-employer worksite policy
is an interpretive rule or a statement of policy. See Air Transp. Assoc. v. Fed. Aviation
Admin., 291 F.3d 49, 55 (D.C. Cir. 2002); Gen. Elec. Co. v. Envtl. Prot. Agency, 290
F.3d 377, 382-85 (D.C. Cir. 2002). However, we decline to consider this issue
because it was raised to this court by the amici and not by the parties. See United
States v. United Foods, Inc., 533 U.S. 405, 417 (2001) (Just this Term we declined
an invitation by an amicus to entertain new arguments to overturn a judgment, see
Lopez v. Davis, 531 U.S. 230, 244, n.6 . . . (2001), and we consider it the better course
to decline a partys suggestion for doing so in this case.); Davis v. United States, 512
U.S. 452, 457 n.* (1994) (Although we will consider arguments raised only in an
amicus brief, we are reluctant to do so when the issue is one of first impression . . . .)
(citation omitted); United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981)
(We decline to consider [the argument raised by the amici] since it was not raised by
either of the parties here or below.); Peltier v. Henman, 997 F.2d 461, 475 (8th Cir.
1993) (same).
-18-
Secretarys actions during this time period may provide insight into the Secretarys,
OSHRCs and several courts interpretations of 654(a)(2), but they do not provide
insight into the Secretarys interpretation of 1910.12(a). Therefore, because there
is no evidence in the record that the Secretary has ever interpreted 1910.12(a) to
preclude her from holding an employer liable for OSHA violations that do not affect
its own employees, we defer to the Secretarys reasonable interpretation that
1910.12(a) does not preclude the controlling employer citation policy.
We find that the plain language of 1910.12(a) does not preclude the
Secretarys controlling employer citation policy. Even if the regulation were
ambiguous, we would defer to the Secretarys reasonable interpretation. Therefore,
OSHRC abused its discretion in determining that the controlling employer citation
policy conflicted with 1910.12(a), a legal conclusion that was not in accordance with
the law.
-19-
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 Courts
direction in Nationwide Mutual Insurance v. Darden, 503 U.S. 318, 322-25 (1992).
In Darden, the Supreme Court held that when Congress leaves the term employee
insufficiently clear, courts are to construe the term according to the conventional
master-servant relationship as understood by common-law agency doctrine. Id. at
322-23. Based on statements by Commissioner Cleary in his dissenting opinions,
Summit believes that the controlling employer citation policy is premised on a broad
definition of employer and employee rather than the common-law definition. After
the City Wide and Gilles decisions, Commissioner Cleary contended for a broad multiemployer
worksite policy because [t]he definitions [of employee and employer] do
not expressly require that ordinary employer-employee relationship be adhered to.
The term employee cannot be construed solely according to common law concepts
of master and servant. James E. Roberts Co. & Soule Steel Co., 7 OSAHRC 1005,
1007 (1974) (Cleary, Commr, dissenting in part); see Hawkins, 8 OSHRC at 572
(Cleary, Commr, dissenting) ([T]he employees of a subcontractor should be
considered the employees of the general, or prime contractor, for purposes of the
[OSH] Act . . . .). Summit contends that OSHRC adopted Commissioner Clearlys
broad definition of employer and employee when it decided Anning-Johnson and
Grossman Steel.
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
654(a)(2), which, unlike 654(a)(1), does not base an employers liability on the
existence of an employer-employee relationship. Anning-Johnson, 4 BNA OSHC at
1198-99; Grossman Steel, 4 BNA OSHC at 1188; see Knutson, 566 F.2d at 599.
Therefore, the controlling employer citation policy is not premised on an expansive
definition of employer or employee and does not conflict with the Darden decision.
-20-
See Secy of Labor v. Trinity Indus., Inc., 504 F.3d 397, 402 (3d Cir. 2007) (holding
that the multi-employer worksite policy did not violate Darden).
Summit also argues that the Secretary has no legal authority for the controlling
employer citation policy. However, we held in Knutson that 654(a)(2) provides
statutory authority for the controlling employer citation policy. Knutson, 566 F.2d at
599. We are bound by this decision unless the en banc court or the Supreme Court
reaches a different result. See United States v. Kent, --- F.3d ---, 2008 WL 2631441,
at *11 (8th Cir. July 7, 2008) ([A] panel of this Court is bound by a prior Eight
Circuit decision unless that case is overruled by the Court sitting en banc.) (quotation
omitted) (alteration in original); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832,
838 (8th Cir. 1997) ([T]his rule does not apply when the earlier panel decision is cast
into doubt by a decision of the Supreme Court.).
Nonetheless, Summit raises a novel argument asserting that 654(a)(2) limits
an employers duty to provide a safe workplace for only his employees. Section
654(a)(2) uses the term occupational safety and health standards, which is defined
as a standard which requires conditions . . . reasonably necessary or appropriate to
provide safe or healthful employment and places of employment. 29 U.S.C.
652(8). Summit claims that employment must mean the common law master-servant
relationship. See Darden, 503 U.S. at 322-25; 29 U.S.C. 652(5), (6). Therefore,
according to Summit, the duty expressed in 654(a)(2) cannot extend beyond the
common law master-servant relationship. See IBP, 144 F.3d at 865 (raising this
argument in dicta). But see Trinity Indus., 504 F.3d at 402 (rejecting a similar
argument).
This argument contains the same defect as Summits argument with respect to
1910.12(a). Specifically, to make both terms meaningful, the use of the term places
of employment must provide something different than the term employment. We
agree that the term places of employment limits the employers duty to worksites
where he has employees. However, it is not limited to only the employment of his
-21-
employees because that interpretation would render the phrase places of
employment redundant of employment and, therefore, superfluous. See Natl
Assn of Home Builders, 127 S. Ct. at 2536; Jewett, 455 U.S. at 315-16; Dryden, 661
F.2d at 1189.
Alternatively, Summit contends that the controlling employer citation policy
violates 29 U.S.C. 653(b)(4) because it would increase the employers liability at
common law. The statute provides that [n]othing in this chapter shall be construed
to supersede or in any manner affect any workmens compensation law or to enlarge
or diminish or affect in any other manner the common law or statutory rights, duties,
or liabilities of employers and employees under any law with respect to injuries,
diseases, or death of employees arising out of, or in the course of, employment. 29
U.S.C. 653(b)(4). The federal courts have held that this provision does not create
a private cause of action and prevents federal preemption of state tort law and
workers compensation schemes. Gade v. Natl Solid Wastes Mgmt. Assn, 505 U.S.
88, 96 (1992) (holding that 653(b)(4) prevents federal preemption of state tort law
and workers compensation schemes); Lindsey v. Caterpillar, Inc., 480 F.3d 202, 206
(3d Cir. 2007) (same); Am. Fedn of Govt Employees, AFL-CIO v. Rumsfeld, 321
F.3d 139, 143-44 (D.C. Cir. 2003) (holding that 653(b)(4) does not create a private
cause of action); Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th Cir. 1994) (same); Ries
v. Natl R.R. Passenger Corp., 960 F.2d 1156, 1164-65 (3d Cir. 1992) (holding that
653(b)(4) prohibits private causes of action including the use of a violation of an
OSHA regulation to establish negligence per se). Because the controlling employer
citation policy neither creates a private cause of action nor preempts state law, the
policy does not violate 653(b)(4) by increasing an employers liability at common
law.
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
7We also deny the amicis pending motion for leave to file a rebuttal brief to
respond to the Secretarys reply brief.
8In clear dicta, the Occupational Safety and Health Review Commission refers
to a general contractor's duties under 654(a)(2) in Secretary of Labor v. Anning-
Johnson Co., 4 BNA OSHC 1193, 1975-1976 CCH OSHD 20,690 (OSHRC May
-22-
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. Dept of Revenue v.
Piccadilly Cafeterias, Inc., 554 U.S. ---, 128 S. Ct. 2326, 2339 (2008) ([I]t is not for
us to substitute our view of . . . policy for the legislation which has been passed by
Congress.) (quotation omitted); Powerex Corp. v. Reliant Energy Servs., Inc., 551
U.S. ---, 127 S. Ct. 2411, 2420 (2007) ([It] is a policy debate that belongs in the halls
of Congress, not in the hearing room of this Court.).
III. CONCLUSION
Because we conclude that OSHRCs holding was contrary to law, we grant the
Secretarys petition, vacate OSHRCs order and remand for further proceedings
consistent with this opinion.7
BEAM, Circuit Judge, dissenting.
I concur in the panel majority's (the court's) analysis that 29 U.S.C. 654(a)(2)
incorporates the requirements of 29 C.F.R. 1910.12(a) within the governance
imposed by the Occupational Safety and Health Act of 1970 (OSH Act).8 I also
12, 1976), never mentioning regulation 1910.12(a). This dicta from Anning-
Johnson was discussed in Marshall v. Knutson Construction Co., 566 F.2d 596, 599
(8th Cir. 1977) which also does not address the regulatory issue before the court in
this case. Thus, Knutson is not binding precedent in this circuit. See United States
v. Norris, 486 F.3d 1045, 1054 (8th Cir. 2007), cert. denied, 128 S. Ct. 881 (2008).
9The 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.
29 C.F.R. 1910.12(a).
-23-
concur in the court's fundamental grammatic interpretation of 1910.12(a).9 I
disagree, however, with the court's conclusion that the regulation, as the court
construes it, is sufficiently ambiguous to require this court to defer to the Secretary of
Labor's decision to overrule the carefully reasoned decision of the Occupational
Safety and Health Review Commission (Commission) vacating Summit's
Occupational Safety and Health Administration (OSHA) "controlling employer"
citation. Accordingly, I dissent.
With regard to the last sentence of 1910.12(a), which reads "[e]ach 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," the court says:
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
-24-
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 13 (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 13-14 (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
10Although 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?"
-25-
[u]nlike 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 14 (emphasis added) (citation omitted). This statement is epiphyticit draws
no nourishment from the words of 1910.12(a). The issue here is, of course, not what
duty an employer may decide to impose upon himself but rather what an employer is
required to do to avoid an OSHA sanction. Part (2) unambiguously requires Summit
to protect the places of employment of Summit's employees engaged in construction
work for Summit. Nothing more, nothing less.10 Indeed, I find no words that support
the idea that this sort of bureaucratically created ambiguity is the stuff of "deference"
that should be accorded the Secretary in disputes she has with the Commission.
The court attempts to buttress the analysis with equally unsupported interpretive
exercises. The court says, for instance, "[f]irst, 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 14. 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
-26-
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 14-15. 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 15. 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 15. 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
1910.12(a). And even if it is, protection of such work would not displace "places
of employment" regulations.
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
-27-
places at the job sitethat 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 employmenti.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 itselfi.e., natural gas shut-off, entry lock-out
and automatic fire suppressionto 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
11U.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).
-28-
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 21. At the
same time, the court concedes that "[i]t is uncertain what potential benefits are gained
in citing both a subcontractor and a general contractor for [as in this case] a single
OSHA violation," ante at 21, especially when, also as here, Summit had informed the
subcontractor of violations on prior occasions. The court further concedes that OSHA
is an intricate and function-specific regulatory scheme such that each employer on a
work site may be uniquely situated to know the very specific regulatory requirements
affecting a particular trade. What the court fails to note, and which is equally true, is
that it is impossible under the OSH Act for even the most sophisticated general
contractor to recognize violations by specialized subcontractors, many of whom are
larger employers than the general or prime contractor. And, in the case of the industry
represented by amicus National Association of Home Builders (NAHB), a substantial
percentage of residences are constructed in the United States by small businesses
which operate almost completely through employment of subcontractors.11 In other
words, the supposed general homebuilding contractor often has no "employees" at all,
(under any generally recognized definition of the term), "engaged in construction
work" at "places of employment" contemplated by the regulation. To impose the
Secretary's rule on these employers is, in my view, absurd as a matter of rational
policy.
-29-
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 22. Such an argument
misses the main point of this appeal. The regulation authorized by Congress,
1910.12(a), through enactment by OSHA, when correctly read, does not authorize,
indeed it rejects, the Secretary's policy. And if there is any ambiguity in the rule,
which ambiguity I reject, these policy problems, especially those that show the
Secretary's approach creates problems that are impossible to solve, should serve as an
interpretative guide to a logical reading of 1910.12(a). It is not Congress's policy
pronouncements that need to be revisited, it is the Secretary's, and now this court's
misinterpretation of them.
I dissent.
______________________________
 

 
 
 

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