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Appeals Court Backs OSHA Citation Policy

On December 14, 2010, just nine days after hearing oral arguments, the D.C. Circuit Court of Appeals joined the Eighth Circuit in rejecting Summit Contractors, Inc.’s long effort to avoid an OSHA citation for its failure to properly oversee the safety performance of a subcontractor on one of its construction projects in 2003.

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LIUNA General President Terry O’Sullivan

Praising the Court’s judgment, LIUNA General President Terry O’Sullivan said, “This decision may finally dispel the fantasy that, somehow, general contractors can avoid responsibility for their sites’ safety and health conditions by simply saying, ‘We had nothing to do with what the subcontractor did.’ In every other respect, the general contractor manages the project and ensures subcontractor compliance. Why should safety and health be an exception?”

In 2007, through the National Construction Alliance, LIUNA had filed an amicus brief in the case, Secretary of Labor v. Summit Contractors, Inc., after the Occupational Safety and Health Review Commission (OSHRC) – a Presidentially-appointed panel that hears appeals of OSHA citations – determined that OSHA had overstepped its authority in citing Summit for the failure of its subcontractor to use electrical equipment with ground fault circuit interrupters (GFCIs) as required by the agency’s electrical wiring standard (1926.404(b)(1)(ii)). Bush era appointees had disturbed decades of settled administrative law by construing language in the OSHA Act to bar citations if the general contractor’s employees were not actually on the worksite where and when the violation occurred. As a matter of fact, however, Summit had ordered the electrical parts for its subcontractor but had not examined them before use.

In 2009, Obama Administration Secretary of Labor Hilda Solis appealed the OSHRC ruling to the Eighth Circuit Court of Appeals (the Summit project in question was located in that region) and prevailed in a decision that said Summit was the “controlling employer” on the site and could have – should have – known about the unsafe equipment used by its subcontractor. Forced to reconsider its earlier determination, the OSHRC reversed itself and, in 2010, affirmed OSHA’s original citation. Stubbornly bucking the odds, Summit appealed the OSHRC’s reversal.

Summit raised three arguments, all rejected by the appeals court in D.C. Rather than weakening the multi-employer citation policy, the court – which is considered the nation’s judicial authority on administrative law – instead gave it a powerful boost. Nevertheless, while an appeal is considered doubtful, Summit could argue that because the Fifth Circuit once took exception to the citation policy – in 1981, the only court to ever do so – its case now warrants a Supreme Court review.

There is simply no common sense behind the view that general contractors are not responsible for all conditions – safety included – on their sites,” says O’Sullivan, “and 30 years of legal precedence have affirmed this logic. It’s time for reluctant employers like Summit to accept their responsibility and get fully onboard with subcontractor safety oversight.”

Despite the long appeals process, OSHA never relaxed its multi-employer citation policy because, as long as the case was under appeal, it was not required to do so. In addition, insurers were generally unwilling to write coverage for general contractors who would not hold subcontractors to OSHA standards. Thus, despite Summit’s efforts, general contractor accountability for subcontractor safety never deviated from the long-accepted norm.

[Steve Clark]

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