” Summit Contractors, Inc., Docket No. 03-1622var gAgent = navigator.userAgent.toLowerCase()var gWindows = ( (gAgent.indexOf( \”win\” ) != -1 ) || ( gAgent.indexOf( \”16bit\” ) != -1 ) )var gIE = ( gAgent.indexOf( \”msie\” ) != -1 )var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )var floatwnd = 0var WPFootnote1 = ‘1 Section 1926.451(g)(1)(vii) states:\\For all scaffolds not otherwise specified in paragraphs (g)(1)(i) through (g)(1)(vi)\\of this section, each employee shall be protected by the use of personal fall arrest\\systems or guardrail systems meeting the requirements of paragraph (g)(4) of this\\section.\\’var WPFootnote2 = ‘2 This case was consolidated solely for purposes of oral argument before the Commission\\with Docket Number 05-0839, another case involving Summit. \\’var WPFootnote3 = ‘3 All Phase did not contest the citations and paid the penalties proposed by the Secretary.\\’var WPFootnote4 = ‘4 In effect, the Commission in 1976 was stating a policy decision. At that time some\\Commissioners believed they were charged under the Act to set policy. See, e.g., Cuyahoga\\Valley Ry. Co., 10 BNA OSHC 2156, 1982 CCH OSHD \u00b6 26,296 (No. 76-1188, 1982), aff\u2019d,\\748 F.2d 340 (6th Cir. 1984), rev\u2019d, 474 U.S. 3 (1985) (Supreme Court reversed\\Commission and circuit court\u2019s decision that Secretary cannot unilaterally withdraw citation\\without Commission approval); Am. Cyanamid Co., 8 BNA OSHC 1346, 1980 CCH OSHD\\\u00b6\u00a024,424 (No. 77-3752, 1980), rev\u2019d, 647 F.2d 383 (3d Cir. 1981) (circuit court reversed\\Commission decision holding that Commission had authority to determine whether\\abatement has occurred under a settlement agreement); Sun Petroleum Products Co., 7 BNA\\OSHC 1306, 1979 CCH OSHD \u00b6 23,502 (No. 76-3749, 1979), aff\u2019d on other grounds, 622\\F.2d 1176 (3d Cir. 1980) (circuit court held that Commission\u2019s role in settlement process\\was limited where Commissioners split on whether Commission had authority to reject\\settlement agreement); IMC Chem. Group, 6 BNA OSHC 2075, 1978 CCH OSHD \u00b6 23,149\\(No. 76-4761, 1978), rev\u2019d, 635 F.2d 544 (6th Cir. 1980) (circuit court reversed\\Commission\u2019s decision that, after notice of contest has been filed, Secretary may not\\withdraw citation without Commission approval).\\’var WPFootnote5 = ‘5 In its most recent multi-employer decision, the United States Court of Appeals for the\\Tenth Circuit noted the D.C. Circuit\u2019s decision in IBP but did not address the issue of\\conflict between the multi-employer policy and \u00a7\u00a01910.12(a). Universal Constr. Co. v.\\OSHRC, 182 F.3d 726, 729-30 (10th Cir. 1999).\\’var WPFootnote6 = ‘6 Commissioner Rogers finds the regulation to be ambiguous. I do not agree that the\\regulation is ambiguous. It seems to me that both sentences are plain in their meaning. \\Here, I agree with the D.C. Circuit that the meaning of the regulation is \u201cplain\u201d and that the\\regulation \u201cby its terms only applies to an employer\u2019s own employees.\u201d See Anthony Crane,\\70 F.3d at 1303, 1307 (emphasis in the original). See also Sec\u2019y v. Simpson, Gumpertz &\\Heger, Inc., 3 F.3d 1, 4 (1st Cir. 1993) (holding that meaning of \u00a7\u00a01910.12(a) is \u201cplain\u201d). \\The first sentence makes the construction safety standards applicable to \u201cevery employment\\and place of employment of every employee engaged in construction work.\u201d The second\\sentence makes each employer engaged in construction work responsible for \u201chis\\employees.\u201d Were it otherwise, deference to the Secretary\u2019s interpretation is likely owed,\\as Commissioner Rogers states. \\’var WPFootnote7 = ‘7 The Secretary\u2019s position is also weakened by the contrast between 29 C.F.R. \u00a7 1926.16 and\\\u00a7\u00a01910.12(a). Section 1926.16, which was promulgated at nearly the same time as\\\u00a7\u00a01910.12(a), applies to government jobs under the Contract Work Hours and Safety\\Standards Act. See 36 Fed. Reg. 1802 (Feb. 2, 1971); 36 Fed. Reg. 7340 (Apr. 17, 1971)\\(adopting Part 1926). Section 1926.16, in contrast to \u00a7\u00a01910.12(a), contains language\\extending an employer\u2019s liability beyond his own employees. The fact that such language\\is absent from \u00a7 1910.12(a) is further evidence that \u00a7 1910.12(a) should be read as limiting\\an employer\u2019s liability to \u201chis employees.\u201d \\’var WPFootnote8 = ‘1 The definition of a \u201ccontrolling employer\u201d is found in Section X.E.1 of OSHA\u2019s current\\multi-employer citation policy: \u201cAn employer who has general supervisory control over the\\worksite, including the power to correct safety violations itself or require others to correct\\them. Control can be established by contract, or in the absence of . . . contractual provisions,\\by the exercise of control in practice.\u201d OSHA Instruction CPL 2-0.124 at X.E.1 (Dec. 10,\\1999). The controlling employer\u2019s \u201cduty of reasonable care\u201d is set forth in Sections X.E.3\\and X.E.4. Id. at X.E.3-4.\\’var WPFootnote9 = ‘2 See generally Anning-Johnson Co. v. OSHRC, 516 F.2d 1081, 1091-92 (7th Cir. 1975)\\(Tone, J., concurring).\\’var WPFootnote10 = ‘3 Nat\u2019l Consensus Standards and Established Fed. Standards, 36 Fed. Reg. 10,466, 10,469\\(May 29, 1971). Former Part 1518 of Title 29, C.F.R. was subsequently redesignated as Part\\1926. Redesignation, 36 Fed. Reg. 25,232 (Dec. 30, 1971).\\’var WPFootnote11 = ‘4 On remand from the D.C. Circuit, the Commission found that Anthony Crane Rental was\\an exposing employer and so failed to reach any conclusion regarding the relationship\\between \u00a7\u00a01910.12(a) and the multi-employer citation policy. Anthony Crane, 17 BNA\\OSHC 2107, n.1, 1995-97 CCH OSHD \u00b6 31,251, p. 43,840 n.1 (No. 91-556, 1997). \\’var WPFootnote12 = ‘5 In two prior cases, the Commission declined to rule on the issue of whether \u00a7\u00a01910.12(a)\\is consistent with, or has any affect on, the multi-employer citation policy because the issue\\had not been briefed. However, in doing so, the Commission made no suggestion that the\\issue had been foreclosed or previously decided. See McDevitt Street Bovis, Inc., 19 BNA\\OSHC 1108, 1112-13, 2000 CCH OSHD \u00b6 32,204 p. 48,782-83 (No. 97-1918, 2000)\\(declining to address issue because Commission directed reconsideration on the \u201cvery\\narrow question of whether adverse circuit law precludes application of Commission\\precedent\u201d; Commissioner Visscher dissented because he \u201cshare[d] the D.C. Circuit\u2019s\\concern as to the legal basis for multi-employer liability.\u201d); Access Equip. Sys. Inc., 18 BNA\\OSHC 1718, 1725-26 n.12, 1999 CCH OSHD \u00b6\u00a031,821, p. 46,780 n.12 (No. 95-1449, 1999)\\(declining to address issue because it was neither argued nor briefed by the parties, nor ever\\considered by any court that adopted the multi-employer citation policy). Cf., e.g., Underhill\\Constr. Corp. v. OSHRC, 526 F. 2d 53, 54 n.3 (2d Cir. 1975) (interpretation of the \u201ceffective\\date\u201d issue raised under \u00a7 1910.12(d) not precluded by prior decision of the instant court\\enforcing identical standard against same employer where the parties previously \u201cneither\\briefed nor argued the [effective date] issue.\u201d). The reluctance of the courts and the\\Commission in the past to attempt to unravel the perplexing legal maelstrom surrounding\\this issue may suggest that resolution of the issue may ultimately depend on rulemaking by\\the Secretary.\\’var WPFootnote13 = ‘6 The Secretary concedes that citation under the language of section 5(a)(1), semantically\\identical to the second sentence of \u00a7\u00a01910.12(a), is limited to exposing employers. See\\OSHA Field Inspection Reference Manual \u00a7 III.C.2.c.(2)(a)2 (Sept. 26, 1994) stating: \u201cThe\\employees exposed to the Section 5(a)(1) hazard must be the employees of the cited\\employer.\u201d See also Letter to James H. Brown from OSHA Director of Construction Russell\\B. Swanson (July 25, 2003) (relying upon 1999 Multi-Employer Citation Policy: \u201c[O]nly\\exposing employers can be cited for General Duty Clause violations.\u201d). See, e.g., Access\\Equipment, 18 BNA OSHC at 1724; 1999 CCH OSHD at p. 46,778.\\’var WPFootnote14 = ‘7 Former Part 1518 of Title 29, C.F.R. was subsequently redesignated as Part 1926. 36 Fed.\\Reg. 25,232 (1971). In addition, on February 17, 1972, the Secretary published a Federal\\Register notice clarifying \u201cwhich regulations had been adopted under OSHA by the May 29,\\1972 promulgation[.] [T]he Secretary added a new paragraph to the OSHA regulations\\entitled \u2018Construction Safety Act distinguished.\u2019\u201d Underhill, 526 F.2d at 56. Specifically,\\the Secretary added \u00a7\u00a01910.12(c).\\’var WPFootnote15 = ‘8 For a period of two years after the effective date of the OSH Act, the Secretary had the\\authority to \u201cpromulgate as an occupational safety or health standard any national consensus\\standard, and any established Federal standard, unless he determines that the promulgation\\of such a standard would not result in improved safety or health . . . .\u201d 29 U.S.C. \u00a7 655. The\\definition of \u201cstandard\u201d and the phrase \u201cestablished Federal standards\u201d \u201cmake clear that the\\Secretary intended to adopt, indeed had the statutory authority to adopt, only those\\provisions in the CSA regulations which require \u2018conditions, or the adoption or use of one\\or more practices, means, methods, operations, or processes, reasonably necessary or\\appropriate to provide safe or healthful employment and places of employment.\u2019\u201d See\\Underhill, 526 F.2d at 57.\\’var WPFootnote16 = ‘9 \u201cControl [constituting an employer as a \u201ccontrolling employer\u201d] can be established by\\contract or, in the absence of explicit contractual provisions, by the exercise of control in\\practice.\u201d OSHA Instruction CPL 2-0.124 at X.E.1. In short, control can be established by\\contract or quasi-contract.\\’var WPFootnote17 = ’10 The FOM was published on May 20, 1971, and \u00a7 1910.12(a) appeared in the Federal\\Register nine days later on May 29, 1971. \\’var WPFootnote18 = ’11 Significantly, beginning in 1983 and for years after that, OSHA continued to proscribe\\citations against non-exposing employers except in those limited circumstances when \u201cthe\\exposing employer . . . did not create the hazard; . . . did not have the authority or ability to\\correct the hazard; made an effort to persuade the controlling employer to correct the hazard;\\[and] . . . has taken alternative means of protecting employees from the hazard . . . .\u201d See\\OSHA FOM \u00b6 265 (April 18, 1983). \\’var WPFootnote19 = ’12 That is, an employer owes a duty to \u201chis employees\u201d to refrain from creating hazardous\\working conditions and to prevent \u201chis employees\u201d from being exposed to hazardous\\conditions to assure that \u201cevery working man and woman in the Nation has safe and\\healthful working conditions.\u201d 29 U.S.C. \u00a7 651(b).\\’var WPFootnote20 = ’13 See Transcript of Oral Argument, Argument of Arthur G. Sapper, Esq., on behalf of\\National Association of Home Builders, Contractor\u2019s Association of Greater New York;\\Texas Association of Builders; and Greater Houston Builders Association, Amici at 17:1 \u2013\\23. Mr. Sapper is correct that while it is possible under current Commission case law for a\\creating employer to create a hazard without exposing any of its own employees to the\\created hazard,\u00a0as in the case of excavating an unshored trench, that would appear to be the\\rare case. See Smoot Construction, 21 BNA OSHC 1555, 1557, 2005 CCH OSHD \u00b6 32,829,\\p. 52,723 (No. 05-0652, 2006); Flint Engineering & Constr. Co., 15 BNA OSHC 2052,\\2055, 1993 CCH OSHD \u00b6 29,923, p. 40,853 (No. 90-2873, 1992). Indeed, the Commission\\has\u00a0affirmed citations against so-called \u201cnon-exposing\u201d creating employers when, on closer\\review, the employees of the creating employer, originally found to have been unexposed,\\were in fact exposed to the hazard. See, e.g., Anthony Crane Rental, 17 BNA OSHC 2107,\\1995-97 CCH OSHD \u00b6 31,251 (No. 91-556, 1997).\\’var WPFootnote21 = ’14 My colleague Commissioner Rogers suggests interpretation of \u00a7\u00a01910.12(a) as requiring\\employment-related enforcement leads to numerous situations where no one on a\\construction site will have both the practical ability and legal obligation to ensure safety\\compliance. This suggestion fails to explain why the exposing construction subcontractor\\cannot avail itself of contractual remedies to ensure non-violative working conditions for its\\employees.\\’var WPFootnote22 = ‘1 The Chairman states that the Commission and, by implication, the various Circuit Courts,\\were effectively creating \u201cpolicy\u201d in upholding the multi-employer doctrine as applied to\\general contractors. While the discussion in Grossman Steel was characterized as dictum,\\the context was the adjudication of the Secretary\u2019s citation where the Commission was\\explaining the contours of the Secretary\u2019s permissible authority to hold employers liable\\under the multi-employer doctrine. Grossman Steel, 4 BNA OSHC at 1188-89 n.6, 1975-76\\CCH OSHD at p. 24,791 n.6. It is the Secretary\u2014the policy maker\u2014who chooses whether\\to cite an employer under the doctrine, not the Commission.\\’var WPFootnote23 = ‘2 The multi-employer worksite doctrine is also consistent with the common law. The\\doctrine\u2019s focus on control is echoed in the rule set forth at \u00a7 414 of the Restatement\\(Second) of Torts (1965) which states that an employer is liable for the negligence of its\\contractor where the employer retains control of any part of the work performed by the\\contractor and fails to exercise that control with reasonable care. See Restatement (Second)\\of Torts \u00a7 414 cmt. a (1965). \\This view also finds support in the cases, under which general contractors may be\\subject to various types of direct and vicarious liability. See, e.g., Ghaffari v. Turner Constr.\\Co., 699 N.W.2d 687, 694 (Mich. 2005) (as overall coordinator of construction activity,\\general contractor is \u201cbest situated to ensure workplace safety at the least cost\u201d); Shannon\\v. Howard S. Wright Constr. Co., 593 P.2d 438, 441-45 (Mont. 1979) (general contractor\\had duty to provide employees of subcontractors a safe place to work because it retained\\control over working conditions at site); Kelley v. Howard S. Wright Constr. Co., 582 P.2d\\500, 505-06 (Wash. 1978) (general contractor had duty, within scope of control over work,\\to provide safe place of work); Funk v. Gen. Motors Corp., 220 N.W.2d 641, 646 (Mich.\\1974) (holding general contractors liable for worksite safety makes it more likely that\\subcontractors or general contractor will implement safety precautions; often general\\contractor is only entity in position to provide expensive safety measures that will protect\\employees of multiple subcontractors, and subcontractors may be unable to rectify\\situations).\\’var WPFootnote24 = ‘3 Section 1910.12(a) 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. \\’var WPFootnote25 = ‘4 My colleague Commissioner Thompson suggests that \u00a7 1910.12(c) supports his view that\\\u00a7\u00a01910.12(a) was intended as a limit on an employer\u2019s duty to comply with construction\\standards. In that regard, he contends that is why the Secretary did not incorporate Subparts\\A and B of Part 1926 (including the provisions of \u00a7 1926.16 with respect to the\\responsibilities of a \u201cprime contractor\u201d) as OSHA standards. Rather, my colleague seems\\to prefer his own speculative reason for the Secretary\u2019s action, instead of the reason the\\Secretary actually articulated in the text of \u00a7 1910.12(c) itself: \u201cSubparts A and B have\\pertinence only to the application of section 107 of the Contract Work Hours and Safety\\Standards Act (the Construction Safety Act). . . . [because certain Construction Safety Act\\terms and concepts, such as the interpretation of the statutory term \u2018subcontractor\u2019 in \u00a7\\1926.13 have] no significance in the application of the [Occupational Safety and Health]\\Act, which was enacted under the Commerce Clause and which establishes duties for\\\u2018employers\u2019 which are not dependent for their application upon any contractual relationship\\with the Federal Government or upon any form of Federal financial assistance.\u201d\\My colleague also mischaracterizes the Secretary\u2019s explanation of the distinction\\between the two statutory schemes. Contrary to Commissioner Thompson, the Secretary\\was not foreswearing consideration of private contractual relationships between general\\contractors and subcontractors for Occupational Safety and Health Act enforcement\\purposes by the language of \u00a7 1910.12(c). Rather, she was indicating that the nexus of\\jurisdiction under the Occupational Safety and Health Act (unlike with the Construction\\Safety Act) was not predicated upon a contract involving the Federal government. \\Furthermore, as my colleague concedes by citing the language of CPL 2-0.124 in n.9 the\\Secretary does not rely solely on a contract to show control in multi-employer situations.\\\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Thus the Secretary\u2019s failure to incorporate \u00a7 1926.16 as an Occupational Safety and\\Health Act standard is of no moment, contrary to the suggestions by both of my colleagues. \\As the Secretary explained, the unincorporated provisions were necessary to address terms\\and concepts from the Construction Safety Act in light of the fact that the jurisdictional\\predicate of the Construction Safety Act was a contractual relationship involving the Federal\\government, but they had no \u201cpertinence\u201d to the Occupational Safety and Health Act, which\\had a different jurisdictional predicate.\\’var WPFootnote26 = ‘5 See Beverly Healthcare-Hillview, 21 BNA OSHC 1684, 1688, 2006 CCH OSHD \u00b6\u00a032,845,\\pp. 52,838-39 (No. 04-1091, 2006) (consolidated) (Rogers, Commissioner, partial\\concurrence and dissent), appeal docketed, No. 06-4810 (3d Cir. Nov. 17, 2006); Cagle\u2019s\\Inc., 21 BNA OSHC 1738, 1746, 2006 CCH OSHD \u00b6\u00a032,846, p. 52,849 (No. 98-0485, 2006)\\(Rogers, Commissioner, partial concurrence and dissent), appeal docketed, No. 06-16172\\(11th Cir. Nov. 28, 2006); U.S. Postal Serv., 21 BNA OSHC 1767, 1776 (No. 04-0316,\\2006) (Rogers, Commissioner, dissent).\\’var WPFootnote27 = ‘6 My colleague, Commissioner Thompson, cites Vitarelli v. Seaton, 359 U.S. 535 (1959), to\\support his argument that the Secretary somehow violated a self-imposed limitation by\\applying her multi-employer policy to controlling contractors. The Vitarelli case is easily\\distinguishable. In Vitarelli, the Department of Interior specifically bound itself to certain\\procedural requirements for the dismissal of employees on security grounds and relied upon\\those requirements as authority in its actual dismissal notice of Vitarelli. Id. at 538-40. The\\Court, not surprisingly, found the agency was bound by its own internal procedural\\requirements for the dismissal of an employee on security grounds. Id. Here, in contrast,\\despite my colleague\u2019s speculation, there is no evidence that the Secretary intended \u00a7\\1910.12(a) to have relevance to the multi-employer question before us; even if \u00a7 1910.12(a)\\did have relevance, it does not operate as a limit on her authority under section 5(a)(2) of the\\Act to cite controlling contractors; and, in any event, in citing employers under the multi-employer policy, the Secretary does not rely on \u00a7 1910.12(a) as her authority.\\’var WPFootnote28 = ‘7 To be sure, the D.C. Circuit has questioned the validity of the multi-employer worksite\\doctrine, although it has scrupulously avoided reaching the issue. See IBP, Inc. v. Herman,\\144 F.3d 861, 865-66 (D.C. Cir. 1998) (non-construction case). That circuit has observed\\that the doctrine has a \u201ccheckered history\u201d, and that it \u201csee[s] tension\u201d between the doctrine\\and the language of the statute and regulations.\u201d Id. at 865 & n.3. See also Anthony Crane\\Rental, Inc. v. Reich, 70 F.3d 1298, 1306 (D.C. Cir. 1995) (noting that \u201cit is not clear to us\\that the multi-employer doctrine is consistent with the Secretary\u2019s own construction industry\\regulation, 29 C.F.R. \u00a7 1910.12(a)\u201d because \u201cthe language of \u00a7\u00a01910.12, which says that\\\u2018[e]ach employer shall protect the employment and places of employment of each of his\\employees\u2019 . . . is in marked tension with the multi-employer doctrine we are asked to apply\\here.\u201d (emphasis in original)). However, since the D.C. Circuit has never reached the\\validity of the doctrine, there is no legal basis to overturn over thirty years of our own\\precedent based on concerns expressed in dicta with respect to issues the court did not\\address. Furthermore, in Universal, the Tenth Circuit considered the concerns expressed by\\the D.C. Circuit in Anthony Crane and IBP, but did not view them as sufficient to cast aside\\the Secretary\u2019s interpretation. Universal, 182 F.3d at 731. Thus, it appears that the Tenth\\Circuit did not view \u00a7 1910.12(a) as a bar to the Secretary\u2019s exercise of the multi-employer\\policy.\\The Chairman suggests that both the D.C. Circuit, in Anthony Crane Rental, and the\\First Circuit, in Secretary v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1 (1st Cir. 1993), had\\found the meaning of \u00a7 1910.12 \u201cplain\u201d with respect to its effect on the Secretary\u2019s multi-employer policy. In fact, both circuits were addressing a different issue – the meaning of\\\u201cplaces of employment\u201d for the purpose of determining whether the worksites were \u201cplaces\\of employment\u201d for the respective respondents\u2019 employees which the respondents had a duty\\to protect based on their employees\u2019 presence on the site. See Anthony Crane Rental, 70\\F.3d at 1303, Simpson, Gumpertz & Heger, 3 F.3d at 5. Of course, despite the Chairman\u2019s\\implication, the D.C. Circuit did not address the validity of the multi-employer policy in\\Anthony Crane Rental.\\\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Fifth Circuit alone has seemingly rejected the theory of multi-employer liability,\\although it has not reviewed a relevant Commission decision since the Commission accepted\\the doctrine. Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 712 (5th Cir. Unit A 1981)\\(tort case). See also Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (1975) (per\\curiam); McDevitt, 19 BNA OSHC at 1110, 2000 CCH OSHD at p. 48,781 (No. 97-1918,\\2000). But that is the clear minority view. See Universal, 182 F.3d at 731 (no Fifth Circuit\\case \u201cpersuasively explain[s] the basis for rejection of the [multi-employer] doctrine.\u201d);\\United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 983 (7th Cir. 1999) (\u201cMelerine . . . does\\not persuade us that the doctrine is an inappropriate by-product of the Act\u2019s language or\\purpose.\u201d).\\\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0While the Fourth Circuit had affirmed an early Commission decision rejecting the\\Secretary\u2019s use of the multi-employer doctrine, Brennan v. Gilles & Cotting, Inc., 504 F.2d\\1255 (4th Cir. 1974), it did so based on deference to the Commission. As the D.C. Circuit\\has pointed out, IBP, Inc., 144 F.3d at 865-66 n.3, that decision has effectively been\\overruled by the Supreme Court\u2019s subsequent decision in Martin v. OSHRC, 499 U.S. 144\\(1991).\\’var WPFootnote29 = ‘\u00a0\u00a0\u00a0Superintendent Guevara testified that thirty to forty subcontractors worked on the project (Tr. 104). However,\\Summit\u2019s list of subcontractors shows only fifteen subcontractors and nine vendors (Exh. C-6). \\’var WPFootnote30 = ‘\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0During the hearing, Summit speculated that the exposed employees were independent contractors hired by All\\Phase (Tr. 26, 79). However, this was not established or argued in its posthearing brief. Therefore, the exposed\\employees are considered employed by All Phase. This was CO Watson\u2019s understanding during his inspection (Tr.47). \\Also, the subcontract agreement requires Summit to approve in writing the hiring of contractors by subcontractors (Exh.\\C-8, Art. 8). Summit offered no written approvals.\\’var WPFootnote31 = ‘\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In its answer, Summit asserts an infeasibility defense. Other than its lack of control argument, Summit does\\not argue, and the record does not support, that fall protection for employees on the scaffold was technically or\\economically infeasible. Also, there is no showing that the effect of implementing measures against All Phase to assure\\compliance would adversely affect Summit\u2019s financial condition. Summit\u2019s affirmative defense of infeasibility is\\rejected.\\’var WPFootnote32 = ‘\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit has a history of cases before Commission judges on the issue of the multi-employer worksite doctrine. \\Summit\u2019s alleged violations for the most part were vacated on the basis of lack of knowledge and, in one case, lack of\\control. See Summit Contractors, Inc., 20 BNA OSHC 1118 (No. 01-1891, 2003) (ALJ Spies) (after rejecting arguments\\that the multi-employer worksite doctrine contravenes the Act and that Summit lacked sufficient control, the citation was \\vacated because of Summit\u2019s lack of knowledge of the unsafe condition); Summit Contractors, Inc., 19 BNA OSHC\\2089 (No. 01-1614, 2002) (ALJ Schoenfeld) (vacated citation based on Summit\u2019s lack of sufficient authority to control\\the manner a subcontractor complied with the safety requirements and finding that the authority to terminate a\\subcontract is not a sufficient basis to hold the general contractor responsible for the subcontractor\u2019s violations); Summit\\Contractors, Inc., 19 BNA OSHC 1270 (No. 00-0838, 2000) (ALJ Spies) (as general contractor and controlling employer\\who had two employees exposed, Summit had the responsibility to comply with the fire extinguishing standard); Summit\\Contractors, Inc., 18 BNA OSHC 1861 (No. 98-1015, 1999) (ALJ Spies) (the citation was affirmed because Summit\\retained a safety consultant to advise it of potential safety hazards and issued fines to subcontractors for safety\\violations); and Summit Contractors, Inc., 17 BNA OSHC 1854 (No. 96-55, 1996) (ALJ Welsch) (the citation was\\vacated because Summit as general contractor lacked knowledge of the hazard). \\’var WPFootnote33 = ‘\u201cWhere it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission \\has generally applied the precedent of that circuit in deciding the case-even though it may differ from the\\Commission\u2019s precedent.\u201d Kerns Brothers Tree Service, 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). \\’var WPFootnote34 = ‘\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In IBP, Inc.,17 BNA OSHC 2073 (No. 93-3059, 1997), the Review Commission held the owner of a plant\\responsible for LOTO violations of an independent contractor while cleaning meat processing machinery. The\\Commission found that the plant owner had supervisory authority over the worksite; it had contractual authority to bar\\entry to the independent contractor and, although its employees were not exposed, it owned the machinery which gave\\it responsibility to do what was reasonably expected to abate violations. The D.C. Court of Appeals reversed the\\Commission finding that the Secretary had not shown sufficient control. A contract provision allowing the owner to\\terminate the contract was not sufficient to show control. Control and preventability are the keys to the applicability of\\the doctrine, not whether the employer is a general contractor.\\’var WPFootnote35 = ‘\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit\u2019s argument that Judge Shoenfeld\u2019s decision involving Summit, 19 BNA OSHC 2089 (No. 01-1614,\\2002), finding a lack of control is res judicata is rejected. Judge Shoenfeld\u2019s decision is a non-binding, unreviewed \\decision of a Commission judge based on the facts in his case. Judge Shoenfeld\u2019s decision is not a final adjudication \\on all issues. Leone Construction Co., 3 BNA OSHC 1979 (No. 4090, 1976). Also, since res judicata was not\\pled until Summit\u2019s posthearing brief, the affirmative defense was waived. 29 C.F.R. 2200.34(b)(4).\\’var WPFootnote36 = ‘It is noted that an employer cannot contract away its responsibilities under the Act. Pride Oil Well Service, 15\\BNA OSHC 1809 (No. 87-692, 1992).\\’var WPFootnote37 = ‘Despite Summit\u2019s former vice-president\u2019s testimony that he did not see anything in the contract regarding\\Summit\u2019s responsibility for subcontractor safety and, if he had, he would have tried to negotiate changes, the clear\\language of the contract provides otherwise (Exh. Jt-2, p. 7). \\’function WPShow( WPid, WPtext ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘visible’\” ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( \”\”, \”comment\”, \”toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1\” ); floatwnd.document.open( \”text\/html\”, \”replace\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( \” p { margin-top:0px; margin-bottom:1px; } \\\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( WPtext ); floatwnd.document.write( ‘Close’); floatwnd.document.write( \”\” ); floatwnd.document.close(); floatwnd.focus(); }}function WPHide( WPid ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘hidden’\” );}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal}td{\tborder-color: black}td.table1column1{\tpadding-left: 0.0816667in;\tpadding-right: 0.0816667in}td.table1column2{\tpadding-left: 0.0816667in;\tpadding-right: 0.0816667in}p{\tmargin-top: 0px;\tmargin-bottom: 1px}p.Heading2{\ttext-align: right}p.BodyText{\ttext-align: justify}span.WPFloatStyle{\tvisibility: hidden;\tposition: absolute;\tleft: 10px;\tright: 10px;\tbackground-color: rgb(255, 255, 225);\tborder-width: 1px;\tborder-style: solid;\tborder-color: black;\tmargin-top: 25px;\tpadding: 6px;\tline-height: normal}span.WPNormal{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal;\tfont-variant: normal;\ttext-align: left;\ttext-decoration: none;\tcolor: black;\tvertical-align: middle;\ttext-indent: 0in}hr{\theight: 0.0125in;\tbackground-color: black}td.table2column1{\tborder: 0.0133333in solid}td.table2column2{\tborder: 0.0133333in solid}body{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal;\tmargin-left: 0.3125in;\tpadding-left: 0.1in}SECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0v.OSHRC Docket No. 03-1622SUMMIT CONTRACTORS, INC.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0\u00a0APPEARANCES: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, DCFor the Complainant\u00a0Robert E. Rader, Jr., Esq.; Rader & Campbell, Dallas, TXFor the Respondent\u00a0Arthur G. Sapper, Esq.; Robert C. Gombar, Esq.; James A. Lastowka, Esq.;McDermott Will & Emery LLP, Washington, DCFor Amici National Association of Home Builders; Contractors\u2019Association of Greater New York; Texas Association of Builders; andGreater Houston Builders Association\u00a0Victoria L. Bor, Esq.; Sue D. Gunter, Esq.; Sherman, Dunn, Cohen, Leifer &Yellig, P.C., Washington, DC For Amicus Building and Construction Trades Department, AFL-CIO\u00a0DECISIONBefore: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.BY RAILTON, Chairman:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0At issue before the Commission is a decision of Judge Ken S. Welsch affirming acitation issued to Summit Contractors, Inc. (\u201cSummit\u201d) for an alleged scaffoldingviolation under 29 C.F.R. \u00a7\u00a01926.451(g)(1)(vii). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote1 ); document.write( ‘Close’ ); document.write( ” ); } Commissioner Thompson and I join invacating the citation in its entirety. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote2 ); document.write( ‘Close’ ); document.write( ” ); } BackgroundSummit is a general building contractor with its corporate office located inJacksonville, Florida. In June 2003, Summit was the prime contractor for theconstruction of a college dormitory in Little Rock, Arkansas. Summit employed only ajob superintendent and three assistant superintendents at the worksite. Thesuperintendents were responsible for coordinating the vendors, scheduling the work forthe various subcontractors, and ensuring that the work of the subcontractors wasperformed according to contract. Summit subcontracted the project\u2019s exterior brickmasonry work to All Phase Construction, Inc. (\u201cAll Phase\u201d). All Phase workers usedscaffolding to perform their work.On June 18 and 19, 2003, an Occupational Safety and Health Administration(\u201cOSHA\u201d) Compliance Safety and Health Officer (\u201cCSHO\u201d) observed and photographedAll Phase employees who were not protected from falls working from scaffolds at 12-18feet above the ground. The CSHO also observed other employees working from ascaffold 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 thehazardous conditions observed by the CSHO. Some of Summit\u2019s superintendents werepresent at the worksite on June 18 and 19, and some of the instances were in plain viewof Summit\u2019s trailer located on the worksite. Summit does not claim it lacked knowledgeof the violative conditions observed by the CSHO. The CSHO did not perform a walkaround inspection, however, until June 24,2003, when Summit\u2019s safety officer could be present. At the time of the walkaroundinspection, the scaffolding violations the CSHO observed on June 18 and 19 had beencorrected. According to Summit\u2019s project superintendent, Jimmy Guevara, he hadpreviously observed All Phase employees working on scaffolds that lacked guardrails. Guevara had instructed All Phase to install guardrails two or three times prior to theOSHA inspection. Each time, All Phase would address the violation but then fall out ofcompliance when the scaffolding was moved to a different area. Based on the CSHO\u2019s observations on June 18 and 19, OSHA issued Summit acitation for a violation of the construction safety standard set forth at\u00a7\u00a01926.451(g)(1)(vii) as a \u201ccontrolling\u201d employer in accordance with the agency\u2019s multi-employer worksite doctrine extant at the time. All Phase was also cited under thedoctrine as the employer who created the hazard and as the employer having employeesexposed to the hazard. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote3 ); document.write( ‘Close’ ); document.write( ” ); } Before the judge, Summit argued that the multi-employer worksite doctrine isinvalid as to a general contractor who neither created, nor had employees exposed to, thealleged and cited hazard. In other words, Summit challenged the Secretary\u2019s applicationof the doctrine to controlling contractors who have contractual authority oversubcontractors. Summit argued before the judge, and also contends on review, that thedoctrine 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. \u00a7\u00a01910.12(a) which states asfollows:Standards. The standards prescribed in Part 1926 of this chapter areadopted as occupational safety and health standards under section 6 of theAct and shall apply, according to the provisions thereof, to everyemployment and place of employment of every employee engaged inconstruction work. Each employer shall protect the employment andplaces of employment of each of his employees engaged in constructionwork by complying with the appropriate standards prescribed in thisparagraph.29 C.F.R. \u00a7\u00a01910.12(a).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As the judge noted, Summit\u2019s argument focuses on the second sentence of thisregulation. Specifically, Summit\u2019s position is that because it had no employees exposedto the hazard, and did not create the hazard, the regulation prohibits the issuance of acitation to Summit for the hazard created by the subcontractor, All Phase. The judgenoted that the Commission has on numerous occasions applied the doctrine to controllingemployers like Summit and, therefore, rejected the argument. Among others, he cited theCommission\u2019s decision in Access Equipment Systems, Inc., 18 BNA OSHC 1718, 1999CCH OSHD \u00b6 31,821 (No. 95-1449, 1999), and McDevitt Street Bovis, Inc., 19 BNAOSHC 1108, 2000 CCH OSHD \u00b6 32,204 (No. 97-1918, 2000). As for the specificargument relating to \u00a7\u00a01910.12(a), the judge simply noted his view that the regulationdoes not prohibit finding an employer responsible for the safety of employees of otheremployers. DiscussionIn a decision rendered almost 31 years ago, the Commission stated that \u201cthegeneral contractor is well situated to obtain abatement of hazards either through its ownresources or through its supervisory capacity.\u201d Grossman Steel & Aluminum Corp., 4BNA OSHC 1185, 1188, 1975-76 CCH OSHD \u00b6 20,691, p. 24,791 (No. 12775, 1976). The Commission went on to say that \u201cwe will hold the general contractor responsible forviolations it could reasonably have expected to prevent or abate by reason of itssupervisory capacity.\u201d Id. This holding was characterized as \u201cdictum\u201d 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 ofits own during ensuing years as the Commission and some circuit courts relied on thesestatements to find some general contractors in violation of construction safety standardssimply by virtue of their \u201csupervisory capacity.\u201d if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote4 ); document.write( ‘Close’ ); document.write( ” ); } See, e.g., Universal Constr. Co. v.OSHRC, 182 F.3d 726 (10th Cir. 1999); R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d815 (6th Cir. 1998); Brennan v. OSHRC (Underhill Constr. Corp.), 513 F.2d 1032 (2dCir. 1975); McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 2000 CCH OSHD \u00b6 32,204(No. 97-1918, 2000); Blount Int\u2019l Ltd., 15 BNA OSHC 1897, 1991-93 CCH OSHD\u00b6\u00a029,854 (No. 89-1394, 1992); Gil Haugan, 7 BNA OSHC 2004, 2006, 1979 CCH OSHD\u00b6 24,105 (Nos. 76-1512 & 76-1513, 1979). Usually in these situations, the subcontractorresponsible for the creation of the hazard and who had employees exposed to the hazardwas also cited for the same violation. The Commission, however, has been told in no uncertain terms by several courtsthat it is not a policy setting agency. See, e.g., Donovan v. A. Amorello & Sons, Inc.,\u00a0761F.2d 61, 65 (1st Cir. 1985) (analyzing legislative history and determining that \u201cCongressdid not intend OSHRC to possess broad powers to set policy . . .\u201d); Marshall v. OSHRC(IMC Chem. Group), 635 F.2d 544, 547 (6th Cir. 1980) (\u201cWhatever \u2018policies\u2019 theCommission establishes are indirect. Only those established by the Secretary are entitledto enforcement and defense in court.\u201d (quoting Madden Constr. Inc. v. Hodgson, 502F.2d 278, 280 (9th Cir. 1974))). According to these decisions, that function belongs tothe Secretary. See Madden Constr., 502 F.2d at 280 (\u201c[T]he Act imposes policy-makingresponsibility upon the Secretary, not the Commission.\u201d). The Secretary\u2019s citation policyon multi-employer construction worksites has a checkered history. Indeed, as thedoctrine developed over the years, the Secretary\u2019s application and elucidation of herenforcement policy has been anything but consistent. See IBP Inc. v. Herman (IBP), 144F.3d 861, 865 n.3 (D.C. Cir. 1998) (detailing doctrine\u2019s \u201ccheckered history\u201d). Ananalysis of the Secretary\u2019s own guidelines regarding the doctrine show the myriadchanges 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 consultless formal means of interpreting regulations, such as the OSHA Field OperationsManual, to determine whether the Secretary has consistently applied her position, a factorin determining the reasonableness of Secretary\u2019s position (citing Ehlert v. United States,402 U.S. 99, 105 (1971))). In its first Field Operations Manual (\u201cFOM\u201d) issued contemporaneously with\u00a7\u00a01910.12(a), OSHA permitted the citation of employers who expose their ownemployees to hazards as well as employers who create a hazardous condition or supplyhazardous equipment, whether or not their own employees were exposed. See OSHAFOM p. VII-6-8 para. 10 (May 20, 1971). The manual was revised six months later toremove the reference to employers who supply unsafe equipment. See OSHACompliance Operations Manual (\u201cCOM\u201d) 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 ona construction site who has exposed his own employees to an unsafe condition. OSHAFOM \u00b6 4380.6 (July, 1974). In essence, OSHA eliminated any practice of makingmultiple employers, other than exposing employers, responsible for the abatement of thesame hazard on construction sites. Indeed, OSHA instructed compliance personnel inthis revised version of the FOM, as follows: \u201cAn employer will not be cited if hisemployees are not exposed or potentially exposed to an unsafe or unhealthfulcondition\u2014even if that employer created the condition.\u201d Id. See also OSHA FOM \u00b64380.6 (Jan. 1, 1979) (identical language).Four years later, OSHA again changed its interpretation of the doctrine. In therevised 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 notcorrect the hazard, and had made an effort to persuade the controlling employer to correctthe hazard, or had alerted employees to the dangers associated with the hazard. OSHAFOM \u00b6 265 (Apr. 18, 1983). This version of the FOM specified that compliancepersonnel should cite the exposing employer(s), unless all exposing employers couldestablish the defense. In that case, compliance personnel should cite the employer in thebest position to correct the hazard. Id. at \u00b6 264-65. See also OSHA Instruction CPL2.42B (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 instructionsand issued a new manual called the Field Inspection Reference Manual or \u201cFIRM\u201d. There, OSHA stated that citations should be issued not only to exposing employers, butalso to creating, controlling and correcting employers \u201cwhether or not their ownemployees are exposed . . . .\u201d OSHA Field Inspection Reference Manual (FIRM)\u00a7\u00a0V.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 \u00a7 1910.12(a) in May 1971, and almost simultaneouslystated a policy for issuing citations on construction sites. The employer exposing itsemployees to hazards was to be cited, and employers who created or supplied hazardousequipment could also be cited. OSHA altered this policy six months later to eliminatecitations to suppliers of faulty equipment. Citations to hazard-creating employers wereeliminated next in 1974, and it was not until 1983 that such employers were returned tothe mix, but only if every exposing employer had a defense. Then, in 1994, OSHAchanged its policy significantly to allow citation of essentially every employer who mighthave some association with the hazard, i.e., the exposing employer, the creatingemployer, the controlling employer, and the correcting employer\u2014the one who couldabate the hazard. The Secretary never indicated the reasons behind her multiple changesin policy. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir.1971) (\u201cagency changing its course must supply a reasoned analysis indicating that priorpolicies and standards were being deliberately changed, not casually ignored\u201d). Furthermore, at no time throughout this period of over twenty years did the Secretaryever note that \u00a7\u00a01910.12(a) contains language which on its face is in apparent conflictwith the policy. It is not as if this conflict has gone unnoticed by the courts or even theCommission. As early as 1995, the United States Court of Appeals for the District ofColumbia Circuit noted a \u201cmarked tension\u201d between the language of \u00a7 1910.12(a) and theSecretary\u2019s 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: \u201cHere, the relevant regulation by itsterms only applies to an employer\u2019s own employees, seemingly leaving little room forinvocation of the [multi-employer] doctrine.\u201d Id. at 1307 (emphasis in the original). Thecourt, after noting that the issue had not been briefed and had not been addressed by anyother court, left \u201cto a later date the critical decision of whether to apply the multi-employer doctrine where an employer has been cited under . . . [\u00a7 1910.12].\u201d Id. In1998, another panel of the same court similarly noted the tension between the regulationand the policy. IBP, 144 F.3d at 865-66. It too determined that it was unnecessary todecide the issue. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote5 ); document.write( ‘Close’ ); document.write( ” ); } Id. at 866.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In a like manner, the Commission in two recent cases noted the existence of theproblem but, like the D.C. Circuit, declined to address it for not having been briefed. SeeAccess 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 itwas not a contractor); McDevitt Street Bovis, Inc., 19 BNA OSHC at 1112-13, 2000 CCHOSHD at p.\u00a048,782-83 (general contractor was responsible for scaffold violation as acontrolling employer). As the judge pointed out here, Summit has raised the issue of theconflict or tension between \u00a7 1910.12(a) and the existing multi-employer policy in thisand a number of other cases. While I firmly believe that cases should be disposed of onnarrow grounds wherever possible, I do not see how the issue raised by Summit can beavoided in this case.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The problem I see is the one recognized by the court in Anthony Crane Rental,Inc.: that the limitation in \u00a7\u00a01910.12(a) making the compliance obligation of employersfor violations of standards applicable only to \u201chis employees\u201d precludes issuance of acitation to a general contractor having none of its employees exposed to the hazard. SeeAnthony Crane Rental, 70 F.3d at 1306-07. It seems to me that the checkered history ofthe multi-employer doctrine as expressed in the Secretary\u2019s ever-changing complianceguidelines\u2014be it the FOM, COM, CPL, or FIRM\u2014taken in contrast with a regulationwhich has not been amended since 1971, results in the latter trumping whatever reliancethe Commission can place on the varying nature of the policy. Cf. Christensen v. HarrisCounty, 529 U.S. 576, 587 (2000) (policy statements while \u201centitled to respect\u201d are notgiven 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, 1995CCH OSHD \u00b6 31,445, p. 44,470 (No. 96-0563, 1997) (in assessing reasonableness ofSecretary\u2019s interpretation, Commission considers, inter alia, whether her interpretation\u201c\u2018sensibly conforms to the purpose and wording of the regulation[]\u2019, taking into account\u2018whether the Secretary has consistently applied the interpretation embodied in thecitation.\u2019\u201d (quoting CF & I Steel Corp., 499 U.S. at 150, 157-58)). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0I find unpersuasive the Secretary\u2019s argument in this litigation that the firstsentence of the regulation permits or allows a broader class of employers, including thosenot having employees exposed to the cited hazard, to be cited under the policy. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote6 ); document.write( ‘Close’ ); document.write( ” ); } While Imay be sympathetic to such an argument, it simply does not explain why the Secretaryhas 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 1999and, while iterating her policy adopted in 1994, failed to address the significant issue andtension mentioned by the court. Beyond that, the Commission has alerted her to the issuein both Access Equipment and McDevitt, yet the Secretary still did not act. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Moreover, to construe the first sentence of \u00a7\u00a01910.12(a) as the Secretary argues inthis litigation is to ignore or eliminate the language \u201ceach of his employees\u201d used in thesecond sentence. See United States v. Menasche, 348 U.S. 528, 538-39 (1955) (\u201cIt is ourduty \u2018to give effect, if possible, to every clause and word of a statute,\u2019 rather than toemasculate an entire section.\u201d (citations omitted)). In other words, the Secretaryimproperly suggests the meaning of the regulation would not change even if the words\u201chis employees\u201d were missing. See AFL-CIO v. Chao, 409 F.3d 377, 384 (D.C. Cir.2005) (\u201cthe court is obligated not only to construe the statute as a whole but to givemeaning to each word of the statute\u201d). In my view, her interpretation is untenable. TheCommission must give effect to the plain language of the regulation, especially in theface of the Secretary\u2019s inconsistent doctrine. See Arcadian Corp., 17 BNA OSHC 1345,1347, 1995-97 CCH OSHD \u00b6\u00a030,856 p. 42,917 (statutory analysis ends if language isplain), aff\u2019d, 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\u2019s contemporaneousunderstanding of ambiguous term where understanding had been fortified by agency\u2019sconsistent behavior over the following decades). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote7 ); document.write( ‘Close’ ); document.write( ” ); } Order\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For these reasons, I find the Secretary\u2019s reliance on her multi-employer worksitedoctrine to cite Summit in this case to be impermissible given the contrary language ofher regulation at \u00a7\u00a01910.12(a). Accordingly, based on this analysis and that set forth inCommissioner Thompson\u2019s concurring opinion, we vacate the citation.SO ORDERED.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\/s\/\u00a0________________________\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0W. Scott Railton\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Chairman\u00a0\u00a0Dated: April 27, 2007 \u00a0THOMPSON, Commissioner, concurring:In this case, the Secretary seeks to enforce the duty of a \u201ccontrolling employer\u201dpursuant to her current multi-employer citation policy. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote8 ); document.write( ‘Close’ ); document.write( ” ); } The citation alleges a violationof a Part 1926 construction standard, 29 C.F.R. \u00a7 1926.451(g)(1)(vii), againstSummit Contractors, Inc. (\u201cSummit\u201d), a general construction contractor who, theSecretary concedes, neither created the violative conditions nor exposed any of itsown employees to these conditions. For the separate reasons I state below, I joinChairman Railton in vacating the citation because I conclude that 29 C.F.R. \u00a71910.12(a) prevents the Secretary from citing Summit in this case.Discussion My colleague Commissioner Rogers notes that Commission precedent establishesthat section 5 (a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. \u00a7 655(\u201cOSH Act\u201d), grants the Secretary broad discretion to promulgate a multi-employercitation policy. See Arcadian Corp., 17 BNA OSHC 1345, 1352, 1995-97 CCH OSHD\u00b6\u00a030,856, p. 42,918 (No. 93-3270, 1995), aff\u2019d, 110 F.2d 1192 (5th Cir. 1997). In fact,more than thirty years ago, the Secretary published, but then withdrew, a FederalRegister notice seeking comment on a proposed multi-employer citation policy. See 41Fed. Reg. 17,639, 17,640 (Apr. 27, 1976). However, having said that precedent grants the Secretary broad statutorydiscretion to adopt and enforce specific standards does not a fortiori define thelimitations the Secretary voluntarily imposed on that discretion when she adopted aspecific standard or set of standards. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote9 ); document.write( ‘Close’ ); document.write( ” ); } Thus, in this case, it remains to be resolved how\u00a7\u00a01910.12(a) limits the discretion of the Secretary to issue citations for violations of 29C.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 occupationalsafety and health standards . . . and shall apply, according to the provisionsthereof, to every employment and place of employment of every employeeengaged in construction work. Each employer shall protect the employment andplaces of employment of each of his employees engaged in construction work bycomplying with the appropriate standards prescribed in this paragraph.29 C.F.R. \u00a7\u00a01910.12(a). The Secretary issued \u00a7\u00a01910.12(a) pursuant to section 6(a) of the OSH Act inorder to adopt the Part 1926 standards originally enforced under the Contract WorkHours and Safety Standards Act, 40 U.S.C. \u00a7 333 (\u201cConstruction Safety Act\u201d or \u201cCSA\u201d). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote10 ); document.write( ‘Close’ ); document.write( ” ); } See Coughlan Constr. Co., 3 BNA OSHC 1636, 1638, 1975-76 CCH OSHD \u00b6 20,106, p.23,923 (Nos. 5303 & 5304, 1975). The scope and application provisions of \u00a7 1910.12(a)define the \u201cregulatory universe\u201d to which those construction standards apply. See Reichv. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4-5 (1st Cir. 1993). Neither a reviewingcourt nor the Commission has ever before sought to resolve the \u201cmarked tension\u201dbetween the Secretary\u2019s multi-employer citation policy and \u00a7 1910.12(a). See AnthonyCrane Rental Inc. v. Reich, 70 F. 3d 1298, 1307 (D.C. Cir. 1995) (recognizing \u201cthemarked tension\u201d between the multi-employer citation policy and \u201cthe language of\u00a7\u00a01910.12[(a)] . . . that \u2018[e]ach employer shall protect the employment and places ofemployment of each of his employees,\u2019\u201d but failing to reach the issue). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote11 ); document.write( ‘Close’ ); document.write( ” ); } I agree with mycolleagues that the Commission should address this \u201ctension\u201d herein, which has beensquarely presented, thoroughly briefed, and comprehensively analyzed during oralargument. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote12 ); document.write( ‘Close’ ); document.write( ” ); } Summit argues that the \u201chis employees\u201d phrase of the second sentence of\u00a7\u00a01910.12(a) describes a construction employer\u2019s duty that is limited to his ownemployees. The Secretary argues that the first sentence describes a duty that is as broadas the working conditions of all employees on the construction site, effectively ignoringthe \u201chis employees\u201d clause of the second sentence. To avoid the dilemma described inthe Hindu parable of the blind observers\u00a0disagreeing about\u00a0the\u00a0shape of an\u00a0elephant aftereach grasped only his trunk, tusk or leg, I would not limit my perception of possiblereasonable interpretations of the scope and application of \u00a7 1910.12(a) by focusing ononly one clause or sentence. Read together, the two sentences of the regulation requirean employer to \u201cprotect the employment and places of employment of each of hisemployees . . . by complying with [Part 1926 standards]\u201d applicable to \u201ceveryemployment and place of employment of every employee engaged in construction work.\u201d See 29 C.F.R. \u00a7\u00a01910.12(a). Reading the provision in a manner consistent with theuniversal interpretation of the general duty clause, if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote13 ); document.write( ‘Close’ ); document.write( ” ); } it is clear and unambiguous on theface of the regulation that the duty of a construction employer under \u00a7 1910.12(a) isowed to protect only \u201chis employees\u201d, permitting only an employment-basedenforcement scheme. What remains to be determined is whether a \u201ccontrollingemployer\u201d theory of liability, defined by the Secretary as an enforcement schemegrounded in contract or quasi-contract, fits within the full scope and application of this\u201cemployment-based\u201d duty under \u00a7\u00a01910.12(a) of a construction employer to \u201cprotect . . .his employees\u201d by complying with the Part 1926 standards.The full scope and application of the construction employer\u2019s \u00a7\u00a01910.12(a)employment-based duty can be determined by analyzing the agency\u2019s original intentwhen it drafted and began enforcement of the regulation. See Am. Waterways Operators,Inc. v. United States, 386 F.\u00a0Supp. 799, 803-04 (D.D.C. 1974) (construction of act by theagency charged with its administration is accorded great weight if reasonable, but \u201cofhigher significance\u201d is the construction of the act by those who participated in the act\u2019sdrafting and who directly made their views known to Congress), aff\u2019d, 421 U.S. 1006(1975). The first construction of a new act by the body charged with enforcing it is\u201centitled to more than usual deference accorded an agency\u2019s interpretation\u201d of an act orregulation. See Power Reactor Dev. Co. v. Int\u2019l Union of Elec. Workers, 367 U.S. 396,408 (1961) (contemporaneous construction \u201cby the men charged with the responsibilityof setting its machinery in motion\u201d is entitled to particular respect); Nat\u2019l CableTelevision Ass\u2019n v. Copyright Royalty Tribunal, 689 F.2d 1077, 1081 (D.C. Cir. 1982)(affording \u201cmore than the usual deference due an agency\u2019s interpretation of its enablingact\u201d to Copyright Royalty Tribunal\u2019s reading of the Copyright Act because it \u201cwas thefirst construction of a new act by the body charged with the responsibility for setting itsmachinery in motion.\u201d). The regulation\u2019s preamble says nothing about the Secretary\u2019soriginal intent. See 36 Fed. Reg. 10,466 (May 29, 1971). However, the Secretary didindicate her original intent to limit enforcement of Part 1926 standards, throughpromulgation of \u00a7\u00a01910.12(a), against a class of employers similar to non-creating non-exposing \u201ccontrolling employers\u201d as defined in the Secretary\u2019s current multi-employercitation policy. Her intent is evident in two distinct actions: First, the Secretary excludedthe Construction Safety Act duties of the prime (general) contractor, which are parallel to\u201ccontrolling employer\u201d duties, when she adopted the Construction Safety Act standardsas OSH Act standards. Second, the Secretary precluded enforcement of any dutiesagainst the general contractor parallel to \u201ccontrolling employer\u201d duties when she issuedthe original enforcement guidelines directing citations at multi-employer constructionsites. The first demonstration of the Secretary\u2019s original intent is the striking contrastbetween the language of the second sentence of \u00a7 1910.12(a), which imposes an OSHAct duty on construction employers to protect their own employees through compliancewith Part 1926 standards, and the language of \u00a7 1926.16, which imposed a ConstructionSafety Act duty on prime (general) contractors to protect the employees of subcontractorsthrough assuring their compliance with the same standards. Indeed, contrary to theassertion of my colleague Commissioner Rogers at footnote 4, \u00a7 1910.12(a) was plainlyintended as a limit. It was intended to limit the Secretary\u2019s discretion to impose underthe OSH Act the duty under the CSA of prime (general) contractors at construction sites. The Secretary\u2019s intent to limit her discretion to enforce the adopted standards is clearfrom the dramatic distinction between what the Secretary had written as CSA regulationsand standards, and the limited parts she adopted through \u00a7 1910.12(a). On May 29, 1971,in accordance with section\u00a06(a) of the OSH Act, the Secretary promulgated \u00a7\u00a01910.12. Section 1910.12 adopted as occupational safety and health standards those standards thathad been issued under the Construction Safety Act in 29 C.F.R. Part 1518 (now 29 C.F.R.Part 1926). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote14 ); document.write( ‘Close’ ); document.write( ” ); } Through \u00a7\u00a01910.12, the Secretary made \u201cthe standards (substantive rules)\u201dpublished in Subpart C of Part 1926 applicable to construction employers in general, butleft Subparts A and B of Part 1926 applicable only to federal contractors. Notably,\u00a7\u00a01926.16 in Subpart B, expressly imposes liability on the prime (general) contractor forviolations by subcontractors. The failure of the Secretary to adopt \u00a7 1926.16 through\u00a7\u00a01910.12, if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote15 ); document.write( ‘Close’ ); document.write( ” ); } or to use similar language when describing an employer\u2019s duties under theOSH Act in \u00a7\u00a01910.12(a), is indication that she intended the duties of an employer (inthis case, a prime (general) contractor) under the OSH Act to be more limited than theduties of a prime (general) contractor under the Construction Safety Act. CommissionerRogers\u2019 footnote 4 is correct to the extent she concedes the text of \u00a7 1910.12(c) is a clearstatement of the reason for the Secretary\u2019s failure to incorporate Subparts A and B of1926, i.e., the contractually-based enforcement scheme of the CSA was inconsistent withthe Secretary\u2019s construction of an employment-based enforcement scheme under theOSH Act. This concedes the point that if the Secretary had originally intended toexercise discretion under section\u00a05(a)(2) of the OSH Act to cite general contractors atmulti-employer construction sites on a contractually-based if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote16 ); document.write( ‘Close’ ); document.write( ” ); } \u201ccontrolling employer\u201dtheory, she could have done so by adopting the enforcement scheme of \u00a7 1926.16, absentthe federal contractor predicate, pursuant to section 6(a) of the OSH Act.The second demonstration of the Secretary\u2019s original intent is the exclusion of a\u201ccontrolling employer\u201d basis for citations from the Secretary\u2019s original multi-employercitation policy. Almost simultaneously with the promulgation of \u00a7\u00a01910.12(a), theSecretary adopted her first Field Operations Manual (\u201cFOM\u201d), originally called the\u201cCompliance Operations Manual\u201d. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote17 ); document.write( ‘Close’ ); document.write( ” ); } The FOM published guidelines for OSHA\u2019s fieldofficers charged with conducting workplace inspections to enforce, inter alia, Part 1926standards. 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 didnot create the hazard, p.VII-7 \u00b6\u00a010c; or by creating a hazard, even if it did not expose itsown employees to that hazard, p.VII-7 \u00b6\u00a010b. The simultaneous production by OSHA oftwo separate documents (the FOM and \u00a7\u00a01910.12(a)), both limiting the Secretary\u2019senforcement of Part 1926 standards, cannot be dismissed as a mere unrelated\u201ccoincidence.\u201d The May 1971 FOM is an\u00a0indicator of the original intent of the draftersof \u00a7\u00a01910.12(a) because: (1) the Secretary contemporaneously drafted both \u00a7\u00a01910.12(a)and the FOM guidelines for enforcement of the safety and health standards that wereadopted by \u00a7\u00a01910.12(a); (2) the enforcement guidelines in the FOM could not yet havebeen\u00a0influenced by\u00a0interpretations of the Secretary\u2019s citation authority by the\u00a0newly-formed Occupational Safety and Health Review Commission; and (3) the FOM explicitlyincluded guidelines for\u00a0citations, inter alia, at multi-employer construction sites underthe very standards adopted by \u00a7 1910.12(a). The original FOM, as well as theamendment to the FOM six months later, both set forth the two duties of an employer at amulti-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 theemployer\u2019s duty to \u201cprotect \u2026 his employees\u201d under \u00a7\u00a01910.12(a) that not only did theSecretary fail to adopt the \u201ccontrolling employer\u201d concept from the CSA when sheadopted its body of standards, neither did she in her original enforcement guidelinesdirect field personnel to cite non-creating, non-exposing, controlling employers at amulti-employer construction worksite. In fact, during the next dozen years ofenforcement of the OSH Act\u2014one-third of OSHA\u2019s statutory life\u2014official agencyguidelines made it clear that the Secretary\u2019s power to cite an employer at a multi-employer worksite extended only to creating or exposing employers; controllingemployers were never mentioned. See OSHA Compliance Operations Manual (\u201cCOM\u201d)p. VII-7-8 para. 13 (Nov. 15, 1971) (citation of creating or exposing employers); OSHAFOM \u00b6 4380.6 (July, 1974) (citation of exposing employers only); OSHA FOM \u00b6 4380.6(Jan. 1, 1979) (same). It was not until 1983, twelve years after the Act\u2019s effective date,that OSHA for the first time directed its compliance officers to consider citation of acontrolling employer. See OSHA FOM \u00b6 265 (Apr. 18, 1983). That expansion then waslimited to the narrow circumstances where a general contractor is informed of, but fails toabate, a hazard that cannot be abated by any exposing employer. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote18 ); document.write( ‘Close’ ); document.write( ” ); } The Commission will normally defer to the Secretary\u2019s reasonable interpretationof a regulation. See Martin 499 U.S. at 150. I find the Secretary\u2019s original multi-employer citation policy, allowing citation of creating as well as exposing employers, isconsistent with \u00a7 1910.12(a)\u2019s requirement that an employer must \u201cprotect theemployment and places of employment of his employees\u201d. It also comports with thepurpose of the Act. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote19 ); document.write( ‘Close’ ); document.write( ” ); } The creation of violative employment conditions puts allemployees at risk. Here I agree with the statement made at oral argument by Summit\u2019samicus that the Secretary recognized when she drafted \u00a7\u00a01910.12(a) and the originalFOM that reasonably predictable exposure generally runs with creation of a hazard. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote20 ); document.write( ‘Close’ ); document.write( ” ); } Onthe other hand, as Chairman Railton adequately explains, deference to OSHA\u2019s\u201ccheckered history\u201d of reinterpretation of the multi-employer citation policy after 1971would yield an inconsistent, and therefore unreasonable interpretation of \u00a7\u00a01910.12(a).\u00a0Moreover, the Secretary cannot in this case simply ignore a regulatory limitation on herdiscretion, albeit that it was voluntarily imposed. As the regulation now exists, theagency has ab initio limited its discretion to expand the duties of employers beyond thoseduties originally intended when the Secretary adopted the Part 1926 standards. Unlessand until the agency modifies or repeals the employment-based limitations imposed bythe regulation, it may not by simple policy directive remove the substantive limitationson official discretion that now exist. In Vitarelli v. Seaton, the Supreme Court held thateven agencies with broad discretion must adhere to internally promulgated regulationslimiting 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) (\u201cIt is well settled thatan agency, even one that enjoys broad discretion, must adhere to voluntarily adopted,binding policies that limit its discretion.\u201d (citing Padula vs. Webster, 822 F.2d 97, 10(D.C. Cir. 1987))). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote21 ); document.write( ‘Close’ ); document.write( ” ); }In this case, it is undisputed that Summit is a non-creating, non-exposingemployer.\u00a0 In other words, the only basis for issuing the citation to Summit is thatSummit is a \u201ccontrolling employer\u201d under the Secretary\u2019s current multi-employer citationpolicy.\u00a0 As explained above, however, I find \u00a7\u00a01910.12(a) cannot be interpreted to permitcitation for a violation of a Part 1926 standard of a controlling employer who neithercreated the violative conditions nor exposed his employees to the hazard. ConclusionFor the foregoing reasons, I concur with the Chairman\u2019s conclusion that\u00a7\u00a01910.12(a) prevents the Secretary from enforcing her current multi-employer citationpolicy to cite a non-exposing non-creating employer such as Summit, for violation of\u00a7\u00a01926.451(g)(1)(vii). Therefore, I join Chairman Railton in vacating the citation. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\/s\/\u00a0________________________\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Horace A. Thompson, IIIDated: April 27, 2007 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerROGERS, Commissioner, dissenting:By their decision today, my colleagues have reversed over thirty years ofCommission precedent that has had the effect of enhancing worker safety on constructionworksites with multiple employers. In voting as they have to eliminate the Secretary\u2019sability to cite general contractors under her multi-employer enforcement policy, mycolleagues have deprived the Secretary of a very important tool to hold accountable thoseoften in the best position to ensure safety on construction worksites. The rejection of the multi-employer precedent has at least three additionalundesirable results. First, it usurps for the Review Commission the Secretary\u2019s policy-making role under the Occupational Safety and Health Act (\u201cthe Act\u201d). Second, ittrivializes the Secretary\u2019s prosecutorial discretion and ability to develop and refineenforcement policies consistent with the Act. Finally, it de-stabilizes a body of law that,while not perfect or totally comprehensive, offers rationality and predictability. I would uphold the long-standing precedent and continue to recognize theSecretary\u2019s authority to cite general contractors under her multi-employer enforcementpolicy.Overview – The Multi-employer Construction Worksite DoctrineFor over thirty years, the Commission has affirmed the validity of the multi-employer construction worksite doctrine. As described by the Commission, this doctrine,rooted in the Act, the principles of the common law, and the realities of the constructionworkplace, provides that:[A]n employer who either creates or controls the cited hazard has a dutyunder [section] 5(a)(2) of the Act, 29 U.S.C. \u00a7 666(a)(2), to protect notonly its own employees, but those of other employers \u201cengaged in thecommon undertaking.\u201d Anning-Johnson Co., 4 BNA OSHC 1193, 1199,1975-76 CCH OSHD \u00b6 20,690, p. 24,784 (No. 3694, 1976); GrossmanSteel [& Aluminum Corp.], 4 BNA OSHC [1185], 1188, 1975-76 CCHOSHD [\u00b6\u00a020,691], p. 24,791 [(No. 12775, 1976)]. Specifically, theCommission has concluded that an employer may be held responsible forthe violations of other employers \u201cwhere it could reasonably be expectedto prevent or detect and abate the violations due to its supervisoryauthority and control over the worksite.\u201d Centex-Rooney [Constr. Co.], 16BNA OSHC [2127], 2130, 1993-95 CCH OSHD \u00b6\u00a030,621, p. 42,410 [(No.92-0851, 1994)].McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1109, 2000 CCH OSHD \u00b6\u00a032,204, p.48,780 (No. 97-1918, 2000) (McDevitt).A.\u00a0\u00a0The Act, Commission Precedent, and Circuit Court Precedent AllSupport the Secretary\u2019s Authority to Apply the Multi-employer WorksiteDoctrine. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent would have the Commission believe that there is simply no legalauthority for the Secretary\u2019s use of the multi-employer doctrine and that it was inventedout of whole cloth. Notwithstanding Respondent\u2019s view of what the law should looklike, over the last thirty years, this Commission and most of the circuit courts that haveconsidered the doctrine have repeatedly affirmed the validity of the Secretary\u2019s authorityand discretion to apply the multi-employer doctrine at construction worksites. SeeMcDevitt, 19 BNA OSHC at 1111-12, 2000 CCH OSHD at p. 48,782. The Secretary\u2019sauthority to apply the doctrine under the Act has been repeatedly affirmed with respect toat least three classes of employers: exposing employers, see, e.g., Bratton Corp., 6 BNAOSHC 1327, 1978 CCH OSHD \u00b6\u00a022,504 (No. 12255, 1978), aff\u2019d, 590 F.2d 273 (8th Cir.1979); Grossman Steel, 4 BNA OSHC 1185, 1975-76 CCH OSHD \u00b6\u00a020,691 (No. 12775,1976); Anning-Johnson, 4 BNA OSHC 1193, 1975-76 CCH OSHD \u00b6 20,690 (No. 3694,1976) (consolidated); creating employers, see, e.g., Beatty Equip. Leasing, Inc., 4 BNAOSHC 1211, 1975-76 CCH OSHD \u00b6 20,694 (No. 3901, 1976), aff\u2019d, 577 F.2d 534 (9thCir. 1978); and, at issue here, controlling employers (usually general contractors), seeKnutson Constr. Co., 4 BNA OSHC 1759, 1976-77 CCH OSHD \u00b6 21,185 (No. 765,1976), aff\u2019d, 566 F.2d 596 (8th Cir. 1977). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote22 ); document.write( ‘Close’ ); document.write( ” ); }\u00a0The doctrine reflects a valid use of the Secretary\u2019s enforcement authority underthe Act. An employer\u2019s duties under the Act stem from section 5(a). Anning-JohnsonCo. v. OSHRC, 516 F.2d 1081, 1084 (7th Cir. 1975) (employer\u2019s duty flows fromsection\u00a05(a)(1) and (2)). In particular, section 5(a)(2) states broadly that an employer\u201cshall comply with . . . standards,\u201d thus indicating a duty to comply with specific OSHAstandards for the benefit of all employees on a worksite. See 29 U.S.C. \u00a7 654(a)(2);United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 982-83 (7th Cir. 1999). In contrast, under section 5(a)(1), the general duty clause, an employer is requiredto \u201cfurnish to each of his employees employment and a place of employment which arefree from recognized hazards that are causing or likely to cause death or serious physicalharm to his employees.\u201d 29 U.S.C. \u00a7 654(a)(1) (emphasis added). The use of the phrase\u201chis employees\u201d delineates that the general duty imposed by section 5(a)(1) isspecifically limited to an employer\u2019s own employees. See Pitt-Des Moines, 168 F.3d at982. See also S. Rep. No. 1282, 91st Cong., 2d Sess. 9 (1970), reprinted in SenateComm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of theOccupational Safety and Health Act of 1970, at 149; H.R. Rep. No. 1291, 91st Cong., 2dSess. 21 (1970), Leg. Hist., at 851. See also Pitt-Des Moines, 168 F.3d at 983 (\u201cWhereCongress includes particular language in one section of a statute but omits it in anothersection of the same Act, it is generally presumed that Congress acts intentionally andpurposefully in the disparate inclusion or exclusion.\u201d (quoting Russello v. United States,464 U.S. 16, 23 (1983))); Marshall v Knutson Constr. Co., 566 F.2d 596, 599 (8th Cir.1977) (per curiam) (Knutson); Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799, 804(6th Cir. 1984) (Teal); Beatty Equip. Leasing, Inc. v. Sec\u2019y of Labor, 577 F.2d 534, 536-37 (9th Cir. 1978) (Beatty). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Moreover, the Secretary\u2019s authority under the doctrine is supported by the Act\u2019sbroad purpose, set forth at section 2(b) of the Act, 29 U.S.C. \u00a7 651(b), \u201cto assure so far aspossible every working man and woman in the Nation safe and healthful workingconditions\u201d (emphasis added). See Pitt-Des Moines, 168 F.3d at 983; Knutson, 566 F.2dat 600 n.7; Teal, 728 F.2d at 803; Beatty, 577 F.2d at 537; Brennan v. OSHRC (UnderhillConstr. Co.), 513 F.2d 1032, 1038 (2d Cir. 1975) (Underhill). In addition, section2(b)(1), 29 U.S.C. \u00a7 651(b)(1), states that an additional purpose of the Act is toencourage the reduction of hazards to employees \u201cat their places of employment,\u201dindicating the Act\u2019s focus was on making places of employment safe from work relatedhazards. See Pitt-Des Moines, 168 F.3d at 983; Underhill, 513 F.2d at 1038. Thus,\u201conce an employer is deemed responsible for complying with OSHA regulations, it isobligated to protect every employee who works in its workplace.\u201d See Pitt-Des Moines,168 F.3d at 983 (quoting Teal, 728 F.2d at 805 (emphasis added)). More specifically, both the Commission and the courts have upheld theSecretary\u2019s use of her authority under the Act to hold a general contractor liable underthe doctrine \u201cfor violations it could reasonably have been expected to prevent or abate byreason of its supervisory capacity,\u201d because of the general contractor\u2019s unique position ofcontrol over the construction site and authority to obtain abatement. See Grossman Steel,4 BNA OSHC at 1188, 1975-76 CCH OSHD at p. 24,791. Three circuits havespecifically applied the doctrine to cases involving such controlling employers. SeeUniversal Constr. Co. v. OSHRC, 182 F.3d 726, 727-32 (10th Cir. 1999) (Universal);R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 817-19 (6th Cir. 1998) (Carbone);Knutson, 566 F.2d at 597-98 (8th Cir. 1977) (Commission\u2019s decision that generalcontractor had duty with respect to subcontractor\u2019s safety violations but that, in this case,general contractor lacked sufficient control to be held liable was \u201creasonable and . . .consistent with the purpose of the Act.\u201d). See also Bratton Corp. v. OSHRC, 590 F.2d273, 276 (8th Cir. 1979) (discussing circuit\u2019s previous approval of application of multi-employer doctrine to general contractor in Knutson). Indeed, it is the unique position of the general contractor\u2014whose main functionis to supervise the work of subcontractors\u2014that gives it the control to ensure hazardabatement. See Knutson, 566 F.2d at 599 (general contractors have \u201cthe responsibilityand the means to assure that other contractors fulfill their obligations with respect toemployee safety where those obligations affect the construction worksite\u201d); Universal,182 F.3d at 730 (as practical matter, general contractor may be only on-site person withauthority to compel OSHA compliance); Carbone, 166 F.3d at 818 (6th Cir. 1998) (it ispresumed that general contractor has enough control over subcontractors to require thatthey comply with OSHA standards). See also Recent Case, Administrative Law \u2013Occupational Safety & Health Act \u2013 On Multiemployer Jobsite, When Employees of anyEmployer are Affected by Noncompliance with a Safety Standard, Employer in Control ofWork Area Violates Act; Employer Not in Control of Work Area Does Not Violate Act,Even If His Own Employees Are Affected, Provided the Hazard is \u201cNonserious,\u201d 89Harv. L. Rev. 793, 797 (1976) (person controlling work area in best position to preventhazards). As noted in Universal, at times it is only the general contractor who can ensurethat compliance takes place. Universal, 182 F.3d at 730. As such, the congressionalcommand in section 5(a)(2) of the Act would be a dead letter unless it also ran to ageneral contractor with supervisory control over the worksite. It is important toemphasize, however, as I previously pointed out in McDevitt, that the generalcontractor\u2019s liability under the doctrine is not without limits. See McDevitt, 19 BNAOSHC at 1109 n.3, 2000 CCH OSHD at p. 48,779 n.3 (Rogers, Commissioner, notingthat liability of general contractor is based on reasonableness standard and is \u201cfar fromstrict liability\u201d). See also Knutson, 566 F.2d at 601 (general contractor\u2019s duty depends onwhat measures are commensurate with its degree of supervisory capacity). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote23 ); document.write( ‘Close’ ); document.write( ” ); }B.\u00a0\u00a0Section 1910.12(a) Does Not Limit the Secretary\u2019s Authority to CiteControlling Employers Under the Act\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Notwithstanding this long-standing precedent, my colleagues\u2014likeRespondent\u2014now seek to turn back the clock and rewrite history more to their liking. Although the Commission has apparently never viewed it as such over the thirty years ithas applied the doctrine, my colleagues now seem to separately suggest that 29 C.F.R. \u00a71910.12(a) should be viewed as a self-imposed limit on the Secretary\u2019s authority undersection 5(a)(2) of the Act to utilize the multi-employer policy. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote24 ); document.write( ‘Close’ ); document.write( ” ); } The rather sparse preamble gives no indication that \u00a7 1910.12(a) was at allintended to address multi-employer situations. See 36 Fed. Reg. 10,466 (May 29, 1971). Indeed, other than my colleagues\u2019 pure speculation, based on a coincidence in timing,there is no evidence that \u00a7 1910.12(a) was intended as a limit on an employer\u2019s duty tocomply with construction standards, a duty which derives directly from section 5(a)(2) ofthe Act. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote25 ); document.write( ‘Close’ ); document.write( ” ); } See Universal, 182 F.3d at 728-30. The Commission should not effectivelyreverse over thirty years of precedent and rewrite history based on rank speculation. Similarly, there is no indication that the multi-employer policy was intended as aninterpretation of \u00a7 1910.12(a), as my colleagues separately seem to suggest. Rather, asthe Commission and the courts have continuously held, the multi-employer policyrepresents the Secretary\u2019s expression of how she intends to exercise her permissibleprosecutorial discretion within the parameters allowed by the Act itself. Limbach Co., 6BNA OSHC 1244, 1245, 1977-78 CCH OSHD \u00b6\u00a022,467, pp. 27,080-81 (No. 14302,1977) (multi-employer policy represents general statement of policy for guidance ofinspectors). See Universal, 182 F.3d at 730 (Secretary\u2019s interpretation of section 5(a)(2)consistent with Act). Contrary to the suggestion by my colleagues, it is for this same reason thatrulemaking was not required here because the multi-employer worksite doctrine is not asubstantive rule, but merely an interpretation of the OSH Act and recognition of theobligations already contained therein. See Universal, 182 F.3d at 728 n.2 (employer\u2019sposition that rulemaking was required before applying multi-employer worksite doctrine\u201cclearly is incorrect\u201d); Limbach Co., 6 BNA OSHC 1245, 1977-78 CCH OSHD at pp.27,080-1 (multi-employer worksite doctrine is not substantive rule). Accordingly, giventhe case law, there was no need for the Secretary to initiate a rulemaking merely torespond to dicta in court and Commission decisions. Furthermore, Summit was on amplenotice of its possible liability because the doctrine is well-established and has been inexistence for many years. See Universal, 182 F.3d at 728 n.2 (noting doctrine\u2019s longhistory).To the extent the Secretary has clarified the details of the policy over the years,those clarifications merely reflect adjustments in how the Secretary has chosen toexercise her permissible prosecutorial discretion, within the bounds of the Act andinformed by her experiences in enforcing the Act. After all, such policy guidelines\u201c\u2018merely announce[] [the Secretary\u2019s] tentative intentions for the future, leaving himselffree to exercise his informed discretion.\u2019\u201d See Sec\u2019y of Labor v. Twentymile Coal Co.,456 F.3d 151, 159 (D.C. Cir. 2006) (citation omitted) (Twentymile). As the Secretarycorrectly points out, to some extent, the Secretary has even altered the application of herpolicy in response to decisions of the Commission. Resp. Br. for the Sec\u2019y of Labor,Summit Contractors, Inc., Docket No. 03-1622, at p. 26 n.14. See also 41 Fed. Reg.17,639 (Apr. 27, 1976) (Secretary discusses evolution of multi-employer case law);Recent Case, Administrative Law \u2013 Occupational Safety & Health Act \u2013 OnMultiemployer Jobsite, When Employees of any Employer are Affected byNoncompliance with a Safety Standard, Employer in Control of Work Area Violates Act;Employer Not in Control of Work Area Does Not Violate Act, Even If His OwnEmployees Are Affected, Provided the Hazard is \u201cNonserious,\u201d 89 Harv. L. Rev. 793,797 n.34 (1976) (discussing possible changes in Secretary\u2019s multi-employer policy inresponse to Commission and court decisions). It is highly ironic for my colleagues to usethose Commission-driven changes against her. In claiming that the Secretary has been inconsistent because her policy hasevolved over the years, my colleagues have a fundamental misunderstanding ofenforcement guidelines and seek to impose on the Secretary an inappropriate straitjacketthat would deprive her of the ability to make adjustments in her enforcement policies. My colleagues even suggest that the Secretary recognized she lacked the authority to citecontrolling employers because she did not seek to cite them in her first enforcementpolicy. There is a significant difference between an agency not exercising the full scopeof its statutory authority for reasons of enforcement discretion and an agency explicitlyrecognizing that it lacks statutory authority. I am not aware that the Secretary has evertaken the position that she lacked the authority to cite controlling employers. See KasparWire Works, Inc. v. Sec\u2019y of Labor, 268 F.3d 1123, 1131 (D.C. Cir. 2001) (Secretary hadnever taken position that she lacked authority to issue per-instance penalties). In any event, courts have recognized the danger of \u201ctransmogrify[ing]\u201d writtenguidelines that aid an agency\u2019s exercise of discretion into binding norms, as mycolleagues inappropriately seek to do here. See Comty. Nutrition Inst. v. Young, 818 F.2d943, 949 (D.C. Cir. 1987). Unfortunately, this \u201cpernicious\u201d practice of denying theSecretary her lawful prosecutorial discretion, second guessing her legitimate policychoices, and \u201csubstitut[ing] its views of enforcement policy for those of the Secretary\u201d isbecoming all too common. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote26 ); document.write( ‘Close’ ); document.write( ” ); } See Twentymile, 456 F.3d at 158. Indeed, were mycolleagues to have their way, the Secretary would be required to embark on a series ofnever-ending rulemakings merely to maintain her statutory authority.Even assuming, arguendo, that my colleagues are right about \u00a7 1910.12(a) ashaving some relevance to the Secretary\u2019s multi-employer citation authority under section5(a)(2) of the Act, I would read paragraph (a), taken as a whole, as ambiguous. The firstsentence makes clear that the construction standards apply to the \u201cplace of employmentof every\u201d construction employee and is similar in breadth to section 5(a)(2) of the Act. Thus, to the extent a general contractor exercises control over such a place ofemployment (and recognizing in some cases that only the general contractor can ensuresafety compliance), it is reasonable to read the regulation as imposing on that controllinggeneral contractor a duty to comply with the specific construction standards which applyto that place of employment. Read in this context, the second sentence merelyemphasizes the primary responsibility of the direct employer to comply with theappropriate standards, but it is not drafted as a limitation, does not by its terms imposethe duty exclusively on the direct employer (i.e., it does not say \u201c[e]ach employer shallprotect the employment and places of employment of only each of his employees . . .\u201d),and is not inconsistent with the more generalized duty imposed by the first sentence andits statutory analog, section 5(a)(2) of the Act. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote27 ); document.write( ‘Close’ ); document.write( ” ); } My colleagues suggest that \u00a7 1910.12(a) should be interpreted in a manner similarto section 5(a)(1) of the Act, in light of the reference in the second sentence of theregulation to \u201ceach of his employees.\u201d But they appear to overlook the fact that section5(a)(1) of the Act lacks the broad first sentence\u2014similar in breadth to section5(a)(2)\u2014which appears in \u00a7\u00a01910.12(a) of the regulation. Indeed, in that respect, \u00a71910.12(a) is more akin to sections 5(a)(1) and 5(a)(2) of the Act combined. Accordingly, the two sentences of \u00a7\u00a01910.12(a) must be read together and in the contextof the duty imposed by section 5(a)(2) of the Act.Thus, to the extent that \u00a7 1910.12(a) might be viewed as having some relevanceto the Secretary\u2019s multi-employer citation authority under the Act, I would defer to theSecretary\u2019s reasonable and longstanding interpretation of \u00a7 1910.12(a) as permitting herto cite controlling contractors under the multi-employer doctrine. See Martin v. OSHRC,499 U.S. 144 (1991). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote28 ); document.write( ‘Close’ ); document.write( ” ); }Conclusion \u2013 We Should Uphold Long-standing PrecedentAs discussed above, and as recognized by many courts, it is often only the generalcontractor who can ensure safety and OSHA compliance at a construction site populatedby an array of subcontractors, particularly in the context of a dispute amongsubcontractors. By freeing the general contractor of any safety compliance obligations asthe controlling employer, my colleagues have ensured that there will be numeroussituations where no one on a construction site will have both the practical ability andlegal obligation to ensure safety compliance. With respect to those situations, they arereading section 5(a)(2) out of the Act and are creating a dangerous \u201cno-man\u2019s land\u201d ofsafety non-compliance.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For the reasons stated, I would not rewrite thirty years of history. I wouldmaintain our long-standing precedent and continue to hold that the Secretary has thelawful authority to apply the multi-employer doctrine to general contractors atconstruction worksites. In the context of over thirty years of precedent, I cannot jointhose who would reverse that precedent and further straitjacket the Secretary\u2019s lawfulexercise of prosecutorial discretion in protecting worker safety.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0I respectfully dissent.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\/s\/ \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Thomasina V. Rogers\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0CommissionerDated: April 27, 2007\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Secretary of Labor,\u00a0Complainant,\u00a0v.OSHRC Docket No. 03-1622Summit Contractors, Inc.,\u00a0Repsondent.\u00a0\u00a0Appearances:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Robert C. Beal, Esquire\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Robert E. Rader, Esquire\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Office of the Solicitor\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Rader &Campbell\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0U. S. Department of Labor\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Dallas, Texas\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Dallas, Texas\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For Respondent\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For Complainant\u00a0Before: Administrative Law Judge Ken S. Welsch\u00a0DECISION AND ORDER\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit Contractors, Inc. (Summit), contests a serious citation for violation of 29 C.F.R. \u00a7 1926.451(g)(1)(vii) issued on August 25, 2003, by theOccupational Safety and Health Administration (OSHA). The citation alleges thatSummit, as the general contractor for the construction of a college dormitory in LittleRock, Arkansas, failed to ensure that employees of a masonry subcontractor wereutilizing fall protection while working on scaffolds in excess of 12 feet above the ground. The citation proposes a penalty of $4,000. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The hearing was held in Little Rock, Arkansas, on January 27, 2004, andthe record remained opened until March 1, 2004, for the inclusion of two trialdepositions. Jurisdiction and coverage are stipulated (Tr. 4). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit does not dispute the existence of the violative conditions asdescribed in the citation. Summit asserts, however, that as general contractor whoneither created nor had employees exposed \u00a0to the fall hazard, it cannot be cited for the violation. Summit argues that the multi-employer worksite doctrine is invalid, and that it lacked sufficient control of the jobsiteas general contractor to prevent or abate the violation. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For the reasons discussed, Summit\u2019s arguments are rejected. The seriouscitation is affirmed and a penalty of $2,000 is assessed.Background\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit is in business as a general contractor overseeing constructionprojects. Its corporate office is located in Jacksonville, Florida. Summit employsapproximately 180 employees. It employs no construction trade employees (Tr. 258-259).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In December 2002, Summit and Collegiate Development Services, LP, thedeveloper for the property owner, entered into a construction contract to build newstudent housing for Philander Smith College in Little Rock, Arkansas. Summitcontracted to serve as general contractor and assumed the construction responsibilities forthe project (Exhs. C-7, JT -2, pp. 5-6). The proposed dormitory consisted of a three-storybuilding with 134 units comprising approximately 90,000 square feet (Exh. Jt-1, p. 42;Tr. 142, 192).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0To perform the construction work, Summit contracted approximatelyfifteen subcontractors and nine vendors if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote29 ); document.write( ‘Close’ ); document.write( ” ); } (Exh. C-6; Tr. 104). Summit\u2019s projectsuperintendent, Jimmy Guevara, and three assistant project superintendents worked at theproject coordinating the vendors, scheduling the work of the various subcontractors, andensuring that a subcontractor\u2019s work was performed in accordance with the subcontractagreement (Tr. 101-102, 110-111). Summit\u2019s project manager Jon Lee visited the sitetwice a month to check on the progress and schedules (Exh. Jt-1, p. 5; Tr. 102-103). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The site clearing and foundation preparation work began in January 2003. The framing work commenced on April 28, 2003 (Exh. Jt-1, p. 19; Tr. 103, 193). Summit\u2019s contract with the developer required Summit to complete the project in 150days. Otherwise, Summit was subject to paying liquidated damages (Exh. Jt-1, p. 19). The dormitory was completed on schedule on August 15, 2003 (Tr. 193). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit subcontracted All Phase Construction, Inc. (All Phase), tocomplete the exterior brick masonry work for the new building (Exh. Jt-1, p. 20, C-8; Tr.104). All Phase started the brick work on May 23, 2003 (Exh. C-9). To access thebuilding\u2019s exterior, All Phase leased scaffolds which it installed and moved as its brickwork progressed around the building (Tr. 202). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit\u2019s project superintendent Guevara testified that prior to OSHA\u2019sinspection, he had observed All Phase employees on the scaffold without using personalfall protection. The scaffold also lacked guardrails. Guevara stated that he told the AllPhase superintendent of the lack of fall protection and advised them to correct it (Tr. 116,119-120). According to Guevara, All Phase would implement fall protection until thescaffold was moved to another location when employees again would work without fallprotection. Guevara explained that this occurred two or three times prior to the OSHAinspection (Tr. 129).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On June 18, 2003, OSHA Compliance Officer (CO) Richard Watson,while driving to another inspection site, observed and photographed employees on ascaffold at the student housing project laying bricks approximately 12 feet above theground without fall protection (Exh. C-1; Tr. 33). After receiving permission from hisoffice to conduct an inspection, CO Watson returned to the project on June 19, 2003. Heagain observed and photographed employees on a scaffold laying bricks without fallprotection (Exhs. C-2, C-3; Tr. 37). Upon entering the project, CO Watson was informedby project superintendent Guevara that the masonry contractor was All Phase (Exh. C-9;Tr. 169). However, Summit would not permit CO Watson to conduct a walkaroundinspection until its safety officer who lived in Jacksonville, Florida, was present (Tr. 38,40). OSHA agreed to wait, and the walkaround inspection was performed on June 24,2003. However, All Phase was not on site (Exh. C-9; Tr. 38-40, 233-234). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As a result of CO Watson\u2019s observations on June 18 through19, 2003,Summit received a serious citation for violation of 29 C.F.R. \u00a7 1926.451(g)(1)(vii). AllPhase also received a citation which included an alleged violation of \u00a71926.451(g)(1)(vii) and a proposed penalty of $2,500 (Tr. 79, 81).\u00a0Discussion\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0It is undisputed that Summit did not create, nor was its employees exposedto, the lack of fall protection on the scaffold (Tr. 27). The scaffold was leased anderected by All Phase. There is no evidence that Summit or other subcontractors everused the scaffold or that their employees were exposed to a fall hazard. The exposedemployees were employed by All Phase, a subcontractor hired by Summit (Tr. 79, 83,202-203). CO Watson observed All Phase employees on the scaffold without fallprotection on two successive days (June 18 and 19, 2003).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit does not dispute that the cited standard, \u00a7 1926.451(g)(1)(vii),applies to the scaffolding conditions existing at the construction site or that All Phase\u2019semployees if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote30 ); document.write( ‘Close’ ); document.write( ” ); } were exposed to a fall hazard of 12 feet and 18 feet without personal fallprotection or a guardrail system on the scaffold (Tr. 26, 37). Section 1926.450(g)(1)(vii)applies to all scaffolds used in workplaces covered by the construction industrystandards. See 29 C.F.R. \u00a7 1926.450(a). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit stipulates that it was aware that All Phase\u2019s employees were notutilizing personal fall protection and that the scaffold lacked guardrails (Tr. 24, 48, 116). The lack of fall protection was open and obvious and in plain view from the street andSummit\u2019s jobsite trailer (Exhs. C-1, C-2; Tr. 33, 36-37, 46). Summit\u2019s superintendentinspected the jobsite once or twice each day, and his three assistants were on siteoverseeing the subcontractors\u2019 work. They were on the jobsite on June 18 and 19, 2003,at the time of the alleged violations (Tr. 137-138, 140, 200). On June 19, thesuperintendent had walked the jobsite prior to CO Watson\u2019s arrival (Tr. 140).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit\u2019s superintendent had observed the same violations several timesearlier by All Phase and had asked All Phase to correct the violations (Tr. 119-120, 122). Also, there is no dispute that the superintendent knew the scaffolding fall protectionrequirements since he had previously received OSHA training (Tr. 123). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Based on these undisputed stipulations, if Summit is found to havesufficient authority and control to prevent or abate the scaffold violation under the multi-employer worksite doctrine, a serious violation of \u00a7 1926.451(g)(1)(viii) is supported bythe record. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote31 ); document.write( ‘Close’ ); document.write( ” ); } Multi-Employer Worksite Doctrine \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Under the multi-employer worksite doctrine, an employer, including ageneral contractor who controls or creates a worksite safety hazard, may be liable forviolations of the Occupational Safety and Health Act (Act) even if the employeesexposed to the hazard are solely employees of another employer. A general contractormay be held responsible on a construction site to ensure a subcontractor\u2019s compliancewith safety standards, such as fall protection requirements, if it can be shown that thegeneral contractor could reasonably be expected to prevent or detect and abate theviolative condition by reason of its supervisory capacity and control over the worksite. Centex-Rooney Construction Co., 16 BNA OSHC 2127, 2129-2130 (No. 92-0851, 1994).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As it has argued in earlier cases, if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote32 ); document.write( ‘Close’ ); document.write( ” ); } Summit challenges the multi-employerworksite doctrine. In this case, Summit has moved for declaratory relief asserting thatthere is no basis in the Act and regulations for the multi-employer worksite doctrine. However, since the doctrine is based on \u00a0\u00a0\u00a0Review Commission precedent, it is not appropriate for a Commission judge to engage insuch declaratory relief. Also, the Commission has already rejected many of thearguments raised by Summit and discussed the basis for the doctrine. Access Equipment Systems, Inc., 18BNA OSHC 1718, 1723-1724 (No. 95-1449, 1999). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The multi-employer worksite doctrine, as applied by the ReviewCommission, has been accepted in one form or another in at least six circuits and rejectedoutright in only one. See U.S. v. Pitt-Des Moines, Inc., 168 F.3d 976 (7th Cir. 1999);R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815 (6th Cir. 1998); Beatty Equip.Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978); Marshall v. KnutsonConstr. Co., 566 F.2d 596 (8th Cir. 1977); Brennan v. OSHRC 513 F.2d 1032 (2d Cir.1975); and Universal Construction Company Inc v. OSHRC, 182 F.3d 726 (10th Cir.1999). But see Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In this case, Summit\u2019s office is located in Jacksonville, Florida, and theworksite at issue was in Arkansas. These states are located in the Eleventh and EighthCircuits where this case could be appealed. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote33 ); document.write( ‘Close’ ); document.write( ” ); } The Eight and Eleventh circuits have notrejected the multi-employer worksite doctrine. The Eighth Circuit has accepted thedoctrine. Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir. 1977) (an employerwho has control over an entire worksite must take whatever measures are \u201ccommensuratewith its degree of supervisory capacity\u201d). The Eleventh Circuit has not had anopportunity to rule on the doctrine. Although several employers have argued that theEleventh Circuit has rejected the multi-employer worksite doctrine based on earlier FifthCircuit case law, the Review Commission has ruled otherwise. McDevitt Street Bovis, Inc., 19 BNA OSHC 1108, 1111-1112 (No. 97-1918, 2000)(case law decidedby the former Fifth Circuit rejecting the multi-employer worksite doctrine does notpreclude application of the Review Commission\u2019s precedent regarding the doctrine in theEleventh Circuit). Additionally, Summit could appeal to the D. C. Circuit. Although theD.C. Circuit has questioned the doctrine\u2019s validity in a manufacturing plant in IBP, Inc.v. Herman, 144 F.3d 861 (D.C. Cir. 1998), if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote34 ); document.write( ‘Close’ ); document.write( ” ); } it did not specifically reject the doctrine. The multi-employer worksite doctrine is still viable before the Review Commission. McDevitt Street Bovis, Inc., Id. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Thus, Commission precedent and the applicable Circuit court precedent donot reject the multi-employer worksite doctrine.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In this case, Summit asserts that OSHA\u2019s Directive CPL 2-0.124 (\u201cMulti-Employer Citation Policy\u201d) issued by the Secretary on December 10, 1999, is notenforceable because it is contrary to the OSHA\u2019s published regulation at 29 C.F.R.\u00a71910.12. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Section 1910.12(a) provides in part that \u201c[e]ach employer shall protect theemployment and places of employment of each of his employees engaged in constructionwork by complying with the appropriate standards prescribed in this paragraph\u201d (emphasisadded). Summit argues that because \u00a7 1910.12(a) places safety responsibility on theemployer for its own employees engaged in construction work, OSHA\u2019s multi-employer worksite citation policy in OSHA Directive CPL 2-0.124 (\u201cMulti-Employer CitationPolicy\u201d) which permits citing a non-exposing and non-creating employer, is unenforceable.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit\u2019s argument regarding OSHA\u2019s multi-employer citation policy isrejected. The citation at issue alleges Summit violated \u00a7 1926.451(g)(1)(vii). In deciding thiscase, it is the applicable Review Commission precedent which determines if Summit, as ageneral contractor, is responsible for the alleged scaffold violation and not an internalguideline used by an OSHA compliance officer. The Review Commission does not consideran OSHA CPL or other internal directives as binding on the Commission, and may only lookto them as an aid in resolving interpretations under the Act. The CPL does not conferprocedural or substantive rights on employers and does not have the force and effect of law. Drexel Chemical Company, 17 BNA OSHC 1908, \u00a0\u00a01910, n. 3 (No. 94-1460, 1997). Also, Summit\u2019s reading of \u00a7 1910.12 is too narrow. Thestandard does not prohibit application of an employer\u2019s safety responsibility to employees of otheremployers.Summit\u2019s Control of the Worksite\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit concedes that it knew of All Phase\u2019s repeated failure to provide fallprotection or require employees to utilize personal fall protection while on a scaffold morethan 10 feet above the ground (Tr. 24, 26, 48, 116). The Secretary concedes that Summit wasnot a creating or exposing employer (Tr. 27, 79). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The issue in dispute is whether Summit had sufficient supervisory authority and controlof the student housing worksite to prevent and abate the violative condition which exposedAll Phase\u2019s employees to a fall hazard. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote35 ); document.write( ‘Close’ ); document.write( ” ); } As discussed, to determine whether a generalcontractor such as Summit is a controlling employer for purposes of multi-employerresponsibility, the general contractor must be in a position to prevent or correct a violation orto require another employer to prevent or correct the violation. Such control may be in theform of an explicit or implicit contract right to require another employer to adhere to safetyrequirements and to correct violations the controlling employer discovers. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit maintains that it is company policy not to be responsible for the safetyof a subcontractor\u2019s employees or for any OSHA requirements placed on subcontractors (Exh.Jt-2, pp. 4-5; Tr. 42). This policy is reflected in Summit\u2019s subcontract agreements and itssafety manual. Summit\u2019s subcontract with All Phase, as well as with its other subcontractors,provides that:All parties hereby agree that SUBCONTRACTOR has soleresponsibility for compliance with all of the requirements of theOccupational Safety and Health Act of 1970 and agrees toindemnify and hold harmless CONTRACTOR against any legalliability or loss including personal injuries whichCONTRACTOR may incur due to SUBCONTRACTOR\u2019sfailure to comply with the above referenced act. In the eventany fines or legal costs are assessed against CONTRACTOR byany governmental agency due to noncompliance of safety codesor regulations by SUBCONTRACTOR, such cost will bededucted, by change order, from SUBCONTRACTOR\u2019sSubcontract amount. (Exh. C-8, Attach A, section 4).\u00a0Summit\u2019s safety manual provides that: [b]ecause the subcontractors and sub-subcontractors are eachseparate employers, Summit is not legally responsible for theircompliance with OSHA. Nor would it be feasible or reasonablefor Summit to assume responsibility for any subcontractor\u2019scompliance with OSHA because Summit has no control over asubcontractor\u2019s hiring, training or disciplinary practices. (Exh.C-5, p. DOL 18). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0If a subcontractor\u2019s safety violations are observed, the safety manual providesthat: \u00a0If, during the normal course of operations, an open and obvioushazard is observed, Summit will contact the appropriate tradesupervisor\/foreman and ask that they correct the hazard. Summit encourages all trades to emphasize safety while theyare on the project. In cases where questions arise regardingsome safety or health issue, Summit\u2019s Director of Safety will, ifasked, act as a resource in an attempt to assist a subcontractorwith their question by providing copies of relevant standards orother helpful information (Exh. C-5, p. DOL 19). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Regardless of its stated company policy, if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote36 ); document.write( ‘Close’ ); document.write( ” ); } Summit, pursuant to the contractwith the owner\u2019s representative in this case, agreed to be responsible for the safety ofsubcontractors\u2019 employees. In its contract with Collegiate Development, the owner\u2019srepresentative, Summit, agreed to \u201cindemnify and hold harmless the Design-Builder, theOwner and their respective agents, servants and employees from and against claims, damages,losses and expenses, including but not limited to, attorneys\u2019 fees arising out of or resultingfrom performance of the Work, provided that such claim, damage, loss or expense isattributable to . . . . (e) liability imposed upon any Indemnified party directly orindirectly by Contractor\u2019s failure or the failure of any ofContractor\u2019s or a Subcontractor\u2019s employees to comply withany Occupational Safety and Health Administration (or relatedstatutes) violations and any penalties including enhancements,resulting in whole or in part from Contractor\u2019s acts or omissions. . . .\u201d (Exh. C-7, Section XII). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit also accepted responsibility \u201cfor initiating, maintaining andsupervising all safety precautions and programs in connection with the performance of theContract\u201d and to \u201ctake reasonable precautions for safety of, and shall provide reasonableprotection to prevent damage, injury or loss to: a. employees on the Work and other personswho may be affected thereby\u201d (Exh. C-7, Section XIII, para. A.1 and para. B.1). Summitagreed to \u201ccomply with applicable laws, ordinances, rules, regulations and lawful orders ofpublic authorities bearing on the safety of persons or property or their protection fromdamage, injury or loss (Exh. C-7, Section XIII, para. B.2). Summit acknowledgedresponsibility \u201cfor all general conditions work such as, but not by way of limitation, hoists,safety equipment, and portable toilets\u201d (Exh. C-7, Section I, para. F). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Based on these contractual obligations with the property owner\u2019srepresentative, Summit explicitly agreed to protect the safety of subcontractors\u2019 employees. The plain, unambiguous language of the agreement provides that Summit had to protect all\u201cemployees on the Work\u201d and \u201cother persons who may be affected thereby.\u201d Summit\u2019sformer vice-president defined the term \u201cWork\u201d to include any type of construction workperformed by any worker of a subcontractor (Exh. Jt-2, p. 16). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote37 ); document.write( ‘Close’ ); document.write( ” ); } If Summit failed to complywith these safety obligations, the owner had the right to terminate the agreement or to pursueother remedies (Exh. C-7, Section XXVII, para. A and C). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0When Summit attempts to avoid responsibility for the safety of subcontractors\u2019employees on a given construction project, it attaches an addendum to the general contractwith the owner. Summit normally uses a standard American Institute of Architects (AIA)contract form which holds the general contractor responsible. To the general contract,Summit attaches an addendum that expressly negates the responsibility for the safety of asubcontractor\u2019s employees (Tr. 247, 266-267). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0However, for thePhilander Smith College construction project, Summit did not avoid such responsibility andno addendum was attached to the general contract. Summit admits that the agreement withthe owner\u2019s representative was different from Summit\u2019s typical agreement (Tr. 247). Theagreement for this project was based on a form provided by the owner\u2019s representative. Summit did not write the contract or negotiate any changes (Exh. Jt-2, p. 5-6, 13).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Based on its agreement with the owner\u2019s representative, Summit contractedwith various subcontractors, including All Phase, to perform the actual construction work forthe new student housing. Summit used its standard subcontract agreement form which it required allsubcontractors to sign (Exh. Jt-1, pp. 49-50). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The subcontract with All Phase also establishes Summit\u2019s requisite controlover the safety of All Phase\u2019s workers. In Article 6 of the subcontract with All Phase, the SUBCONTRACTOR agrees to be bound to CONTRACTOR bythe terms and conditions of the General Contract betweenCONTRACTOR and OWNER as well as this SubcontractAgreement and hereby assumes towards the CONTRACTOR allof the duties, obligations and responsibilities applicable toSUBCONTRACTOR\u2019s work which the CONTRACTOR owestowards the Owner under the General Contract. (Exh. C-8) \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit also required the subcontractor to \u201ccomply with all laws, ordinances, rules,regulations and orders of any public authority bearing on the performance of the Work\u201d (Exh.C-8, Art. 9). The subcontract required All Phase to warrant and guarantee that all of its workwould be \u201cin compliance with all federal, state and local codes and requirements (Exh. C-8, Art. 15). Although the subcontract attempts to place responsibility for compliance with theOccupational Safety and Health Act (Act) on the subcontractor, the subcontractor is requiredto hold Summit harmless against any liability, including the assessment of OSHA fines andlegal costs. Summit is reimbursed for fines assessed and legal costs incurred as a result of thesubcontractor\u2019s failure to comply with safety requirements. Summit retained the authority todeduct the OSHA fines and legal costs from the subcontract amount by change order. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Additionally, other provisions of the subcontract shows Summit\u2019s control overthe safety of All Phase\u2019s employees. All Phase\u2019s subcontract provided that the subcontractorcould not subcontract without the prior written consent of Summit, and Summit had solediscretion on whether to approve a subcontractor\u2019s subcontractor. Also, subcontractors wererequired to keep their work areas clean and orderly subject to Summit\u2019s approval. Thesubcontract required All Phase to have on site at all times a \u201ccompetent superintendent andnecessary assistants all approved by\u201d Summit, one of which had to be able to speak English(Exh. C-8, Attachment A, para. 17, 33, 45). All Phase agreed that \u201cany scaffolding installedby SUBCONTRACTOR to install this scope of work shall be OSHA approved\u201d– meaningthat it would comply with OSHA regulations (Exh. C-8, Attachment B, para. 20). Summitrequired that All Phase comply with all governing laws imposed by all Federal governingauthorities, including the Occupational Safety and Health Act (Exh. C-8, Attachment A, para.42 and Attachment B, preamble). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Moreover, Summit\u2019s control over All Phase\u2019s worksite is addressed inparagraph 5 of Attachment A to the subcontract (Exh. C-8) which provides that:All parties hereby agree that control of the Work Schedule, useof the site and coordination of all on-site personnel will beperform under the complete direction of CONTRACTOR\u2019ssupervisory staff. CONTRACTOR may enforce uponSUBCONTRACTOR\u00a0 any of the following actions in order to expedite or coordinatethe work. However, CONTRACTOR does not assume anyliability for delays to SUBCONTRACTOR or third parties inconnection with coordination of on-site personnel. Theseactions include, but are not limited to, the following:\u00a0A) Designated storage, designated unloading and parkingareas.\u00a0B) Require unacceptable materials, equipment or vehicles tobe removed from the project.\u00a0C) Limit the use of the site by SUBCONTRACTOR\u2019sequipment, vehicles, personnel or stored materials.\u00a0D) Temporarily or permanently bar specific personnel fromthe site. Listed below is a partial list of reasons to deny aperson access to the project.\u00a01) Drug or alcohol use2) Fighting, possession of weapons3) Theft4) Harassment of anyone on or off the project5) Personal use of the areas near the projectlimits for parking, eating, sleeping, etc.6) Failure to cooperate with CONTRACTOR\u2019ssupervisory personnel or comply with projectdocuments.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit\u2019s authority explicitly granted by a combination of contract provisionsis broad enough to necessarily involve subcontractor employees\u2019 safety. Summit heldauthority over the \u00a0\u00a0subcontractor\u2019s actions, as well as authority over conditions affecting general safety on theworksite. The authority granted Summit mirrored how Summit actually controlled theproject. In addition to accepting responsibility for compliance with OSHA\u2019s safetyrequirements in its contract with the owner, and by requiring its subcontractors to holdSummit harmless for a failure to comply, Summit held sufficient authority and control overthe worksite and the safety of the employees.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Review Commission considers supervisory authority and control sufficientwhere the general contractor has specific authority to demand a subcontractor\u2019s compliancewith safety requirements, stop a contractor\u2019s work for failure to observe safety precautions,and remove a contractor from the worksite. McDevitt Street Bovis, Inc., supra. Summit heldthis control over All Phase.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Thirty-eight employees of four subcontractors including All Phase wereworking on the student housing project on June 18 and 19, 2003 (Exh. C-9). Summit\u2019sproject superintendent and his three assistants were also present on site. The assistants wereassigned to particular locations in the building where the subcontractors performed their jobs,and the project superintendent inspected the site twice daily to ensure progress and quality ofwork. Summit kept track of the subcontractor\u2019s activities on the worksite. Guevara, asproject superintendent, prepared a project diary and daily report at the end of the day whichdetailed the activities performed by the subcontractors and the occurrence of any problems(Exh. C-9). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent held the power to hire and fire subcontractors (Tr. 104, 109, 149-150). Summit controlled the sequencing of work, telling subcontractors when to start andfinish their work (Tr. 109, 144). Summit controlled the quality of work, ensuring throughinspections that subcontractors performed their work in accordance with the contractspecifications and blueprints (Tr. 109-111). Summit had authority to correct deficiencies inthe work of the subcontractors (Tr. 144). Summit conducted injury investigations foremployees of subcontractors who were injured at the worksite (Exh. C-9, entry April 16,2003; Tr. 163-167). At the preconstruction meeting, Summit conducted a safety presentationwhich included fall protection and invited subcontractors to attend (Tr. 213-214).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0If, during the normal course of his activities, Summit\u2019s superintendentobserved an obvious safety concern, the superintendent requested the subcontractor to rectifythe hazard immediately (Tr. \u00a0\u00a0222, 244). This is what superintendent Guevara advised several times prior to the OSHAinspection. He mentioned to All Phase at least twice that its employees were not using fallprotection while laying bricks from the scaffold (Tr. 120, 129, 205). As recognized bysuperintendent Guevara, subcontractors generally complied with his safety warnings (Tr.129). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit\u2019s claim that it has only a limited ability to require a subcontractor tocorrect safety violations is disingenuous. The subcontract which Summit drafted and requiredsubcontractors to sign in order to work on the student housing project retained Summit\u2019sauthority to terminate, suspend or withhold contract payments from any subcontractor whofailed to abide by its directions. Summit, not the subcontractors, dictated the terms of thesubcontract and what occurred on the worksite. Guevara testified that subcontractors neverrefused any of its requests concerning safety (Tr. 113, 129). This shows a recognition by thesubcontractors of Summit\u2019s control and authority over the worksite. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As a general contractor, Summit held a unique position on the constructionproject. The subcontract agreement provided Summit multiple methods to enforce AllPhase\u2019s compliance with OSHA requirements. Summit chose the subcontractors for thework, controlled the scheduling of their work, and could enforce penalties or ultimatelyterminate the subcontract if the subcontractor failed to meet its schedule. Summit had theright to terminate All Phase for convenience or for cause if the subcontractor failed to\u201cperform the Work in Accordance with the Contract Documents,\u201d disregarded \u201cLaws, Codesor Regulations of any public body having jurisdiction, or \u201cotherwise violates in any wayprovisions of the Contract Documents\u201d (Exh. C-8, Art. 14(b)). This right included the power to fire a subcontractor for the violation of OSHA regulations (Exh. Jt-1, pp. 14-15). Although termination of a subcontractor could cause serious problems with the scheduling;nevertheless, Summit has exercised that ultimate control when necessary. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit also had the right to exclude All Phase from the jobsite and to takepossession of the Work (Exh. C-8, Art. 14). Summit could temporarily or permanently barspecific personnel of All Phase from the jobsite for failure to cooperate with Summit\u2019ssupervisors (Exh. C-8, Attachment A, para 5). In fact, Summit\u2019s safety and health manualcontemplated that a partial or total work stoppage might be required until corrective action istaken (Exh. C-5, p. 72). In Article 14 of the subcontract \u00a0agreement, Summit retained the authority to suspend the subcontractor for not more than 90days without cause. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0If termination or suspension were too harsh a remedy, the subcontract providedother methods by which to enforce All Phase\u2019s compliance with OSHA. Summit had theright to retain 10 percent of the contract amount until All Phase satisfied all of its contractualobligations (Exh. C-8, Art. 3(d); Tr. 114-115). Summit\u2019s safety policy also provides thatthe project superintendent could solicit assistance from Summit\u2019s safety director or the project manager (Tr. 222, 229-230). In fact,the project superintendent testified that when he had encountered a problem with a roofingsubcontractor during a rain, he took the problem to his project manager who corrected it bydealing directly with the subcontractor\u2019s officers (Tr. 169-171). This was not done, however,when All Phase repeatedly failed to require fall protection for employees (Tr. 231). \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Within its control and authority over the safety of All Phase employees,Summit failed to exercise reasonable care. Summit had observed scaffolding violationsseveral times by All Phase prior to the OSHA inspection. On each occasion, Summit did nomore than ask All Phase to correct the violation. Despite having knowledge of the June 18and 19 violations at issue, Summit did not request All Phase to correct the violations (Tr. 121-122). Instead Summit rescheduled the OSHA inspection to June 24, 2003, when All Phasewas not onsite. There is no showing that Summit took any corrective action such as inspectingAll Phase for fall protection requirements, conducting worksite safety meetings or training,and enforcing compliance with a graduated system of enforcement.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit\u2019s violation of \u00a7 1926.451(g)(1)(vii) is established.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Serious Classification\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In order to establish that a violation is \u201cserious\u201d under \u00a7 17(k) of the Act, theSecretary must establish that there is a substantial probability of death or serious physicalharm that could result from the cited condition and the employer knew or should have knownof the violation. Showing the likelihood of an accident is not required. Spancrete Northeast,Inc., 15 BNA OSHC 1020, 1024 (No. 86-521, 1991).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Summit\u2019s violation of \u00a7 1926.451(g)(1)(vii) is properly classified as serious. Summit stipulates that it knew of the lack of fall protection by All Phase employees. Itsemployees were exposed to falls of 12 feet or 18 feet from a scaffold to the ground. Such afall could cause serious physical harm or possibly death.Penalty Consideration\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In determining an appropriate penalty, consideration of the size of theemployer\u2019s business, history of the employer\u2019s previous violations, the employer\u2019s good faith,and the gravity of the violation is required. Gravity is the principal factor.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Having 148 employees and a history of past serious citations, Summit is notentitled to credit for size or history. However, Summit is entitled to credit for good faith. There is no showing that Summit\u2019s safety program is inadequate in protecting its employees. Although its company\u2019s policy is to avoid safety responsibilities for subcontractors\u2019employees, Summit does attempt to advise subcontractors of known safety hazards. \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0A penalty of $2,000 is reasonable for Summit\u2019s violation of \u00a71926.451(g)(1)(vii). Summit was the general contractor and had no employees exposed to thelack of fall protection. Summit did not create the unsafe condition. The subcontractor whocaused the violation and had employees exposed received a $2,500 penalty from OSHA. \u00a0FINDINGS OF FACT ANDCONCLUSIONS OF LAW\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The foregoing decision constitutes the findings of fact and conclusions of lawin accordance with Rule 52(a) of the Federal Rules of Civil Procedure.ORDER\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Based upon the foregoing decision, it is ORDERED:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Serious violation of \u00a7 1926.451(g)(1)(vii), is affirmed and penalty of $2,000 isassessed.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\/s\/ Ken S. Welsch \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0KEN S. WELSCHDate: June 14, 2004\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Judge”