F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 28 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNIVERSAL CONSTRUCTION
COMPANY, INC.,
Petitioner,
v. No. 98-9519
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION,
Respondent.
APPEAL FROM
OCCUPATIONAL SAFETY HEALTH REVIEW COMMISSION
(No. OSHRC 97-1946)
Roy Bash (William E. Quirk and Michael J. Elston with him on the brief),
Shughart Thomson & Kilroy, P.C., of Kansas City, Missouri, for the petitioner.
Bruce Justh, Counsel for Appellate Litigation, (Marvin Krislov, Deputy Solicitor
for National Operations, and Joseph M. Woodward, Associate Solicitor for
Occupational Safety and Health, with him on the brief), U.S. Department of
Labor, of Washington, D.C., for the respondent.
Before KELLY, McWILLIAMS, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
Petitioner Universal Construction Company appeals a final order of the
Occupational Safety and Health Review Commission affirming the imposition of
a penalty against Universal under the “multi-employer worksite” doctrine, based
on a subcontractor’s violation of construction safety standards. We affirm.
The parties have stipulated to certain facts. Universal is a general
contractor engaged in the construction business. In December 1996, Universal
contracted with UMB Bank to construct a branch bank office in Independence,
Missouri, and shortly thereafter, subcontracted with A. Zahner Sheetmetal
Company to perform portions of the project.
On October 6, 1997, an Occupational Safety and Health Administration
compliance officer visited the project worksite and observed a Zahner employee
violate two OSHA construction safety standards. An employee working in an
aerial lift failed to wear and attach a safety belt to the lift basket, in violation of
29 C.F.R. § 1926.453(b)(2)(v), and the employee climbed out of the lift basket
onto a building roof, in violation of 29 C.F.R. § 1926.453(b)(2)(iv). Universal’s
field manager and foreman were at the jobsite and in a position to observe the
violations. They had authority to correct the hazards or to direct Zahner’s
foreman to correct the hazards, but neither did so. It is not disputed that Zahner
created the hazards and only Zahner employees were exposed to the hazards.
On October 16, 1997, Universal was cited for a serious violation based on
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the October 6 incidents and a $1,500 penalty was imposed. 1
The citation was
justified by Universal’s ability to control the hazardous conditions that led to the
violations. On March 18, 1998, an administrative law judge upheld the citation,
concluding Universal was properly cited under the multi-employer doctrine
because it controlled the worksite and had authority to direct a subcontractor to
abate any hazardous conditions created by the subcontractor. Universal timely
filed for discretionary review by the Commission, but the Commission opted not
to review the case and the ALJ’s decision became final on April 27, 1988. On
appeal, Universal challenges the validity of the Commission’s “multi-employer”
theory of liability. We have jurisdiction under 29 U.S.C. § 660(a) because
Universal’s principal place of business is in Kansas City, Kansas.
Multi-Employer Doctrine
The multi-employer doctrine provides that an employer who controls or
creates a worksite safety hazard may be liable under the Occupational Safety and
Health Act even if the employees threatened by the hazard are solely employees
of another employer. The doctrine has its genesis in the construction industry
where numerous employers, often subcontractors, work in the same general area,
and where hazards created by one employer often pose dangers to employees of
1
A serious violation exists “if there is a substantial probability that death
or serious physical harm could result from” an existing condition. 29 U.S.C. §
666(k).
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other employers. The Secretary has imposed liability under the doctrine since the
1970’s and has steadfastly maintained the doctrine is supported by the language
and spirit of the Act. The Secretary’s interpretation has been accepted in one
form or another in at least five circuits, and rejected outright in only one. See
United States v. Pitt-Des Moines, Inc. , 168 F.3d 976 (7th Cir. 1999); R.P.
Carbone Constr. Co. v. Occupational Safety & Health Review Comm’n , 166 F.3d
815 (6th Cir. 1998); Beatty Equip. Leasing, Inc. v. Secretary of Labor , 577 F.2d
534 (9th Cir. 1978); Marshall v. Knutson Constr. Co. , 566 F.2d 596 (8th Cir.
1977); Brennan v. Occupational Safety & Health Review Comm’n , 513 F.2d 1032
(2d Cir. 1975); but see Southeast Contractors, Inc. v. Dunlop , 512 F.2d 675 (5th
Cir. 1975). We have not had occasion to expressly consider the validity of the
doctrine, although we have cited it approvingly in a similar context. See Havens
Steel Co. v. Occupational Safety & Health Review Comm’n , 738 F.2d 397, 400
(10th Cir. 1984). We now join the majority of circuits and adopt the multi-
employer doctrine.
The Secretary pins statutory authorization for the multi-employer doctrine
on 29 U.S.C. § 654(a)(2). Section 654(a) delineates the duties of employers:
(a) Each employer --
(1) shall furnish to each of his employees employment and a
place of employment which are free from recognized hazards that are
causing or are likely to cause death or serious physical harm to his
employees;
(2) shall comply with occupational safety and health standards
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promulgated under this chapter.
The Secretary construes § 654(a)(1) & (2) as imposing two distinct duties. First,
(a)(1) requires employers to protect their own employees from hazards in the
workplace. The employer’s duty under (a)(1) flows only to its employees, as
indicated by the language specifically limiting the employer’s obligation to
maintain a hazard-free workplace to “his employees.” Second, (a)(2) requires
employers to comply with the Act’s safety standards. Unlike (a)(1), it does not
limit its compliance directive to the employer’s own employees, but requires
employers to implement the Act’s safety standards for the benefit of all
employees in a given workplace, even employees of another employer. OSHA
issues citations based on the multi-employer doctrine under (a)(2). Universal
contends the language of § 654(a) may not reasonably be read as authorizing the
Secretary to impose liability outside the employer-employee relationship. 2
We review an agency’s interpretation of its enabling statute in accordance
with the decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc. , 467 U.S. 837 (1984). First, we determine if the statute is unambiguous on
2
Universal also contends the Secretary could not lawfully apply the
doctrine without first adopting it through rule making. This position clearly is
incorrect. The decision to proceed by rule or adjudication is generally within the
informed discretion of the agency. Nunez-Pena v. INS , 956 F.2d 223, 225 (10th
Cir. 1992). Moreover, the principle here is not new, but has existed and has been
applied for over twenty years.
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its face. Marshall v. Chater , 75 F.3d 1421, 1428 (10th Cir. 1996). If Congress
has directly spoken to the issue, and its intent is clear, we must give effect to its
intent. Id. If the statute does not address the specific issue at hand or is
ambiguous, we next determine if the agency’s interpretation is based on a
permissible construction of the statute. Id. If so, we will defer to the agency’s
interpretation. Id. An agency’s interpretation of a specific statutory provision is
entitled to deference and will be upheld if it is reasonable and consistently
applied and does not frustrate the policy sought to be implemented by Congress.
See New Mexico Dep’t of Human Servs. v. Department of Health & Human
Servs. Health Care Fin. Admin , 4 F.3d 882, 884-85 (10th Cir. 1993). In applying
these standards, we bear in mind that the Occupational Health and Safety Act is
remedial legislation designed to protect employees from workplace dangers, and
therefore must be liberally construed. See Whirlpool Corp. v. Marshall , 445 U.S.
1, 11, 13 (1980); Clarkson Constr. Co. v. Occupational Safety & Health Review
Comm’n , 531 F.2d 451, 458 (10th Cir. 1976).
While broad, the language of § 654(a)(2) is ambiguous and does not clearly
compel the conclusion that Congress did or did not intend to permit the Secretary
to impose liability for hazards that an employer controlled but did not create and
which did not threaten the employer’s employees. It may be, as the Secretary
asserts, that (a)(2) was intended to create a specific duty requiring an employer to
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comply with OSHA safety standards for the good of all employees -- even those
employed by others -- at a common worksite. If so, however, it is plausible that
Congress would have chosen more direct phrasing to implement such a scheme.
The interpretation urged by Universal fares no better under plain language
scrutiny. Subsection (2) on its face does not limit an employer’s duty to comply
with safety standards only to the employer’s employees. Nor is there any patently
compelling reason to assume merely because liability under (a)(1) is limited to
situations where an employer’s own employees are exposed to hazards, liability
under (a)(2) is likewise limited. Where language appears in one section of a
statute but not in another section, we assume the omission was intentional. See
Bates v. United States , 118 S. Ct. 285, 290 (1997).
The Seventh Circuit recognized the dilemma in attempting to resolve this
issue based solely on the plain language of the Act and its legislative history
when it acknowledged nearly twenty-five years ago that “Congress apparently
gave little thought to the unique relationship which arises when employees of a
number of different employers work in and around the same job site and are
subject to the hazards which may exist at that site.” Anning-Johnson Co. v.
United States Occupational Safety and Health Review Comm’n , 516 F.2d 1081,
1087 n.14 (7th Cir. 1975). Given the ambiguities of the statute, we are not
prepared to conclude the plain language of the statute alone or its nonexistent
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legislative history on this issue permits us to accept or reject the multi-employer
doctrine.
Because § 654(a)(2) is ambiguous regarding this issue, we consider if the
agency’s interpretation is based on a permissible construction of the statute and
does not frustrate the policy underlying the Act. In this respect, the ambiguity of
(a)(2) and, in particular, the omission from (a)(2) of any language expressly
limiting an employer’s liability only to its employees, militate in favor of the
Secretary’s interpretation. “The use of the words ‘his employees’ in describing
the duties of Section 654(a)(1) and the conspicuous absence of any limiting
language in Section 654(a)(2), certainly indicate that a broader class was meant to
be protected by the latter.” Pitt-Des Moines , 168 F.3d at 983.
In addition, the Secretary’s interpretation furthers rather than frustrates the
policy underlying the Act. The Act was designed “to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions.” 29 U.S.C. § 651. To achieve this end, Congress focused primarily
on “making places of employment, rather than specific employees, safe from work
related hazards.” Pitt-Des Moines , 168 F.3d at 983; see Brennan , 513 F.2d at
1038 (“It was the intention of Congress to encourage reduction of safety hazards
to employees at their places of employment.”). It is the combination of the
broader language of § 654(a)(2) and the remedial goal of ensuring safer
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workplaces that has “led courts to conclude that the multi-employer doctrine is
fully consistent with the Act.” Pitt-Des Moines , 168 F.3d at 983; see Brennan ,
513 F.2d at 1038. We agree that the multi-employer doctrine is consistent with
the language of § 654(a)(2) and the purpose of the Act.
The multi-employer doctrine is particularly applicable to multi-employer
construction worksites, and in fact has been limited in application to that context.
See American Petroleum Inst. v. OSHA , 581 F.2d 493, 508 (5th Cir. 1978). The
nature of construction requires that subcontractors work in close proximity with
one another and with the general contractor at the same worksite. “In this
situation, a hazard created and controlled by one employer can affect the safety of
employees of other employers on the site.” Bratton Corp. v. Occupational Safety
& Health Review Comm’n , 590 F.2d 273, 276 n.5 (8th Cir. 1979). Rules of craft
jurisdiction, however, may limit one subcontractor’s ability to abate hazards
posed to its own employees that were created by another subcontractor or a
general contractor. See , e.g. , IBP, Inc. v. Herman , 144 F.3d 861, 864 (D.C. Cir.
1998); Zemon Concrete Corp. v. Occupational Safety & Health Review Comm’n ,
683 F.2d 176, 181 (7th Cir. 1982). To alleviate these hazards and ensure
compliance with safety standards, the general rule regarding multi-employer
construction worksites is that employers will be liable under § 654(a)(2) for
hazards the employer either created or controlled, regardless of whose employees
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are threatened by the hazard. Thus, a subcontractor that creates a hazard may be
cited under (a)(2) even if its own employees are not threatened. See id. at 180;
Bratton , 590 F.2d at 276; Beatty , 577 F.2d at 537; Brennan , 513 F.2d at 1038; see
also Havens , 738 F.2d at 400. Similarly, a general contractor, which often will
not have created the hazard but will be in control of the worksite and have
authority to abate the hazard, may be cited under (a)(2) if it unreasonably fails to
correct a hazard it created or unreasonably fails to direct a subcontractor to
correct a hazard created by the subcontractor. See Carbone , 166 F.3d at 818;
Marshall , 566 F.2d at 599.
We disagree with Universal that the multi-employer doctrine unfairly
burdens general contractors. A subcontractor whose employees are threatened by
a hazard created and controlled by another subcontractor has only two options:
request the offending subcontractor to abate the hazard or request the general
contractor to correct or direct correction of the condition. 3
Bratton , 590 F.2d at
277. As a practical matter, the general contractor may be the only on-site person
with authority to compel compliance with OSHA safety standards. See Anning-
3
The complaining subcontractor, of course, remains responsible for taking
reasonable steps to protect its employees from hazards it neither controlled nor
created. These steps may include directing its employees to avoid the area if
practical or ensuring employee safety by alternative measures. See generally
Dun-Par Engineered Form Co. v. Marshall , 676 F.2d 1333, 1335-36 (10th Cir.
1982).
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Johnson , 516 F.2d at 1088 (“On a multi-employer construction site, it is the
general contractor who contractually controls the worksite.”). “General
contractors normally have the responsibility and the means to assure that other
contractors fulfill their obligations with respect to employee safety where those
obligations affect the construction worksite.” Marshall , 566 F.2d at 599.
“Accordingly, [it is reasonable and consistent with the purpose of the Act to] hold
a general contractor responsible under § 654(a)(2) for safety standard violations
which it could reasonably have been expected to prevent or abate by reason of its
supervisory capacity.” Id. (citation omitted); see Carbone , 166 F.3d at 818. The
general contractor’s duty in this regard is not limited to protecting its own
employees from hazards, but extends to protection of all worksite employees. Id. ;
Marshall , 566 F.2d at 599.
Of the courts to consider the multi-employer doctrine, only the Fifth Circuit
has rejected it. See Melerine v. Avondale Shipyards, Inc. , 659 F.2d 706 (5th Cir.
1981); Horn v. C.L. Osborn Contracting Co. , 591 F.2d 318 (5th Cir. 1979);
Southeast Contractors, Inc. v. Dunlop , 512 F.2d 675 (5th Cir. 1975). None of
these cases persuasively explain the basis for rejection of the doctrine. In fact,
Dunlop , on which subsequent cases were based, is a one-paragraph opinion in
which the court merely agreed with “the well-reasoned dissent of Chairman
Moran . . . that a contractor is not responsible for the acts of his subcontractors or
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their employees.” 512 F.2d at 675. In Clarkson , we rejected the core of Dunlop
and also implicitly endorsed the multi-employer doctrine. In Clarkson , a
subcontractor’s employee was driving a dump truck in reverse along the shoulder
of a highway (considered to be the worksite) and the truck struck and killed a
worker. In violation of safety standards, the truck was not equipped with reverse
signal alarms and there was no lookout posted. The general contractor, rather
than the subcontractor, was cited for OSHA violations. We rejected the
contention that the general contractor could not be cited because it was not
“using” the truck as required by the applicable standard.
We are unable to overlook the fact that the truck driver who
ran over and killed the employee was serving the objects and
purposes of Clarkson.
....
. . . In order to accomplish [the broad remedial] purpose [of
the Act], it is necessary to look to an employer who controls the
working environment. . . .
So, then, even though the employee in question was an
employee of Advance, he was nevertheless under the direction and,
more important, control of Clarkson, the general contractor.
Id. at 457-58. Clarkson therefore constitutes a rejection of Dunlop and
subsequent Fifth Circuit cases rejecting the doctrine, as well as an endorsement of
the rationale -- control -- on which a general contractor’s liability is based under
the multi-employer doctrine.
As Universal notes, the D.C. Circuit has neither accepted nor rejected the
doctrine, and has specifically avoided ruling on the issue. See IBP , 144 F.3d at
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865-66; Anthony Crane Rental, Inc. v. Reich , 70 F.3d 1298, 1306 (D.C. Cir.
1995). The court’s reluctance to adopt the doctrine is premised upon perceived
“tension between the Secretary’s multi-employer theory and the language of the
statute and regulations.” IBP , 144 F.3d at 865. While we concede the multi-
employer doctrine and the language of the Act are not perfectly harmonious, the
broad language and remedial purpose of the Act in combination persuade us that
the Secretary’s interpretation of § 654(a)(2) is consistent with and does not
frustrate the policy of the Act.
Application of Doctrine to Universal
Universal argues if the multi-employer doctrine is a valid exercise of the
Secretary’s authority under the statute, it is unreasonably applied in situations
where, as here, the general contractor has mere contractual control over the
worksite. In support of this argument, Universal again directs our attention to
IBP , where the court ruled the multi-employer doctrine, even if valid, was not
applicable because the general contractor’s only control over the subcontractor
was a contractual provision permitting the general contractor to cancel the
contract or revoke the identification card of a subcontractor’s employee if safety
standards were not followed.
We review the Commission’s findings of fact under a substantial evidence
standard. 29 U.S.C. § 660(a); Interstate Erectors, Inc. v. Occupational Safety &
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Health Review Comm’n , 74 F.3d 223, 226 (10th Cir. 1996). This standard is
satisfied if, after conducting a plenary review of the record, “a reasonable mind”
would consider the evidence adequate to support the conclusion reached. Aylett
v. Secretary of Housing & Urban Dev. , 54 F.3d 1560, 1561 (10th Cir. 1995). We
review the Commission’s legal conclusions to determine if they are arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.
Interstate , 74 F.3d at 226. Our review under this standard is a narrow one that
encompasses a wide level of deference to the agency. Maier v. EPA , 114 F.3d
1032, 1039 (10th Cir. 1997).
We need not decide if we would find the limited control afforded the
general contractor in IBP sufficient to permit liability under the multi-employer
doctrine. Unlike IBP , Universal had plenary control and authority over the
worksite and could itself either correct a hazard created by any subcontractor,
even without that subcontractor’s consent, or direct any subcontractor to abate a
hazard and abide by safety standards. See Stipulation ¶¶ 24-27, 31-33.
As noted, a general contractor is responsible under § 654(a)(2) for safety
standard violations it could reasonably have been expected to prevent or abate by
reason of its supervisory capacity, regardless of whether it created the hazard or
whether its employees were exposed to the hazard. Universal does not assert it
could not reasonably have prevented or abated the violations here. Instead, it
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stipulated Universal’s field manager was present at the worksite on October 6 and
in a position to observe the violations, but did not correct the violations or direct
Zahner to correct the violations, despite the field manager’s authority to do so.
See Stipulation ¶¶ 5, 14-17, 31-33. As such, the Commission’s conclusion that
Universal was liable under § 654(a)(2) for the October 6 violations is supported
by substantial evidence and is not arbitrary, capricious, an abuse of discretion, or
otherwise contrary to law. See Interstate , 74 F.3d at 226.
AFFIRMED.
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No. 98-9519, Universal Construction Company., Inc. v. Occupational Safety and
Health Review Commission.
KELLY, Circuit Judge, concurring.
I respectfully concur in the court’s opinion for two reasons. First, our prior
decision in Clarkson Constr. Co. v. Occupational Safety & Health Review
Comm’n , 531 F.2d 451, 456-58 (10th Cir. 1976), is tantamount to the adoption of
a multi-employer doctrine in this circuit, particularly when viewed against the
backdrop of Judge Seth’s dissent, see id. at 459 (Seth, J., dissenting), and we are
bound by circuit precedent. Second, the parties stipulated that (1) Universal’s
field manager and foreman were present at the worksite on the day in question,
(2) they had the authority to direct abatement, and (3) the field manager “was in
position to observe the actions of Zahner’s employees and contractually had the
authority to direct Zahner’s foreman . . . to correct the hazards.” 2 Agency R.,
Joint Stipulation, ¶¶ 5, 6, 14, 15, 31-33. Given these stipulations, it is not
necessary to decide the outer limits of the doctrine.
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