Solis v. Summit Contractors, Inc. ( 2009 )

BEAM, Circuit Judge,

dissenting.

I concur in the panel majority’s (the court’s) analysis that 29 U.S.C. § 654(a)(2) incorporates the requirements of 29 C.F.R. § 1910.12(a) within the governance imposed by the Occupational Safety and Health Act of 1970 (OSH Act).⁸ I also concur in the court’s fundamental gram-matic interpretation of § 1910.12(a).⁹ I disagree, however, with the court’s conclusion that the regulation, as the court construes it, is sufficiently ambiguous to require this court to defer to the Secretary of Labor’s decision to overrule the carefully reasoned decision of the Occupational Safety and Health Review Commission (Commission) vacating Summit’s Occupational Safety and Health Administration (OSHA) “controlling employer” citation. Accordingly, I dissent.

With regard to the last sentence of § 1910.12(a), which reads “[e]ach employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph,” the court says:

The subject of this sentence is “each employer,” the verb is “shall protect,” and the objects are “employment” and “places of employment.” The rest of the sentence contains prepositional phrases; a preposition serves to “link[ ] an object (a noun or noun equivalent) to another word in the sentence to show the relationship between them.” Chicago Manual of Style, 187 § 5.162 (15th ed.2003). In this case, the preposition “of’ serves to link the objects, “employment” and “places of employment,” to “each of his employees.” Hence, grammatically reconstructed, the language of the regulation requires: (1) that an employer shall protect the employment of each of his employees (“part (1)”) and (2) that an employer shall protect the places of employment of each of his employees (“part (2)”).

Ante at 824 (alteration in original). I fully agree with this analysis as far as it goes. The court neglects, however, to note that the prepositional phrase “of each of his employees” is further limited by the words “engaged in construction work.”

The court then correctly states, the prepositional phrase “of each of his employees” serves as an adjective that narrows the meaning of “employment” and “places of employment.” [Chicago Manual of Style,] 188 § 5.166 (“A prepositional phrase can be used as a noun, ... an adverb, ... or an adjective ....”); id. at 165 § 5.66 (discussing limiting adjectives). Because the term “of each of his employees” limits the term “employment,” part (1) provides that an employer shall protect only the employment of his employees. Stated differently, part (1) provides that an employer shall protect only his employees. However, this is not the end of the analysis. In part (2), the term “of each of his employees” limits the term “places of employment” such that the employer shall protect the places of employment where the employer actually has employees. See Reich v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4-5 (1st Cir.1993) (holding that the plain language of § 1910.12(a) establishes a duty of employers to protect only those construction sites where they have employees).

Ante at 824-25 (footnote omitted).

The court then advances a puzzling and unsupported extension of regulatory intent gleaned from these words. Without further grammatic analysis or support from other language-based inferences, the court posits that

[ujnlike part (1), part (2) of the regulation does not limit the employer’s duty to protect only the employer’s own employees. Therefore, the plain language of part (2) does not preclude an employer’s duty to protect the place of employment, including others who work at the place of employment, so long as the employer also has employees at that place of employment.

Ante at 824 (emphasis added) (citation omitted). This statement is epiphytic — it draws no nourishment from the words of § 1910.12(a). The issue here is, of course, not what duty an employer may decide to impose upon himself but rather what an employer is required to do to avoid an OSHA sanction. Part (2) unambiguously requires Summit to protect the places of employment of Summit’s employees engaged in construction work for Summit. Nothing more, nothing less.¹⁰ Indeed, I find no words that support the idea that this sort of bureaucratically created ambiguity is the stuff of “deference” that should be accorded the Secretary in disputes she has with the Commission.

The court attempts to buttress the analysis with equally unsupported interpretive exercises. The court says, for instance, “[fjirst, Summit’s interpretation [that it can be cited only for violations by its own employees] is contrary to the grammatical construction of the sentence because it requires the term ‘each of his employees’ to be the object of the sentence, rather than a prepositional phrase that modifies the actual objects of the sentence.” Ante at 825. This is incorrect; Summit’s interpretation clearly and correctly retains “of each of his employees” as an adjectival limitation on one or the other of the sentence’s objects^ — -“employment” or “places of employment.” The court then states, “[s]econd, Summit’s interpretation would make the term ‘places of employment’ redundant of the term ‘employment’ and, therefore, superfluous.” Ante at 824-25. This analysis is likewise incorrect. As properly construed there is no redundancy at all between the terms “employment” and “places of employment.” “Employment” refers to an individual’s personal involvement with his or her daily work. “Places of employment” refers to geographic locations at and around the construction site. But, the court argues, “[u]nder Summit’s interpretation, part (2) provides nothing different from or in addition to part (1); instead, it makes the term ‘places of employment’ a subset of the term ‘employment.’ ” Ante at 825. The court also states,

an employee could be exposed to a dangerous condition during the course of employment but away from the work site. However, the opposite is not true. Summit cannot provide and we cannot envision a situation where the protection of a “place of employment” will not be directly related to or encompassed by the protection of “employment.”

Ante at 825. This is also incorrect, Summit can provide easily envisioned situations that refute the court’s contention.

First, the words “engaged in construction work” will make it extremely unlikely that “employment away from the work site” will be in any way governed by § 1910.12(a). And even if it is, protection of such work would not displace “places of employment” regulations.

The OSH Act provides a complicated, interrelated and complex set of rules that apply to sundry work situations. Individual mastery of the OSH Act’s myriad upon myriad of details is very likely impossible. The OSH Act imposes safety regulations involving the individual worker that require, for instance, protective clothing, respirators and safety equipment of every kind. These regulations protect a particular worker’s physical being and may or may not do so in conjunction with particular places at the job site — that is, operations at discrete geographic locations on the premises.

This particular dispute is illustrative of my point. The court notes that a subcontractor’s employees were working ten feet or more above ground on scaffolding without the guardrails required by OSHA rules. The guardrail requirement is a rule directed toward the place of employment— i.e., working upon scaffolds. If the employees were spray-painting interior walls or blowing loose insulation into building spaces, OSHA rules almost certainly would require face masks, and probably, respiration protection equipment, although I concede that I have not specifically researched the applicable rules. This type of personal, individual equipment would be “protection of employment.”

Another hypothetical situation comes to mind. Assume a coal-fired furnace is being installed during construction of a new power plant, and the furnace’s burners and interior portions need to be fired up, tested, inspected and adjusted by specially trained personnel. Other employees may also be working on the furnace construction but not inside the burner area. Further assume that the OSH Act requires that these specialized workers must wear protective gear while doing their work but other employees nearby need not do so. The OSH Act regulations usually require related safety steps with regard to the furnace itself — i.e., natural gas shut-off, entry lock-out and automatic fire suppression — to prevent untoward events which may endanger all of the employer’s workers near the “place of employment,” — i.e., at the location of the new furnace. This combination of regulations would, of course, protect the specially trained personnel and the other construction employees in the vicinity of the furnace construction. In such a situation, the regulation clearly, unambiguously, separately and without redundancy, governs an employer’s employment of each specialized employee (the person regulations) and the place of employment (the place regulations) for the benefit of both groups of the employer’s employees. Thus, at the bottom line, the Secretary is simply wrong in her ambiguity argument and the Commission majority is correct that the regulation does not support “controlling” person citations such as those issued in this case.

Finally, the court discounts Summit’s argument that the Secretary’s interpretation is “counterproductive to the goals of the OSH Act.” Ante at 829. At the same time, the court concedes that “[i]t is uncertain what potential benefits are gained in citing both a subcontractor and a general contractor for [as in this case] a single OSHA violation,” ante at 829, especially when, also as here, Summit had informed the subcontractor of violations on prior occasions. The court further concedes that OSHA is an intricate and function-specific regulatory scheme such that each employer on a work site may be uniquely situated to know the very specific regulatory requirements affecting a particular trade. What the court fails to note, and which is equally true, is that it is impossible under the OSH Act for even the most sophisticated general contractor to recognize violations by specialized subcontractors, many of whom are larger employers than the general or prime contractor. And, in the case of the industry represented by amicus National Association of Home Builders (NAHB), a substantial percentage of residences are constructed in the United States by small businesses which operate almost completely through employment of subcontractors.¹¹ In other words, the supposed general homebuilding contractor often has no “employees” at all, (under any generally recognized definition of the term), “engaged in construction work” at “places of employment” contemplated by the regulation. To impose the Secretary’s rule on these employers is, in my view, absurd as a matter of rational policy.

The court dismisses these policy quirks as concerns that “should be addressed to Congress or to the Secretary and not to the courts.” Ante at 829. Such an argument misses the main point of this appeal. The regulation authorized by Congress, § 1910.12(a), through enactment by OSHA, when correctly read, does not authorize, indeed it rejects, the Secretary’s policy. And if there is any ambiguity in the rule, which ambiguity I reject, these policy problems, especially those that show the Secretary’s approach creates problems that are impossible to solve, should serve as an interpretative guide to a logical reading of § 1910.12(a). It is not Congress’s policy pronouncements that need to be revisited, it is the Secretary’s, and now this court’s misinterpretation of them.

I dissent.

8 . In clear dicta, the Occupational Safety and Health Review Commission refers to a general contractor's duties under § 654(a)(2) in Secretary of Labor v. Anning-Johnson Co., 4 BNA OSHC 1193, 1975-1976 CCH OSHD ¶ 20,690 (O.S.H.R.C. May 12, 1976), never mentioning regulation § 1910.12(a). This dicta from AnningJohnson was discussed in Marshall v. Knutson Construction Co., 566 F.2d 596, 599 (8th Cir.1977) which also does not address the regulatory issue before the court in this case. Thus, Knutson is not binding precedent in this circuit. See United States v. Norris, 486 F.3d 1045, 1054 (8th Cir.2007), cert. denied, - U.S. -, 128 S.Ct. 881, 169 L.Ed.2d 739 (2008).

9 . The regulation in its entirety provides:

The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

29 C.F.R. § 1910.12(a).

10 . Although it is probably of no moment here, the court does not specify whether those employer’s employees at the place of employment the court talks about must be doing "construction work” or must be present at the time an alleged violation by another employer's employees occurs, or whether these exotic occurrences need to happen during the construction work, etc. Neither does the court attempt to define "construction work” in the analysis. For instance, were Summit’s superintendent and assistant superintendents engaged in “construction work” or merely in coordination and supervision of "construction work?”

11 . U.S. Census data from 2002 indicate that about 68.1 percent of residential builder establishments had four or fewer employees on payroll; and about 20.0 percent had five to nine employees on payroll. (Resp. by Amicus Curiae to Information Req. at 4, ¶ 8, August 11, 2008). Currently, NAHB builder-members have a median of four paid employees. (Supplemental Resp. by Amicus Curiae to Information Req. at 3, ¶ 9, December 10, 2008).