Summit Contractors, Inc. v. Secretary of Labor
Docket: No. 10-1329
Court: Court of Appeals for the D.C. Circuit; December 13, 2011; Federal Appellate Court
The court denied Summit Contractors, Inc.'s petition for review of a citation issued by OSHA for failing to provide ground fault circuit interrupters (GFCI) for a portable generator and a spider box at a job site, violating 29 C.F.R. 1926.404(b)(1)(h). Although Summit’s employees were not exposed to the hazard, it was deemed a 'controlling employer' and a 'creating employer' due to its overall authority at the site and its acquisition of the non-compliant equipment. Summit's appeal included three challenges to the Occupational Safety and Health Review Commission's (OSHRC) decision. First, Summit argued that OSHA's Multi-Employer Citation Policy should have undergone notice and comment rulemaking under the Administrative Procedure Act (APA). The court found this argument flawed because the policy is a general statement of agency position exempt from such requirements. Additionally, the ALJ and OSHRC based their ruling on established precedent regarding general contractor liability, not on the Citation Policy. Second, Summit contended that multi-employer liability conflicts with 29 U.S.C. 653(b)(4) of the OSH Act, which states that the Act should not alter common law duties or liabilities of employers. Summit suggested that general contractors must ensure their subcontractors’ compliance with OSHA standards, potentially creating a common law duty of care that could increase liability. The court found all challenges to be without merit, affirming the citation and OSHRC's ruling. Liability for violations under the Occupational Safety and Health Act (OSH Act) arises from a court's future actions under state law, not from the OSH Act itself, as articulated in United Steelworkers of Am. v. Marshall. Summit's claim that the Secretary did not prove its knowledge of the violation is addressed by the OSH Act's requirement that an employer can be held liable if it had actual or constructive knowledge of the violation. Constructive knowledge is established if the employer, through reasonable diligence, could have known of the violative conditions. This includes imputed knowledge from supervisors. Substantial evidence indicates that Summit could have discovered the violation with reasonable diligence, as their agreement with the subcontractor allowed for temporary electrical services, and a Summit supervisor ordered the electrical equipment but failed to ensure it was equipped with Ground Fault Circuit Interrupter (GFCI). The supervisor's reliance on the assumption that all spider boxes contained GFCI is undermined by evidence showing that only six of eighteen boxes rented had GFCI. The court dismissed Summit's challenges and noted that it need not consider the Secretary's argument regarding collateral estoppel. The Clerk will withhold the issuance of the mandate until seven days after any timely petition for rehearing is resolved.