Summit Contractors, Inc., Docket No. 03-1622

SECRETARY OF LABOR,
Complainant,
v.	OSHRC Docket No. 03-1622
SUMMIT CONTRACTORS, INC.,
Respondent.

Stephen D. Turow, Attorney; Ann Rosenthal, Counsel for Appellate Litigation; Daniel J. Mick, Counsel for Regional Trial Litigation; Joseph M. Woodward, Associate Solicitor; Howard M. Radzely, Solicitor; U.S. Department of Labor, Washington, DC

Arthur G. Sapper, Esq.; Robert C. Gombar, Esq.; James A. Lastowka, Esq.; McDermott Will & Emery LLP, Washington, DC

For Amici National Association of Home Builders; Contractors’ Association of Greater New York; Texas Association of Builders; and Greater Houston Builders Association

Victoria L. Bor, Esq.; Sue D. Gunter, Esq.; Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, DC

At issue before the Commission is a decision of Judge Ken S. Welsch affirming a citation issued to Summit Contractors, Inc. (“Summit”) for an alleged scaffolding violation under 29 C.F.R. § 1926.451(g)(1)(vii).

Commissioner Thompson and I join in vacating the citation in its entirety.

Summit is a general building contractor with its corporate office located in Jacksonville, Florida. In June 2003, Summit was the prime contractor for the construction of a college dormitory in Little Rock, Arkansas. Summit employed only a job superintendent and three assistant superintendents at the worksite. The superintendents were responsible for coordinating the vendors, scheduling the work for the various subcontractors, and ensuring that the work of the subcontractors was performed according to contract. Summit subcontracted the project’s exterior brick masonry work to All Phase Construction, Inc. (“All Phase”). All Phase workers used scaffolding to perform their work.

On June 18 and 19, 2003, an Occupational Safety and Health Administration (“OSHA”) Compliance Safety and Health Officer (“CSHO”) observed and photographed All Phase employees who were not protected from falls working from scaffolds at 12-18 feet above the ground. The CSHO also observed other employees working from a scaffold inside a building on June 19; these workers were also not protected against falls. None of the exposed workers were employed by Summit. Summit did not create the hazardous conditions observed by the CSHO. Some of Summit’s superintendents were present at the worksite on June 18 and 19, and some of the instances were in plain view of Summit’s trailer located on the worksite. Summit does not claim it lacked knowledge of the violative conditions observed by the CSHO.

The CSHO did not perform a walkaround inspection, however, until June 24, 2003, when Summit’s safety officer could be present. At the time of the walkaround inspection, the scaffolding violations the CSHO observed on June 18 and 19 had been corrected. According to Summit’s project superintendent, Jimmy Guevara, he had previously observed All Phase employees working on scaffolds that lacked guardrails. Guevara had instructed All Phase to install guardrails two or three times prior to the OSHA inspection. Each time, All Phase would address the violation but then fall out of compliance when the scaffolding was moved to a different area.

Based on the CSHO’s observations on June 18 and 19, OSHA issued Summit a citation for a violation of the construction safety standard set forth at § 1926.451(g)(1)(vii) as a “controlling” employer in accordance with the agency’s multi-employer worksite doctrine extant at the time. All Phase was also cited under the doctrine as the employer who created the hazard and as the employer having employees exposed to the hazard.

Before the judge, Summit argued that the multi-employer worksite doctrine is invalid as to a general contractor who neither created, nor had employees exposed to, the alleged and cited hazard. In other words, Summit challenged the Secretary’s application of the doctrine to controlling contractors who have contractual authority over subcontractors. Summit argued before the judge, and also contends on review, that the doctrine as expressed in OSHA Directive CPL 2-0.124 (Multi-Employer Citation Policy) is not enforceable because it is contrary to 29 C.F.R. § 1910.12(a) which states as follows:

Standards. 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.

As the judge noted, Summit’s argument focuses on the second sentence of this regulation. Specifically, Summit’s position is that because it had no employees exposed to the hazard, and did not create the hazard, the regulation prohibits the issuance of a citation to Summit for the hazard created by the subcontractor, All Phase. The judge noted that the Commission has on numerous occasions applied the doctrine to controlling employers like Summit and, therefore, rejected the argument. Among others, he cited the Commission’s decision in Access Equipment Systems, Inc., 18 BNA OSHC 1718, 1999 CCH OSHD ¶ 31,821 (No. 95-1449, 1999), and McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 2000 CCH OSHD ¶ 32,204 (No. 97-1918, 2000). As for the specific argument relating to § 1910.12(a), the judge simply noted his view that the regulation does not prohibit finding an employer responsible for the safety of employees of other employers.

In a decision rendered almost 31 years ago, the Commission stated that “the general contractor is well situated to obtain abatement of hazards either through its own resources or through its supervisory capacity.” Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD ¶ 20,691, p. 24,791 (No. 12775, 1976). The Commission went on to say that “we will hold the general contractor responsible for violations it could reasonably have expected to prevent or abate by reason of its supervisory capacity.” Id. This holding was characterized as “dictum” in a footnote. Id. at 1188-89 n.6, 1975-76 CCH OSHD at p. 24,791 n.6. Nevertheless, it took on a life of its own during ensuing years as the Commission and some circuit courts relied on these statements to find some general contractors in violation of construction safety standards simply by virtue of their “supervisory capacity.”

See, e.g., Universal Constr. Co. v. OSHRC, 182 F.3d 726 (10th Cir. 1999); R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815 (6th Cir. 1998); Brennan v. OSHRC (Underhill Constr. Corp.), 513 F.2d 1032 (2d Cir. 1975); McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 2000 CCH OSHD ¶ 32,204 (No. 97-1918, 2000); Blount Int’l Ltd., 15 BNA OSHC 1897, 1991-93 CCH OSHD ¶ 29,854 (No. 89-1394, 1992); Gil Haugan, 7 BNA OSHC 2004, 2006, 1979 CCH OSHD ¶ 24,105 (Nos. 76-1512 & 76-1513, 1979). Usually in these situations, the subcontractor responsible for the creation of the hazard and who had employees exposed to the hazard was also cited for the same violation.

The Commission, however, has been told in no uncertain terms by several courts that it is not a policy setting agency. See, e.g., Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 65 (1st Cir. 1985) (analyzing legislative history and determining that “Congress did not intend OSHRC to possess broad powers to set policy . . .”); Marshall v. OSHRC (IMC Chem. Group), 635 F.2d 544, 547 (6th Cir. 1980) (“Whatever ‘policies’ the Commission establishes are indirect. Only those established by the Secretary are entitled to enforcement and defense in court.” (quoting Madden Constr. Inc. v. Hodgson, 502 F.2d 278, 280 (9th Cir. 1974))). According to these decisions, that function belongs to the Secretary. See Madden Constr., 502 F.2d at 280 (“[T]he Act imposes policy-making responsibility upon the Secretary, not the Commission.”). The Secretary’s citation policy on multi-employer construction worksites has a checkered history. Indeed, as the doctrine developed over the years, the Secretary’s application and elucidation of her enforcement policy has been anything but consistent. See IBP Inc. v. Herman (IBP), 144 F.3d 861, 865 n.3 (D.C. Cir. 1998) (detailing doctrine’s “checkered history”). An analysis of the Secretary’s own guidelines regarding the doctrine show the myriad changes in her interpretation as to how the doctrine should be applied. Cf. Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 158 (1991) (reviewing court may consult less formal means of interpreting regulations, such as the OSHA Field Operations Manual, to determine whether the Secretary has consistently applied her position, a factor in determining the reasonableness of Secretary’s position (citing Ehlert v. United States, 402 U.S. 99, 105 (1971))).

In its first Field Operations Manual (“FOM”) issued contemporaneously with § 1910.12(a), OSHA permitted the citation of employers who expose their own employees to hazards as well as employers who create a hazardous condition or supply hazardous equipment, whether or not their own employees were exposed. See OSHA FOM p. VII-6-8 para. 10 (May 20, 1971). The manual was revised six months later to remove the reference to employers who supply unsafe equipment. See OSHA Compliance Operations Manual (“COM”) p. VII-7-8 para. 13 (Nov. 15, 1971). Approximately three years later, OSHA again narrowed its citation policy. In July 1974, OSHA amended the FOM, instructing compliance personnel to cite only an employer on a construction site who has exposed his own employees to an unsafe condition. OSHA FOM ¶ 4380.6 (July, 1974). In essence, OSHA eliminated any practice of making multiple employers, other than exposing employers, responsible for the abatement of the same hazard on construction sites. Indeed, OSHA instructed compliance personnel in this revised version of the FOM, as follows: “An employer will not be cited if his employees are not exposed or potentially exposed to an unsafe or unhealthful condition—even if that employer created the condition.” Id. See also OSHA FOM ¶ 4380.6 (Jan. 1, 1979) (identical language).

Four years later, OSHA again changed its interpretation of the doctrine. In the revised 1983 version of the FOM, the Secretary announced that an employer on a multi-employer worksite could defend by showing that it did not create the hazard, could not correct the hazard, and had made an effort to persuade the controlling employer to correct the hazard, or had alerted employees to the dangers associated with the hazard. OSHA FOM ¶ 265 (Apr. 18, 1983). This version of the FOM specified that compliance personnel should cite the exposing employer(s), unless all exposing employers could establish the defense. In that case, compliance personnel should cite the employer in the best position to correct the hazard. Id. at ¶ 264-65. See also OSHA Instruction CPL 2.42B (June 15, 1989) (identical language).

Eleven years after that, OSHA again changed course and issued the multi-employer policy at issue in this case. In 1994, OSHA revised its compliance instructions and issued a new manual called the Field Inspection Reference Manual or “FIRM”. There, OSHA stated that citations should be issued not only to exposing employers, but also to creating, controlling and correcting employers “whether or not their own employees are exposed . . . .” OSHA Field Inspection Reference Manual (FIRM) § V.C.6 (Sept. 26, 1994). See also OSHA Instruction CPL 2-0.124 (Dec. 10, 1999) (identical language; current multi-employer worksite doctrine).

In sum, OSHA issued § 1910.12(a) in May 1971, and almost simultaneously stated a policy for issuing citations on construction sites. The employer exposing its employees to hazards was to be cited, and employers who created or supplied hazardous equipment could also be cited. OSHA altered this policy six months later to eliminate citations to suppliers of faulty equipment. Citations to hazard-creating employers were eliminated next in 1974, and it was not until 1983 that such employers were returned to the mix, but only if every exposing employer had a defense. Then, in 1994, OSHA changed its policy significantly to allow citation of essentially every employer who might have some association with the hazard, i.e., the exposing employer, the creating employer, the controlling employer, and the correcting employer—the one who could abate the hazard. The Secretary never indicated the reasons behind her multiple changes in policy. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1971) (“agency changing its course must supply a reasoned analysis indicating that prior policies and standards were being deliberately changed, not casually ignored”). Furthermore, at no time throughout this period of over twenty years did the Secretary ever note that § 1910.12(a) contains language which on its face is in apparent conflict with the policy.

It is not as if this conflict has gone unnoticed by the courts or even the Commission. As early as 1995, the United States Court of Appeals for the District of Columbia Circuit noted a “marked tension” between the language of § 1910.12(a) and the Secretary’s multi-employer policy. Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1306-07 (D.C. Cir. 1995). The court went on to say: “Here, the relevant regulation by its terms only applies to an employer’s own employees, seemingly leaving little room for invocation of the [multi-employer] doctrine.” Id. at 1307 (emphasis in the original). The court, after noting that the issue had not been briefed and had not been addressed by any other court, left “to a later date the critical decision of whether to apply the multi-employer doctrine where an employer has been cited under . . . [§ 1910.12].” Id. In 1998, another panel of the same court similarly noted the tension between the regulation and the policy. IBP, 144 F.3d at 865-66. It too determined that it was unnecessary to decide the issue.

Id. at 866.

In a like manner, the Commission in two recent cases noted the existence of the problem but, like the D.C. Circuit, declined to address it for not having been briefed. See Access Equip., 18 BNA OSHC at 1725 n.12, 1999 CCH OSHD at p. 46,780 n.12 (equipment supplier and installer was liable as such notwithstanding its defense that it was not a contractor); McDevitt Street Bovis, Inc., 19 BNA OSHC at 1112-13, 2000 CCH OSHD at p. 48,782-83 (general contractor was responsible for scaffold violation as a controlling employer). As the judge pointed out here, Summit has raised the issue of the conflict or tension between § 1910.12(a) and the existing multi-employer policy in this and a number of other cases. While I firmly believe that cases should be disposed of on narrow grounds wherever possible, I do not see how the issue raised by Summit can be avoided in this case.

The problem I see is the one recognized by the court in Anthony Crane Rental, Inc.: that the limitation in § 1910.12(a) making the compliance obligation of employers for violations of standards applicable only to “his employees” precludes issuance of a citation to a general contractor having none of its employees exposed to the hazard. See Anthony Crane Rental, 70 F.3d at 1306-07. It seems to me that the checkered history of the multi-employer doctrine as expressed in the Secretary’s ever-changing compliance guidelines—be it the FOM, COM, CPL, or FIRM—taken in contrast with a regulation which has not been amended since 1971, results in the latter trumping whatever reliance the Commission can place on the varying nature of the policy. Cf. Christensen v. Harris County, 529 U.S. 576, 587 (2000) (policy statements while “entitled to respect” are not given Chevron deference like promulgated standards) (citing Chevron, USA, Inc. v. NRDC, 467 U.S. 837 (1984)); Union Tank Car Co., 18 BNA OSHC 1067, 1069, 1995 CCH OSHD ¶ 31,445, p. 44,470 (No. 96-0563, 1997) (in assessing reasonableness of Secretary’s interpretation, Commission considers, inter alia, whether her interpretation “‘sensibly conforms to the purpose and wording of the regulation[]’, taking into account ‘whether the Secretary has consistently applied the interpretation embodied in the citation.’” (quoting CF & I Steel Corp., 499 U.S. at 150, 157-58)).

I find unpersuasive the Secretary’s argument in this litigation that the first sentence of the regulation permits or allows a broader class of employers, including those not having employees exposed to the cited hazard, to be cited under the policy.

While I may be sympathetic to such an argument, it simply does not explain why the Secretary has sat on her hands for ten years after being alerted twice to the problem by the D.C. Circuit in Anthony Crane and IBP. She even issued a compliance instruction in 1999 and, while iterating her policy adopted in 1994, failed to address the significant issue and tension mentioned by the court. Beyond that, the Commission has alerted her to the issue in both Access Equipment and McDevitt, yet the Secretary still did not act.

Moreover, to construe the first sentence of § 1910.12(a) as the Secretary argues in this litigation is to ignore or eliminate the language “each of his employees” used in the second sentence. See United States v. Menasche, 348 U.S. 528, 538-39 (1955) (“It is our duty ‘to give effect, if possible, to every clause and word of a statute,’ rather than to emasculate an entire section.” (citations omitted)). In other words, the Secretary improperly suggests the meaning of the regulation would not change even if the words “his employees” were missing. See AFL-CIO v. Chao, 409 F.3d 377, 384 (D.C. Cir. 2005) (“the court is obligated not only to construe the statute as a whole but to give meaning to each word of the statute”). In my view, her interpretation is untenable. The Commission must give effect to the plain language of the regulation, especially in the face of the Secretary’s inconsistent doctrine. See Arcadian Corp., 17 BNA OSHC 1345, 1347, 1995-97 CCH OSHD ¶ 30,856 p. 42,917 (statutory analysis ends if language is plain), aff’d, 110 F.3d 1192 (5th Cir. 1997). See also FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 438-39 (1986) (affording deference to agency’s contemporaneous understanding of ambiguous term where understanding had been fortified by agency’s consistent behavior over the following decades).

For these reasons, I find the Secretary’s reliance on her multi-employer worksite doctrine to cite Summit in this case to be impermissible given the contrary language of her regulation at § 1910.12(a). Accordingly, based on this analysis and that set forth in Commissioner Thompson’s concurring opinion, we vacate the citation.

In this case, the Secretary seeks to enforce the duty of a “controlling employer” pursuant to her current multi-employer citation policy.

The citation alleges a violation of a Part 1926 construction standard, 29 C.F.R. § 1926.451(g)(1)(vii), against Summit Contractors, Inc. (“Summit”), a general construction contractor who, the Secretary concedes, neither created the violative conditions nor exposed any of its own employees to these conditions. For the separate reasons I state below, I join Chairman Railton in vacating the citation because I conclude that 29 C.F.R. § 1910.12(a) prevents the Secretary from citing Summit in this case.

My colleague Commissioner Rogers notes that Commission precedent establishes that section 5 (a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655 (“OSH Act”), grants the Secretary broad discretion to promulgate a multi-employer citation policy. See Arcadian Corp., 17 BNA OSHC 1345, 1352, 1995-97 CCH OSHD ¶ 30,856, p. 42,918 (No. 93-3270, 1995), aff’d, 110 F.2d 1192 (5th Cir. 1997). In fact, more than thirty years ago, the Secretary published, but then withdrew, a Federal Register notice seeking comment on a proposed multi-employer citation policy. See 41 Fed. Reg. 17,639, 17,640 (Apr. 27, 1976).

However, having said that precedent grants the Secretary broad statutory discretion to adopt and enforce specific standards does not a fortiori define the limitations the Secretary voluntarily imposed on that discretion when she adopted a specific standard or set of standards.

Thus, in this case, it remains to be resolved how § 1910.12(a) limits the discretion of the Secretary to issue citations for violations of 29 C.F.R. Part 1926 standards. Section 1910.12(a) states, in pertinent part:

The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards . . . 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.

The Secretary issued § 1910.12(a) pursuant to section 6(a) of the OSH Act in order to adopt the Part 1926 standards originally enforced under the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333 (“Construction Safety Act” or “CSA”).

See Coughlan Constr. Co., 3 BNA OSHC 1636, 1638, 1975-76 CCH OSHD ¶ 20,106, p. 23,923 (Nos. 5303 & 5304, 1975). The scope and application provisions of § 1910.12(a) define the “regulatory universe” to which those construction standards apply. See Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4-5 (1st Cir. 1993). Neither a reviewing court nor the Commission has ever before sought to resolve the “marked tension” between the Secretary’s multi-employer citation policy and § 1910.12(a). See Anthony Crane Rental Inc. v. Reich, 70 F. 3d 1298, 1307 (D.C. Cir. 1995) (recognizing “the marked tension” between the multi-employer citation policy and “the language of § 1910.12[(a)] . . . that ‘[e]ach employer shall protect the employment and places of employment of each of his employees,’” but failing to reach the issue).

I agree with my colleagues that the Commission should address this “tension” herein, which has been squarely presented, thoroughly briefed, and comprehensively analyzed during oral argument.

Summit argues that the “his employees” phrase of the second sentence of § 1910.12(a) describes a construction employer’s duty that is limited to his own employees. The Secretary argues that the first sentence describes a duty that is as broad as the working conditions of all employees on the construction site, effectively ignoring the “his employees” clause of the second sentence. To avoid the dilemma described in the Hindu parable of the blind observers disagreeing about the shape of an elephant after each grasped only his trunk, tusk or leg, I would not limit my perception of possible reasonable interpretations of the scope and application of § 1910.12(a) by focusing on only one clause or sentence. Read together, the two sentences of the regulation require an employer to “protect the employment and places of employment of each of his employees . . . by complying with [Part 1926 standards]” applicable to “every employment and place of employment of every employee engaged in construction work.” See 29 C.F.R. § 1910.12(a). Reading the provision in a manner consistent with the universal interpretation of the general duty clause,

it is clear and unambiguous on the face of the regulation that the duty of a construction employer under § 1910.12(a) is owed to protect only “his employees”, permitting only an employment-based enforcement scheme. What remains to be determined is whether a “controlling employer” theory of liability, defined by the Secretary as an enforcement scheme grounded in contract or quasi-contract, fits within the full scope and application of this “employment-based” duty under § 1910.12(a) of a construction employer to “protect . . . his employees” by complying with the Part 1926 standards.

The full scope and application of the construction employer’s § 1910.12(a) employment-based duty can be determined by analyzing the agency’s original intent when it drafted and began enforcement of the regulation. See Am. Waterways Operators, Inc. v. United States, 386 F. Supp. 799, 803-04 (D.D.C. 1974) (construction of act by the agency charged with its administration is accorded great weight if reasonable, but “of higher significance” is the construction of the act by those who participated in the act’s drafting and who directly made their views known to Congress), aff’d, 421 U.S. 1006 (1975). The first construction of a new act by the body charged with enforcing it is “entitled to more than usual deference accorded an agency’s interpretation” of an act or regulation. See Power Reactor Dev. Co. v. Int’l Union of Elec. Workers, 367 U.S. 396, 408 (1961) (contemporaneous construction “by the men charged with the responsibility of setting its machinery in motion” is entitled to particular respect); Nat’l Cable Television Ass’n v. Copyright Royalty Tribunal, 689 F.2d 1077, 1081 (D.C. Cir. 1982) (affording “more than the usual deference due an agency’s interpretation of its enabling act” to Copyright Royalty Tribunal’s reading of the Copyright Act because it “was the first construction of a new act by the body charged with the responsibility for setting its machinery in motion.”). The regulation’s preamble says nothing about the Secretary’s original intent. See 36 Fed. Reg. 10,466 (May 29, 1971). However, the Secretary did indicate her original intent to limit enforcement of Part 1926 standards, through promulgation of § 1910.12(a), against a class of employers similar to non-creating non-exposing “controlling employers” as defined in the Secretary’s current multi-employer citation policy. Her intent is evident in two distinct actions: First, the Secretary excluded the Construction Safety Act duties of the prime (general) contractor, which are parallel to “controlling employer” duties, when she adopted the Construction Safety Act standards as OSH Act standards. Second, the Secretary precluded enforcement of any duties against the general contractor parallel to “controlling employer” duties when she issued the original enforcement guidelines directing citations at multi-employer construction sites.

The first demonstration of the Secretary’s original intent is the striking contrast between the language of the second sentence of § 1910.12(a), which imposes an OSH Act duty on construction employers to protect their own employees through compliance with Part 1926 standards, and the language of § 1926.16, which imposed a Construction Safety Act duty on prime (general) contractors to protect the employees of subcontractors through assuring their compliance with the same standards. Indeed, contrary to the assertion of my colleague Commissioner Rogers at footnote 4, § 1910.12(a) was plainly intended as a limit. It was intended to limit the Secretary’s discretion to impose under the OSH Act the duty under the CSA of prime (general) contractors at construction sites. The Secretary’s intent to limit her discretion to enforce the adopted standards is clear from the dramatic distinction between what the Secretary had written as CSA regulations and standards, and the limited parts she adopted through § 1910.12(a). On May 29, 1971, in accordance with section 6(a) of the OSH Act, the Secretary promulgated § 1910.12. Section 1910.12 adopted as occupational safety and health standards those standards that had been issued under the Construction Safety Act in 29 C.F.R. Part 1518 (now 29 C.F.R. Part 1926).

Through § 1910.12, the Secretary made “the standards (substantive rules)” published in Subpart C of Part 1926 applicable to construction employers in general, but left Subparts A and B of Part 1926 applicable only to federal contractors. Notably, § 1926.16 in Subpart B, expressly imposes liability on the prime (general) contractor for violations by subcontractors. The failure of the Secretary to adopt § 1926.16 through § 1910.12,

or to use similar language when describing an employer’s duties under the OSH Act in § 1910.12(a), is indication that she intended the duties of an employer (in this case, a prime (general) contractor) under the OSH Act to be more limited than the duties of a prime (general) contractor under the Construction Safety Act. Commissioner Rogers’ footnote 4 is correct to the extent she concedes the text of § 1910.12(c) is a clear statement of the reason for the Secretary’s failure to incorporate Subparts A and B of 1926, i.e., the contractually-based enforcement scheme of the CSA was inconsistent with the Secretary’s construction of an employment-based enforcement scheme under the OSH Act. This concedes the point that if the Secretary had originally intended to exercise discretion under section 5(a)(2) of the OSH Act to cite general contractors at multi-employer construction sites on a contractually-based

“controlling employer” theory, she could have done so by adopting the enforcement scheme of § 1926.16, absent the federal contractor predicate, pursuant to section 6(a) of the OSH Act.

The second demonstration of the Secretary’s original intent is the exclusion of a “controlling employer” basis for citations from the Secretary’s original multi-employer citation policy. Almost simultaneously with the promulgation of § 1910.12(a), the Secretary adopted her first Field Operations Manual (“FOM”), originally called the “Compliance Operations Manual”.

The FOM published guidelines for OSHA’s field officers charged with conducting workplace inspections to enforce, inter alia, Part 1926 standards. According to the original FOM, an employer may be cited at a multi-employer construction worksite for exposing its own employees to a hazard, even if it did not create the hazard, p.VII-7 ¶ 10c; or by creating a hazard, even if it did not expose its own employees to that hazard, p.VII-7 ¶ 10b. The simultaneous production by OSHA of two separate documents (the FOM and § 1910.12(a)), both limiting the Secretary’s enforcement of Part 1926 standards, cannot be dismissed as a mere unrelated “coincidence.” The May 1971 FOM is an indicator of the original intent of the drafters of § 1910.12(a) because: (1) the Secretary contemporaneously drafted both § 1910.12(a) and the FOM guidelines for enforcement of the safety and health standards that were adopted by § 1910.12(a); (2) the enforcement guidelines in the FOM could not yet have been influenced by interpretations of the Secretary’s citation authority by the newly-formed Occupational Safety and Health Review Commission; and (3) the FOM explicitly included guidelines for citations, inter alia, at multi-employer construction sites under the very standards adopted by § 1910.12(a). The original FOM, as well as the amendment to the FOM six months later, both set forth the two duties of an employer at a multi-employer construction worksite: (1) to not expose its employees to a hazard; and (2) to not create violative conditions.

I find it dispositive to a determination of the scope and application of the employer’s duty to “protect … his employees” under § 1910.12(a) that not only did the Secretary fail to adopt the “controlling employer” concept from the CSA when she adopted its body of standards, neither did she in her original enforcement guidelines direct field personnel to cite non-creating, non-exposing, controlling employers at a multi-employer construction worksite. In fact, during the next dozen years of enforcement of the OSH Act—one-third of OSHA’s statutory life—official agency guidelines made it clear that the Secretary’s power to cite an employer at a multi-employer worksite extended only to creating or exposing employers; controlling employers were never mentioned. See OSHA Compliance Operations Manual (“COM”) p. VII-7-8 para. 13 (Nov. 15, 1971) (citation of creating or exposing employers); OSHA FOM ¶ 4380.6 (July, 1974) (citation of exposing employers only); OSHA FOM ¶ 4380.6 (Jan. 1, 1979) (same). It was not until 1983, twelve years after the Act’s effective date, that OSHA for the first time directed its compliance officers to consider citation of a controlling employer. See OSHA FOM ¶ 265 (Apr. 18, 1983). That expansion then was limited to the narrow circumstances where a general contractor is informed of, but fails to abate, a hazard that cannot be abated by any exposing employer.

The Commission will normally defer to the Secretary’s reasonable interpretation of a regulation. See Martin 499 U.S. at 150. I find the Secretary’s original multi-employer citation policy, allowing citation of creating as well as exposing employers, is consistent with § 1910.12(a)’s requirement that an employer must “protect the employment and places of employment of his employees”. It also comports with the purpose of the Act.

The creation of violative employment conditions puts all employees at risk. Here I agree with the statement made at oral argument by Summit’s amicus that the Secretary recognized when she drafted § 1910.12(a) and the original FOM that reasonably predictable exposure generally runs with creation of a hazard.

On the other hand, as Chairman Railton adequately explains, deference to OSHA’s “checkered history” of reinterpretation of the multi-employer citation policy after 1971 would yield an inconsistent, and therefore unreasonable interpretation of § 1910.12(a). Moreover, the Secretary cannot in this case simply ignore a regulatory limitation on her discretion, albeit that it was voluntarily imposed. As the regulation now exists, the agency has ab initio limited its discretion to expand the duties of employers beyond those duties originally intended when the Secretary adopted the Part 1926 standards. Unless and until the agency modifies or repeals the employment-based limitations imposed by the regulation, it may not by simple policy directive remove the substantive limitations on official discretion that now exist. In Vitarelli v. Seaton, the Supreme Court held that even agencies with broad discretion must adhere to internally promulgated regulations limiting the exercise of that discretion. Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959). See also Graham vs. Ashcroft, 358 F.3d 931, 932 (D.C. Cir 2004) (“It is well settled that an agency, even one that enjoys broad discretion, must adhere to voluntarily adopted, binding policies that limit its discretion.” (citing Padula vs. Webster, 822 F.2d 97, 10 (D.C. Cir. 1987))).

In this case, it is undisputed that Summit is a non-creating, non-exposing employer. In other words, the only basis for issuing the citation to Summit is that Summit is a “controlling employer” under the Secretary’s current multi-employer citation policy. As explained above, however, I find § 1910.12(a) cannot be interpreted to permit citation for a violation of a Part 1926 standard of a controlling employer who neither created the violative conditions nor exposed his employees to the hazard.

For the foregoing reasons, I concur with the Chairman’s conclusion that § 1910.12(a) prevents the Secretary from enforcing her current multi-employer citation policy to cite a non-exposing non-creating employer such as Summit, for violation of § 1926.451(g)(1)(vii). Therefore, I join Chairman Railton in vacating the citation.

By their decision today, my colleagues have reversed over thirty years of Commission precedent that has had the effect of enhancing worker safety on construction worksites with multiple employers. In voting as they have to eliminate the Secretary’s ability to cite general contractors under her multi-employer enforcement policy, my colleagues have deprived the Secretary of a very important tool to hold accountable those often in the best position to ensure safety on construction worksites.

The rejection of the multi-employer precedent has at least three additional undesirable results. First, it usurps for the Review Commission the Secretary’s policy-making role under the Occupational Safety and Health Act (“the Act”). Second, it trivializes