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Eighth Circuit Overrules Review Commission in OSHA/Summit Multi-Employer Case

Mar 3, 2009 12:30 PM, by Stephen C. Yohay

The U.S. Court of Appeals for the Eighth Circuit, in a 2-1 decision, ruled that in the case of Elaine Chao v. Summit Contractors, OSHA regulation 29 C.F.R. Sec. 1910.12(a) “is unambiguous in that it does not preclude OSHA from issuing citations to employers for violations when their own employees are not exposed to any hazards related to the violations.” Therefore, according to the ruling, the Occupational Safety and Health Review Commission (OSHRC) “abused its discretion in determining that the controlling employer citation policy conflicted with the regulation.”

The Court of Appeals for the Eighth Circuit did suggest,, that OSHA's overall multi-employer policy may need to go through rulemaking.

Summit Contractors Inc. was the general contractor for the construction of a college dormitory in Little Rock, Ark. Summit subcontracted the exterior brick masonry work to All Phase Construction Inc. In June 2003, an OSHA compliance officer observed All Phase employees working on scaffolds over 10 feet above the ground without fall protection or guardrails in violation of 29 C.F.R. § 1926.451(g)(1)(vii).

None of Summit’s employees were exposed to any hazard created by the scaffold violation, but OSHA nonetheless cited Summit for this violation based on the “controlling employer” aspect of OSHA’S so-called multi-employer citation policy.

Summit contested the citation, arguing that OSHA's regulation, 29 C.F.R. § 1910.12(a), requires an employer engaged in “construction work” to protect only its own employees, not those of any subcontractor. That regulation applies only to “construction work,” not “general industry” (operations and maintenance). Therefore, according to Summit, § 1910.12(a) precluded citations to a controlling employer whose own employees were not exposed to a hazardous condition created by another contractor on the jobsite.

The administrative law judge upheld the citation, but in a 2-1 decision, the OSHRC reversed and held that § 1910.12(a) requires each employer to protect only its own employees.

On Feb. 26, in a 2-1 decision, a three-judge panel of the United States Court offor the Eighth Circuit in St. Louis reversed OSHRC and held that §1910.12(a) does not preclude the citation to Summit, even though the general had no employees exposed to the unguarded scaffold. Essentially, the court deferred to OSHA on the ground that the citation reflected one of several reasonable interpretations of the ambiguously worded regulation (Solis v. Summit Contractors., 2009 U.S. App. LEXIS 3755 (8th Cir. 2009)).

The vigorous dissenting opinion adopted the view that the regulation is clear, and that is does not allow citations to employers whose employees are not exposed to the cited condition.

The decision, while important for construction work, does not resolve the long-standing debate over OSHA’s multi-employer citation policy. The decision is narrow, it is not unanimous, and it only addressed the meaning of 29 C.F.R. § 1910.12(a). The court expressly did not evaluate the overall policy, and even suggested that OSHA might need to conduct rulemaking on the policy as a predicate to its continued use in enforcement.

There also is a hint that the basic question whether Section 5(a)(2) of the act permits multi-employer citations for violations of standards could be open for further litigation. The court also stated that to be subject to a multi-employer citation, an employer must have employees at the cited worksite, a point that could become significant in the current rulemaking on the proposed cranes and derricks standard for construction. Given all this, it is fair to expect that challenges to the multi-employer policy will continue to be raised.

Stephen C. Yohay is a shareholder in the Washington, D.C. office of Ogletree Deakins Nash Smoak & Stewart

Nevada panel approves more worker safety training

see update directly below (May 2009)

April 2009 By BRENDAN RILEY CARSON CITY, Nev.

A measure to reduce on-the-job deaths by mandating safety training and to ensure there's proper oversight by government agencies was endorsed by a Nevada Assembly panel.

The Assembly Commerce and Labor Committee voted Monday for AB148, which was written following the deaths of 12 workers at Las Vegas Strip construction sites over an 18-month period.

AB148, now moving to the Assembly floor, requires 10 hours of safety training for employees and 30 hours of safety training for supervisors. Companies would have to drop workers that don't get the training in a timely manner.

During earlier testimony on the bill, the mothers of two men killed in industrial accidents said more safety training is needed and federal authorities should have more authority over Nevada's Occupational Safety and Health Administration.

Tracy Carrillo, whose son Brian Sparkman, an iron worker, died in a Reno hospital after falling off a 42-foot-high building in 2007, pressed for more training.

Debra Koehler-Fergen's son, Travis Koehler, and another maintenance worker died in 2007 from toxic fumes while working at the Orleans hotel-casino in Las Vegas. Koehler-Fergen said a "cover-up" in the Orleans case shows why there should be more federal oversight.

Also backing the bill was Danny Thompson, head of the state AFL-CIO, who said worker safety training is needed statewide and not just in the Las Vegas area. He mentioned an explosion several years ago at a recycling plant in northern Nevada that killed one worker and severely burned four others. The workers were draining aerosol cans by puncturing them with metal spikes.

Nevada OSHA chief Tom Czehowski also has endorsed the bill, along with Lesley Pittman, representing Perini Building Co., the general contractor for the $9.2 billion CityCenter on the Strip.

Safety concerns came to a head last year after the death of a sixth worker at the CityCenter project. That led to a one-day strike by workers to protest conditions, and federal state and local officials increased their oversight.

With Little Aid from Expected Allies, OSHA Overhaul Died.

Las Vegas, Nevada

By Alexandra Berzon May 3, 2009

Twelve construction worker deaths on the Strip, an outcry over weak safety enforcement by state regulators and a massive worker walkout captured the attention of state legislators over the past year, including the chairwoman of the Senate Commerce and Labor Committee and the Assembly majority leader.

But the Nevada Legislature’s response to the safety problems won’t approach the sweeping transformation seen in other localities – notably New York City – following construction deaths and the documentation of weak safety oversight.

After half a dozen hearings, two modest changes in workplace safety are making their way through the Assembly and the Senate. One would require construction workers to undergo 10 hours of safety training. The other would direct the state’s Occupational Safety and Health Administration to call family members of workplace accident victims after investigating a fatality.

Safety experts say the proposals could help address some of the problems here. But they fall far short of changes some originally envisioned.

“It’s just a matter of priorities and a matter of what can be done,” said Danny Thompson, executive secretary-treasurer of the state’s AFL-CIO, who has sat on an OSHA advisory board for more than a decade.

Thompson said unions are confronting more pressing priorities this session, including fending off public employee layoffs and salary cuts, and promoting workers’ compensation reform.

The story of why efforts at sweeping reform of workplace safety stalled at the state level reveals the difficulty legislators have of accomplishing change when the people most likely to push the issue and with the most expertise are focused on other matters.

•••

State Sen. Maggie Carlton grew alarmed last year, reading headline after headline about workers dying on the Las Vegas Strip.

“I was reading the stories of the families and I looked up at my husband over coffee in the morning and I said, ‘This is just flat-out wrong. People are dying on the job site and it seems like nothing is really happening.’?”

The casualty that stood out to her was operating engineer Harvey Englander, who was crushed by a manlift in the second of five accidents that would kill six workers at CityCenter. During a settlement conference, Nevada OSHA deleted all the violations found at the construction site following Englander’s death.

In June, Carlton took note when workers walked off the job over alleged safety violations by contractors at CityCenter, the largest private commercial project in the country. They were led by Building and Construction Trades Executive Secretary-Treasurer Steve Ross.

“I thought, if he’s willing to take his guys out on a walkout over this, then this is really serious,” Carlton said. “We should be looking into this.”

A month later she submitted a bill draft to make “various changes to provisions governing occupational safety and health.” Her planned bill’s chances improved in November, when Democrats gained control of both state houses and she was named head of the Senate Commerce and Labor Committee.

Meanwhile, Clark County Commissioner Chris Giunchigliani had also become alarmed by the worker deaths and arranged a safety round-table with Ross, who is also a member of the Las Vegas City Council.

After speaking with Giunchigliani, Carlton figured a consensus would emerge form those sessions that could be proposed in her bill draft.

The group met once in June and again January, after getting snowed out in December. But a concrete policy proposal never emerged.

Ross had a different strategy, one that attracted the strong support of contractors and other union leaders, unlike Carlton’s efforts.

Ross said early on that he thought neither contractors nor OSHA held the key to safer construction sites. Instead, the key was to change the behavior of workers, and the cultural attitudes toward safety on job sites, he said. And the only way to do that was to require safety training.

“I thought, ‘What is going to change this is to change the safety culture and safety processes, and how craftsmen and women are thinking,’?” Ross said in an interview last week. “We needed that message to be clear.”

At Ross’ request, Assemblyman John Oceguera, who became the Assembly majority leader, held a bill draft open that would require 10 hours of OSHA-certified safety training.

•••

Carlton, meanwhile, thought ineffective safety law enforcement by Nevada OSHA needed to be addressed. She became more convinced after learning that high-level officials at the Business and Industry Department had interfered with an OSHA investigation to reduce violations related to an accident at the Orleans that caused two fatalities.

At the time Carlton didn’t know a lot about OSHA.

Although she has studied workers’ compensation, an issue that is perennially addressed at the Legislature, workplace safety measures hadn’t come up since the late 1990s. Nevada OSHA is required to be at least as effective as the U.S. Labor Department’s OSHA, a situation that adds complexity to the issue.

Carlton was counting on labor groups with expertise in OSHA issues to come forward, as they often do to push OSHA legislation at the federal level. None did.

Carlton said she called Ross and left messages, but never heard back.

“I was like, ‘Wait a minute, you said this is a priority and you wanted to do something,’?” Carlton said.

Ross said that except for newspaper reporters’ calls, he always returns phone messages.

Realizing she would have to write the bill herself, Carlton began cramming on workplace safety and putting an office extern on the subject.

In March, she challenged OSHA officials’ track record during heated testimony. She had expected union officials to testify at the hearing and to bring family members of workplace accident victims, but they didn’t show up.

Union leaders said their absence was due to a “miscommunication.” Family members who were interested in testifying said Carlton never reached out to them.

Union members, leaders and family members did speak at a hearing the following week.

They also made a strong showing at a hearing on Oceguera’s training bill around the same time. When Marcus Conklin, chairman of the Assembly Commerce and Labor Committee, asked those at the hearing if there were any objections to the bill, no one spoke up.

Behind the scenes, however, people were scrambling to sort out objections by OSHA officials, who thought the legislation placed too large a burden on the agency to regulate the training called for in the bill. Eventually the bill toned down mandatory involvement of OSHA.

It wasn’t until a Senate hearing weeks later that the objections were raised publicly by Northern Nevada contractors concerned that it would be too difficult to train so many workers so quickly.

The Assembly Ways and Means Committee has yet to vote the bill out of committee.

With no help forthcoming, Carlton realized she would have to take on the agency herself. She decided that removing OSHA from the Business and Industry Department and creating a stand-alone agency would address what she saw as problematic influence.

With a deadline approaching, staff lawyers used established language to propose placing OSHA under an existing body – the Review Board, which currently hears OSHA cases that have been appealed.

This wasn’t what Carlton had intended, but she didn’t have the time or expertise to create a stand-alone agency at that point.

Facing sure defeat, Carlton deleted the entire bill and added a provision intended to improve family members’ knowledge of the process. OSHA officials agreed not to object to that provision, unlike her other ideas, she said.

•••

People involved point to a combination of factors to explain why Carlton didn’t get more assistance. She didn’t reach out strongly enough to the labor community, some say. Others say that OSHA is too complicated a body to restructure in a single legislative session.

“Maggie took on the whole OSHA thing, which is huge to try to do,” said Giunchigliani, a former assemblywoman. “Making change in Carson City at one time is generally not going to happen.”

Carlton didn’t get as much help as she expected from the unions because they thought addressing other issues was more realistic and more pressing, Thompson said.

Another problem was that no one settled on a root cause of the problem to be fixed and how to best address it.

Ross thought training was the problem. Carlton thought more independent regulators would help.

Giunchigliani focused on administrative problems at OSHA, which she thinks are better addressed by the executive branch than by the Legislature.

“OSHA has not been advocacy-oriented and willing to go out and initiate changes as they can and should,” Giunchigliani said. “We need someone to come in with a different perspective. Unfortunately it’s the same old, same old, and until that culture changes you’re not going to have a fundamental change at OSHA.”

OSHA chief Tom Czehowski testified that the agency was caught off guard by massive Strip construction because it could not pay inspectors enough. As a result, the most qualified ones left the agency, he said.

Any request for more money this session would be a tough sell.

“If it costs money it’s probably not going to go this session,” Thompson said. “They’re talking about laying off schoolteachers.”

Yet, Sen. Randolph Townsend says the Legislature may yet see more OSHA proposals this session.

Townsend, a Republican, is a former chairman of the Senate Commerce and Labor Committee. He no longer sits on the committee and hasn’t been involved in the OSHA discussions this session, but he said last week he plans to introduce an amendment to one of the workers’ compensation bills that would require contractors on very large projects to pay for OSHA inspectors to be on site at all times.

He has not written the bill yet and acknowledged that it may end up instead requiring private safety professionals on the job site, which could have a different effect.

“The structure in place didn’t really accommodate for the kind of growth we saw in Las Vegas,” Townsend said.

Carlton said that in retrospect she wishes she had maneuvered differently. She would have started researching and writing legislation sooner if she realized she wasn’t going to get help, she said.

She, like Townsend, will be termed out of the next session. She hopes someone else will take on the issue.

“This was a team effort, and I didn’t have the team to get it done,” Carlton said.