U.S. Court of Appeals for the Eighth Circuit
The Occupational Safety and Health Administration (OSHA) cited Summit, as the general contractor for the construction of a college dormitory in Little Rock, Ark., for failure to ensure that employees of a masonry subcontractor were using fall protection while working on scaffolds more than12 feet above the ground. OSHA cited Summit under its "Multi-employer citation policy" on the theory that Summit "controlled" the worksite and therefore had a duty to detect violations by subs and compel them to correct violations.
Summit challenged the citation and the legality of OSHA's multi-employer policy in an action for declaratory relief, asserting that there was no basis in the act and regulations for the multi-employer worksite doctrine. OSHRC Administrative Law Judge Welsch held that under OSHA Review Commission case law (which essentially adopts OSHA's multi employer policy), Summit was responsible for ensuring compliance by a subcontractor, and affirmed the citation against Summit.
Summit petitioned the Review Commission to review the Administrative Law Judge's decision and review was granted. The essence of Summit's Petition for Review is that neither the OSH Act nor any validly promulgated regulation imposes a duty on one employer to ensure that some other, separate employer complies with OSHA; there is no statutory or regulatory authority for OSHA to issue citations and levy fines against one employer for violations committed by another employee; and OSHA therefore had no legal authority to cite Summit on the theory that Summit should have ensured that the masonry subcontractor complied with the OSHA regulations.
NAHB joined the Texas Association of Builders (TAB) and the Greater Houston Builders Association (GHBA) in filing an amicus brief in support of Summit in March 2005. On April 27, 2007, the Occupational Health and Safety Review Commission vacated the decision against Summit. On May 16, 2007, OSHA appealed the decision to the Eighth Circuit Court of Appeals.
In the appeal to the Eighth Circuit, NAHB joined TAB and GHBA in filing an amicus brief in support of Summit on Oct. 3, 2007, and the court heard oral argument on Jan. 17, 2008. On Aug. 11, 2008, NAHB responded to the court's request, conveyed through Records Clerk on July 30, 2008, for the following information, available from publicly-available documents: the number of new residential housing units (both single-family and attached) that NAHB builder members build annually, their annual revenue and the relative sizes of such residential home builders.
On Feb. 26, 2009, the court ruled that the Department of Labor's regulation does not preclude OSHA from issuing citations to employers who have the ability to prevent or abate hazardous conditions created by subcontractors — regardless of whether the employer created the hazard — or for violations in which their own employees are not exposed to any hazards related to the violations. The court said that OSHRC had abused its discretion in determining that the controlling employer citation policy was in conflict with the regulation.