## Facts

- Summit Contractors, Inc. served as general contractor for construction of a college dormitory and subcontracted all trade work, maintaining four on-site supervisory employees.
- A subcontractor, All Phase Construction, Inc., performed exterior masonry work and used scaffolds.
- Summit’s superintendent observed All Phase employees working on scaffolds without required fall protection, violating 29 C.F.R. § 1926.451(g)(1)(vii), and repeatedly warned All Phase to correct the condition.
- The unsafe scaffold practices continued, but none of Summit’s employees were exposed to the fall hazard.
- OSHA cited Summit (rather than All Phase) under OSHA’s multi-employer “controlling employer” policy, which permits citation of a general contractor with sufficient supervisory authority to prevent or abate subcontractor-created hazards even when only subcontractor employees are exposed.
- Summit contested the citation, arguing 29 C.F.R. § 1910.12(a) limits OSHA enforcement to situations where the cited employer’s own employees are exposed.

## Issues

1. Whether 29 C.F.R. § 1910.12(a) bars OSHA from citing a controlling employer at a multi-employer construction site when the cited employer’s own employees were not exposed to the hazard.
2. In a conflict between the Secretary of Labor and the Occupational Safety and Health Review Commission (OSHRC) over the meaning of an OSHA regulation, whose interpretation governs.

## Decision

- The Eighth Circuit granted the Secretary’s petition for review, vacated OSHRC’s order, and remanded.
- The court held that § 1910.12(a) does not preclude citations to an employer when its own employees are not exposed to hazards related to the violation.
- The court rejected OSHRC’s interpretation that § 1910.12(a) limits construction-standard citations to hazards exposing the cited employer’s employees.
- The court concluded OSHRC erred in using its interpretation of § 1910.12(a) to invalidate the Secretary’s controlling-employer citation policy; questions about Summit’s actual degree of control and related facts were left for proceedings on remand.
- Judge Beam dissented, favoring OSHRC’s employee-exposure reading of § 1910.12(a).

## Legal Principles

- 29 C.F.R. § 1910.12(a) imposes a duty on employers to comply with construction standards to protect their employees, but it does not itself restrict OSHA’s authority to cite only employers whose employees were exposed.
- Under OSHA’s multi-employer worksite doctrine, a general contractor may be cited as a “controlling employer” when it has sufficient supervisory authority to prevent or abate subcontractor-created hazards, even if the general contractor did not create the hazard and its employees were not exposed.
- When the Secretary of Labor and OSHRC offer conflicting interpretations of an OSHA regulation, courts defer to the Secretary’s reasonable interpretation because the Secretary is the primary policymaking and enforcement authority under the OSH Act.

## Conclusion

The Eighth Circuit held that OSHA’s construction regulation did not bar controlling-employer citations and set aside OSHRC’s decision vacating the citation, allowing the Secretary to pursue enforcement against a general contractor for subcontractor fall-protection violations despite no exposure to the contractor’s own employees.


Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009)