have inspected the equipment for GFCI because of the gravity of the potential hazard involved
and because of the ease of such an inspection, which would have taken no more than a few

minutes.
CONCLUSION

For the reasons discussed above, the Commission should affirm the serious violation and

penalty of $1,225.

August 2006 Respectfully submitted,
Washington, D.C.

HOWARD M. RADZELY
Solicitor of Labor

JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health

CHARLES F. JAMES
Counsel for Appellate Litigation

--—

GARY K. BTEARMAN
Senior Appellate Attorney
for the Secretary of Labor

United States Department of Labor
200 Constitution Ave., N.W.
Room S-4004

Washington, D.C. 20210

(202) 693-5445

° Although Summit notes that OSHA assessed the subcontractors a penalty of $525, SB 6 n.2, it
has not contested the amount of the assessed penalty against it.

15


Ne

specialist's expertise so long as the reliance is reasonable and the employer has no reason to
foresee that the work will be performed unsafely." This Summit did not do. It did not ask
whether Cleveland Brothers rented only generators and spiderboxes equipped with GFCI or
inquire into Cleveland Brothers’ knowledge of electrical systems. Moreover, Summit's
superintendent (Corthals) apparently had rented equipment from Cleveland Brothers only once
before. Dep. 25, 35-36 (job was Corthals' first for Summit, and Corthals contacted Cleveland
Brothers because he had rented a portable generator from them for this job and had their
telephone number). Thus, he had no or little past experience with the company. Without first
determining the extent of Cleveland Brothers’ safety efforts or the nature of the equipment it
offered to rent, Summit's alleged reliance on Cleveland Brothers was unjustified and
unreasonable.

Summit also engages in speculation in asserting "the leasing agent clearly knew GFCI
was required" when Summit rented the equipment. SB 21. Although Corthals testified that "the
man" at Cleveland was "dumbfounded" upon learning the equipment was not GFCI protected,
Dep. 17, there is no evidence that this unidentified "man" was the "leasing agent" Corthals spoke
with when he ordered the equipment. In fact the record suggests Corthals spoke with two
different people at Cleveland, one when he rented the equipment and another when he replaced
it. Compare Tr. 155 (testimony of Larry Walter, employee at Cleveland Brothers, indicating that
his rental coordinator was a woman who would specify equipment by identification number); Tr.
159 (testimony of Walter indicating that his "big boss," a man, told him to go replace the
equipment); Dep. 8 (Corthals' testimony failing to identify the person at Cleveland Brothers from
whom he ordered equipment, and referring to person as "they"). Moreover, Cleveland's
delivery of the equipment that Summit ordered can hardly be called a "mistake." SB 20. It was
Summit's order and Corthals' assumption about the equipment that were mistaken, not the
delivery, which merely carried out Summit's instruction. The fact that only 6 of Cleveland's 18
spider boxes came equipped with GFCI protection underscores not only the unreasonableness of

Corthal's assumption and Summit's reliance on Cleveland's supposed expertise but also


STATUTES AND REGULATIONS:
2b), 29 U.S.C. § 651) ccesssiee
3(5), 29 U.S.C. § 652(5) .

5(a)(2), 29 U.S.C. § 652(a)(2)

29 CER. § 1926.404(b)(1)



CERTIFICATE OF SERVICE

I certify that on August 31, 2006, I served a copy of the foregoing Opening Brief for the
Secretary of Labor upon counsel for Respondent by facsimile transmission to Rader & Campbell,

and by regular mail, postage prepaid, first class mail, on:

Robert E. Rader, Jr.

Rader & Campbell
Stemmons Place, Suite 1125
2777 N. Stemmons Freeway

Dallas, Texas 75207

Gary a icmen
Senior A) ficarme Attomey
for the Secretary of Labor



Summit had acted with reasonable diligence, Summit should be charged with constructive
knowledge of the violative conditions.

Corthals likewise failed to act with reasonable diligence because he never requested that
the equipment have GFCI, and never inspected the equipment for obvious hazards at any time
during the 11 days when the equipment was at the worksite. Although Summit argues inspecting
for GFCI protection was difficult and its absence not "readily apparent," SB 23-24, the evidence
demonstrates otherwise. The compliance officer detected the problem in a minute, Tr. 38, and
Corthals admitted it would have taken only a few minutes. Dep. 40. Indeed, the photograph of
the spiderbox at the site, DX 12, illustrates how easy it would be to inspect ~ either bend down or
pick the spider box up and lift up a flap. Dep. 9-10. Certainly, the Commission has required far
more than this of a general contractor under these circumstances. In Blount, the Commission
found the general contractor liable under the multi-employer worksite doctrine and section
1926.404(b)(1) for the subcontractor's failure to equip a panel distribution box with GFCI
protection where some receptacle outlets had the protection while others did not and testing was
required to make this determination. 15 BNA OSHC at 1989-199. If it was reasonable to
require the general contractor to conduct that inquiry or testing there, surely it would be
reasonable to require Summit to simply bend over and lift up a flap. Cf Centex-Rooney
Construction Co., 16 BNA OSHC at 2128-2129 (general contractor that daily checked different
circuit breakers and required subcontractors to check GFCI protection on a weekly basis not
liable under section 1926.404(b)(1)).’

Rather than touting it efforts to inspect or protect, Summit attempts to avoid liability
based on its complete failure to inspect. SB 24 (duty to inspect commensurate with degree of

supervision); Dep. 14 (Corthals conducted no safety inspections at the job). Commission case

7 By contrast the violations in David Weekly Homes, 19 BNA OSHC 1116, 1119 (No. 96-0898
2000) (relied on by Summit) were of "brief or indeterminate duration" and not readily detectable
even if walking directly by. Here, Summit was responsible for bringing the equipment to the
jobsite and all it needed to do was lift up a flap to detect the violation.

13


established principle that deference is afforded to an agency’s interpretation of its own enabling
statute, Universal, 182 F.3d at 729. Thus, Darden's explicit rejection of the "correction of
mischief" test for construing the term "employee" by no means "set aside" (SB 13) the legal
pillars supporting the doctrine. It is well-grounded in the methodology of statutory
construction.!

Summit's contention that the facts of this case "are exactly like" those in AAA Delivery
Services, Inc.,21 BNA OSHC 1219 (No. 02-0923, 2005), SB 18 n.5, is likewise incorrect. In
AAA, the only workers exposed to the hazard (newspaper vendors) were found to be independent
contractors, requiring dismissal of the citation. Here, by contrast, the workers exposed to the
hazard were employees, albeit of a subcontractor. Summit's reliance on Don Davis, d/b/a Davis
Ditching and Davis Ditching, Inc., 2001 WL 856241, 19 BNA OSHC 1477 (No. 96-1378, 2001)
and Timothy Victory, 1997 WL 603003, 18 BNA OSHC 1023 (No. 93-3359, 1997) is similarly
misplaced. In those cases, the citations were dismissed because the workers exposed to the
hazard were not employees and the cited employer had no employees. In Allstate Painting and
Contracting Co., Inc.,21 BNA OSHC 1033 (Nos. 97-1631 & 97-1727, 2005), the Commission
determined that the exposed workers were not the employees of the cited company. No issue

regarding the multi-employer worksite doctrine was raised inasmuch as the cited company

' Nor did Darden suggest that a statute's purpose may never be considered in statutory
construction. See, e.g., Dolan v. USPS, 126 S.Ct. 1252, 1257 (2006) ("The definition of words
in isolation, however, is not necessarily controlling in statutory construction. A word ina
statute may or may not extend to the outer limits of its definitional possibilities. Interpretation
of a word or phrase depends upon reading the whole statutory text, considering the purpose and
context of the statute, and consulting any precedents or authorities that inform the analysis.");
Yates v. Hendon, 124 §.Ct 1330, 1335, 1341 (2004) (finding that "Congress’ aim" supported
Court's reading of statutory text). Because the multi-employer worksite doctrine does not
depend on the definition of "employee" or any other term having a different, settled common-law
meaning other than the one they adopted, it was altogether appropriate for this Commission and
the courts to have relied on the OSH Act's purpose in support for the doctrine.


purpose of the Act," that Darden "set aside . . . [this] legal rationale," and consequently that only
"the actual employer of the affected employee [as defined by Darden] may be cited." Summit
Opening Br. ("SB") 12-14. Summit further (and redundantly) argues that because employers are
responsible for their own employees only, it was not obligated under the cited standard, 29
C.F.R. § 1926.404 (which uses the terms employee and employer without qualification) to
protect subcontractor employees. On the merits, Summit argues that Cleveland Brothers, not
itself, created the hazard because Cleveland delivered equipment without GFCI protection
despite knowing GFCI protection was necessary. Finally, Summit argues it did not have
constructive knowledge of the hazard because the lack of GFCI protection was neither readily
apparent nor discoverable with reasonable effort.

Summit's arguments should be rejected. Summit's attempt to join Darden to the multi-
employer worksite doctrine is baseless because the questions “who is an employee" (Darden)
and "is an employer responsible for employees of other employers" (multi-employer worksite
doctrine) are analytically distinct. Summit misreads the case law in trying to connect the two
issues. It oversimplifies the reasons supporting the multi-employer doctrine while overreading
the meaning and holding of Darden. In addition, the cited section, 29 C.F.R. § 1926.404, by its
unqualified use of the terms "employer" and "employee" does not limit application of the multi-
employer worksite doctrine. On the merits, Summit's attempt to evade responsibility on the
grounds that it did not create the hazard or did not know about it must be rejected. Although
Summit did not physically bring the equipment onto the worksite, it ordered the equipment
without specifying GFCI protection; it did not inspect the equipment when delivered, although it
knew how to inspect for GFCI protection; and it had the equipment replaced when the violation
was found. Thus, it created and controlled the hazard, and with the exercise of due diligence

could have discovered, prevented, and abated the hazard.


UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
United States Department of Labor,
Complainant, : OSHRC Docket
3 No. 05-0839
v.
SUMMIT CONTRACTORS, INC.
Respondent.

REPLY BRIEF FOR THE SECRETARY OF LABOR
INTRODUCTION

In her opening brief, the Secretary argued that the Supreme Court's decision in
Nationwide Mutual Insurance v. Darden, which adopted the common-law test for distinguishing
an employee from an independent contractor, does not impact the multi-employer worksite
doctrine because the doctrine is not concerned with whether the exposed person is an employee
of the cited employer. Rather, under the doctrine, an employer may be liable for exposures not
only to its own employees but also to employees of other employers. The Secretary further
argued on the merits that Summit is liable under the multi-employer worksite doctrine both as a
creating and as a controlling employer. Summit created the hazard because it provided the
generator and spider box for use by a subcontractor without ensuring that the equipment had
ground-fault circuit interrupter (GCFI) protection. Summit also controlled the hazard because, as
the Judge found, it had general supervisory authority and control of the worksite and failed to
exercise reasonable care to prevent or detect and abate the violation to which subcontractor
employees were exposed.

In its opening brief, Summit contends that the multi-employer worksite doctrine is 'based

solely on an expansive definition of employer and employee on the theory that advances the


law, however, again demands more of the general contractor. See, e.g., Pride Oil, 15 BNA
OSHC at 1814 (reasonable diligence also involves an employer's obligation to inspect the work
area). Simply put, that Summit did not take seriously its duty to inspect does not mean it had no
such duty.

The simple truth is that Corthals did not inspect the spider box because he thought GFCI
protection was not required for the equipment, infra, n. 8, or he assumed without adequate basis
that the spider box would come equipped with GFCI protection, not because inspection was
difficult or beyond a general contractor's supervisory authority.* But neither of Corthal's actual
excuses is legally sufficient. Certainly, ignorance of the standard's requirements is indefensible
here, and his alleged incorrect assumption was objectively and subjectively unreasonable.
Objectively, the evidence showed that this equipment often comes without GFCI protection.
Larry Walter, the Cleveland Brothers employee who delivered the equipment, testified that
approximately only 1 in 3 of its spiderboxes comes equipped with GFCI protection. Tr. 154.
Moreover, the National Electric Code 2005 permits using a "pigtail" to implement GFCI in a
temporary wiring system, suggesting the need to supplement the system with such devices. R-1
at 892-93; Dep. 49-51. Subjectively, Corthal's assumption was premised on faulty reasoning and
limited information. Although he stated he had rented this equipment about twenty times, he
could not state how many times he had actually checked or verified that the equipment came
with GFCI protection. Dep. 41-42. Thus, there may have been any number of times in which he
rented non-compliant equipment. In any event, even if an assumption that the equipment usually
comes with GFCI protected were well-founded, a reasonably diligent superintendent would still
§ Corthals' explanation for not ordering or inspecting for GFCI protection is not credible. The
compliance officer testified that when he identified the absence of GFCI during the inspection,
Corthals stated that he was not aware that the equipment was required to have GFCI. Tr. 37. In
addition, there are significant inconsistencies between Corthals' testimony and his own
Declaration. For example, in his Declaration, Corthals states: "It is my understanding and belief
that all such generators and spider boxes are required by the electrical code to have GFCIs."
GX-10 at § 4 (emphasis added).) However, when asked whether he had even a general

familiarity with the National Electric Code, Mr. Corthals testified, "No, sir. I’m not an
electrician." Dep. 50.

14


undertaking." Access Equipment Systems, Inc., 18 O.S.H. Cas. (BNA) 1718, 1722-23 (1999)
(quoting Brennan, 513 F.2d at 1038 and listing Commission and other courts of appeals
precedent) (emphasis added).

Summit asserts that the multi-employer worksite doctrine depends on expansively
defining "employer" or "employee." SB 12. But the determination whether a worker is an
"employee" of a cited employer provides little, if any, guidance on whether the cited employer is
also responsible for employees of other employers. Darden expressly did not consider this latter
question. 503 U.S. 318, 320 (1992) ("Darden's ERISA claim can succeed only if he was
Nationwide's employee").

Moreover, contrary to Summit's claim (SB 11), the multi-employer worksite is not
based solely on the remedial purpose of the OSH Act; nor does it rely on the "correction of
mischief test" set forth in United States v. Silk, 331 U.S. 704, 713 (1947). Although the OSH
Act's statutory purpose of "assur[ing] so far as possible every working man and woman in the
Nation safe and healthful working conditions," 29 U.S.C. § 651(b), provides clear support for the
multi-employer worksite doctrine, this Commission and the courts have also relied on four
additional bases for the doctrine: first, the OSH Act's statutory text, namely the absence of any
limiting language in section 5(a)(2), e.g., Access Equipment, 18 OSHC at 1724; U.S. v. Pitt-Des
Moines, Inc., 168 F.3d 976, 983 (7 Cir. 1999); Brennan, 513 F.2d at 1038; second, the
legislative history emphasizing preventability, e.g., Access Equipment, 18 OSHC at 1724; Pitt-
Des Moines, 168 F.3d at 983; and third, "the peculiar needs of preventing hazards at construction
sites, which 'often entail different employees being exposed to hazards created by more than one
employer; Access Equipment, 18 OSHC at 1724 (quoting Pitt-Des Moines); Brennan, 513 F.2d

at 1038; Universal Const. Co. v. OSHRC, 182 F.3d 726 qo" Cir, 1999); and fourth, the well-


UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,
Complainant, : OSHRC Docket
No. 05-0839
v.
SUMMIT CONTRACTORS, INC.
Respondent.

REPLY BRIEF OF THE SECRETARY

HOWARD M. RADZELY
Solicitor of Labor

JOSEPH M. WOODWARD
Associate Solicitor for
Occupational Safety and Health

CHARLES F. JAMES
Counsel for Appellate Litigation

DANIEL J. MICK
Counsel for Regional Trial Litigation

GARY STEARMAN

Attorney for the Secretary of Labor
U.S. Department of Labor

200 Constitution Ave., N.W.
Room S-4004

Washington, D.C. 20210

(202) 693-5445

AUGUST 2006


Il.

The multi-employer worksite doctrine applies to violations of § 29 C.F.R.
1926.404(b).

Building on its contention that the multi-employer worksite is invalid,’ Summit next
argues that it cannot be liable under section 1926.404(b), the cited standard, because that section
imposes a duty on "employers" to provide ground fault protection to "employees." SB 18-19.
This contention simply has no merit. In pertinent part, section 1926.404(b)(1) provides that
"[t]he employer shall use either ground fault circuit interrupters . . . or an assured equipment
grounding conductor program . . . to protect employees on construction sites." The section thus
does not qualify either "employer" or "employee," and the critical possessive interlineations
Summit seeks to impose, namely that the employer must protect its own employees only, simply
are not found in the section. In fact, the section's coverage, without limitation, of "employees at
construction sites," where employees of many different employers are typically present, suggests
an employer's responsibility to all employees at the site. Moreover, the Commission has
previously affirmed a section 1926.404(b)(1) citation under the multi-employer worksite
doctrine. Blount International Ltd., 15 BNA OSHC 1897 (No. 89-1394 1992); see also
Universal, supra (violation of standard requiring "employee" to stand firmly on floor of boom
baskets upheld under multi-employer worksite doctrine). Thus, there is no merit to the

contention that the particular language of section 1926.404(b)(1) cannot support liability under

the multi-employer workplace doctrine.

> A fair portion of Summit's brief is devoted to attacking the validity of the multi-employer
worksite doctrine. SB 8-12. The Secretary has already responded to these arguments in Summit
Contractors, Inc., No. 03-1622 and will not reiterate her response here because the two cases
have been consolidated for oral argument. See August 9, 2006 order granting oral argument.

The Commission's briefing order here also did not identify the validity of the multi-employer
worksite doctrine as an issue.


maintained no presence at the worksite. In Vergona Crane Co., 15 BNA OSHC 1782 (No. 88-
01745 1992), the Commission upheld the citation, finding the workers were employees of the
cited employer.

The Secretary, by correctly interpreting the cases Summit's relies on, is not suggesting
that Darden plays no role under the OSH Act. Indeed, the just-discussed cases demonstrate its
validity as well as its limits. The distinction between employee and independent contractor can
be important because, generally speaking, somebody's employee has to be exposed to the cited
hazard or condition in order for there to be a violation; sole proprietors acting as independent
contractors fall outside the OSH Act and only an "employer" with one or more "employees" can
be cited under it. 29 U.S.C. § 652(5). But the distinction it is not important to the operation of
the multi-employer worksite doctrine because the multi-employer worksite doctrine does not
depend on an employment relationship between the cited employer and exposed worker.

In sum, because Darden and the multi-employer worksite doctrine address separate and
distinct issues, it is not surprising that the cases establishing the multi-employer worksite
doctrine do not mention Darden or Silk and that the Commission case law applying Darden fail
to discuss the multi-employer worksite doctrine cases.’ The two lines of cases concern distinct

issues, and Summit's attempt to link them is wrong.

? Although Summit cites Clarkson v. OSHRC, 531 F.2d 451 (10" Cir. 1976), as a multi-employer
worksite case relying on Silk, SB 12 n.4, Clarkson did not address or mention the doctrine, and
that same court, in expressly adopting the doctrine on grounds other than Si/k, said only that
Clarkson "implicitly endorsed" the doctrine. Universal, 182 F.3d at 731.


ARGUMENT
L

Nationwide Mutual Insurance v. Darden has no impact on the multi-employer
worksite doctrine and Commission precedent arising under the doctrine.

Summit's fundamental problem in trying to tie Darden to the multi-employer worksite
doctrine is its failure to recognize that Darden involved completely different issues from the
doctrine. On the one hand, Darden establishes a framework for determining the meaning of
undefined statutory terms that carry with them "accumulated settled meanings' under the
common law." Johnson v. City of Saline, 151 F.3d 564, 568 (e* Cir. 1998) ("[Darden] stands for
the proposition that when a statute has left a term undefined, has left no hint in the legislative
history of its intended meaning for the terms, and the term has ‘accumulated settled meaning!
under the common law, there is a presumption that Congress meant to incorporate the common-
law definition into the statute"); compare Varity Corp. v. Howe, 516 U.S. 489, 502 (1996) (citing
Darden and finding common law had given meaning to the term “fiduciary") with United States
v. Wells, 519 U.S. 482, 491 (1997) (citing Darden and finding no settled meaning in the common
law for the term "false statement").

On the other hand, however, the multi-employer worksite doctrine concerns whether an
employer is responsible for exposures of employees of other employers, not whether those
workers are the cited employer's employees under an expanded definition. Brennan v. OSHRC,
513 F.2d 1032, 1036 (2d Cir. 1975) ("We turn then to the important question whether a violation
of the Act requires in addition to proof the existence of a hazard, evidence of direct exposure to
the hazard by the employees of the employer who is responsible for the hazard.") (emphasis in
original). Consequently, the doctrine applies "regardless whether employees exposed or having

access to the condition are its own employees ‘or those of other employers engaged in a common


N & N Contractors, Inc.,
18 BNA OSHC 2121 (No. 96-0606, 2000)... ccseesssecseecsecseseeesesseseesteeseeseenees LL

*Nationwide Mutual Insurance v. Darden,
503 U.S. 318 (1992).

1, passim

Precision Concrete Constr.,
19 BNA OSHC 1404 (No. 99-707, 2001).....sessesssscseeseecseseeseeseseeesesseeseeseane LL

Pride Oil Weil Serv.,
15 BNA OSHC 1809 (No. 87-692, 1992)... eects LL, 14

RP. Carbone Constr. Co. v. OSHRC,
166 F.3d 815 (6th Cir, 1998) ....ceceecscecseesseesseesssessessseessesseserssarsentssneesnessessteeseeeseeses 8

Sasser Electric & Manufacturing Co.,
11 BNA OSHC 2133 (No. 82-178, 1984)..

Stahl Roofing, inc.
19 BNA OSHC 2179 (Nos. 00-1268 and 00-1637, 2003).......csssssssesescsseeeesteestecses 11

Timothy Victory,
18 BNA OSHC 1023 (No. 93-3359, 1997)...ccescessessseessseesessusesesssserseesesstessesseeeseeaee 5

*United States v. Pitt-Des Moines, Inc.,
168 F.3d 976 (7th Cir, 1999) ..ecceecceccsesseessessesssesneessecneeansenessasssneesnecsesseesseesesesees 4

United States v. Silk,
331 U.S. 704 (7th Cir. 1947)...

4,6

United States v. Wells,
$19 U.S. 482 (1997) cccccscesssssssssscnsssessssesnsessvnsessussessrasesiiansetsnstsesssseunsssenssssssee 3

Universal Constr. Co. v. OSHRC,
182 F.3d 726 (Oth Cir. 1999) oo. eessssecssssessseesssseessssecssseessneessuesuennssnesnseesssessseee 4, 55 6, 7

Varity Corporation v. Howe,

Vergona Crane Co.,
15 BNA OSHC 1782 (No. 88-01745, 1992).

Yates v. Hendon,
124 S.Ct 1330 (2004) ..ecsseescssescssseecssseecssnsessnescsseessuseessseessssssssusssseesssserssseessssessseesseees 5

iii


demonstrates the likelihood that Summit would receive equipment without GFCI protection,
unless specified otherwise.

It is important to recognize that the Commission has accepted an employer's reliance on a
subcontractor's expertise only in situations where: (1) an employer hires a subcontractor to
perform specialized work at the worksite; (2) the violation occurs within the specialist's area of
expertise; and (3) the employer did not create the hazard. See, e.g., Sasser, supra. This principle
has never been, and should not now for the first time be, extended to situations in which: (1) an
employer at a worksite rents equipment from a non-specialized equipment rental company; (2)
the rental company does not provide employees to operate the equipment and does not perform
any work of any kind at the worksite; and (3) the employer, not the rental company, controls and
is responsible for the equipment while it is used at the worksite.°

Finally, Summit suggests that this case is just like one in which a general contractor
orders materials that are delivered by a truck with faulty brakes or no back-up alarm. SB 21.
Among many other reasons distinguishing the two situations, in Summit's hypothetical, the
defective machinery (the lumberyard's truck) was not the item that the general contractor
ordered, and accordingly, the lumber yard was not simply following the general contractor's
instruction in using a defective truck. Nor was the general contractor making the truck available
for use by its subcontractor's employees.

A more relevant hypothetical is one in which the general contractor provides its own
generator and spiderbox without GFCI protection for its subcontractor use. If the general

contractor is the creating employer when it provides its own defective equipment, it should also

> Summit's contention (SB 20) that the subcontractor Mendoza, which was also cited and paid an
assessed penalty without contest, was in a better position to know of the violation because it
actually used the equipment is irrelevant. The issue here is Summit's duties, actions, and
knowledge. That other employers may also be liable for violating the standard does not relieve
Summit of its responsibilities. In any event, the subcontractors tooked to Summit to address and
resolve problems with the equipment. GX 20.

10


or constructive knowledge of the violative conditions, that knowledge is imputed to the
employer").

Here, Summit failed to act with reasonable diligence when it authorized onsite
superintendent Corthals to rent a temporary power system, but failed to implement any work
tules or provide any training or instruction related to the hazards associated with temporary
power systems or GFCI. Dep. 42-43, 45. As a result, Corthals was not specifically instructed
that generators and spiderboxes may not be equipped with GFCI, and he was not trained about
GFCI, the safe use of generators or spiderboxes, or even to take any steps to ensure that
temporary power systems rented by Summit have GFCI protection. Dep. 46, 52-53. Nor did
Summit require its superintendent to demonstrate any degree of knowledge about GFCI,
generators, or spiderboxes. Dep. 47. In short, Summit took absolutely no steps to address the
hazard that exists when a temporary power system does not include any GFCI protection. Such a
hazard should have been anticipated by Summit since its subcontract with Spring Hill gave
Summit the right to rent temporary power systems for use by the subcontractor (GX-16, at 16
("Attachment 'A'"), { 6), and because Summit's superintendent was authorized to rent such
equipment for use at the worksite. Moreover, it would have required minimal effort for Summit
to provide instruction to Corthals regarding the need to inspect generators and spiderboxes to
ensure that they are equipped with GFCI, as demonstrated by the fact that, after the OSHA
inspection, Summit did, in fact, instruct Corthals to make sure such equipment is equipped with
GFCI in the future. Dep. 47.

Had Summit acted with reasonable diligence, it would have anticipated the possibility of
a hazard at the worksite related to temporary power systems rented by Summit, and would have
not only implemented appropriate work rules, but also provided relevant training and instruction.
Its superintendent would have known that not all generators and spiderboxes are equipped with
GFCI, and he would have inspected the equipment and immediately discovered the absence of

GFCI. Because Summit’s superintendent could have known of the violative conditions if

12


TABLE OF AUTHORITIES

CASES: pages

Access Equipment Systems, Inc.,
18 BNA OSHC 1718 (1999) ..cscsssssesccsssseeesssssssscssssneeesssnreesesnnsssessnsesssssisecsssneecsssseene 4

AAA Delivery Services, Inc.,
21 BNA OSHC 1219 (No. 02-0923, 2005).......cecscessecstssseesstessessseessessnessesssessseeseeenve 5

Allstate Painting and Contracting Co., Inc.,
21 BNA OSHC 1033 (Nos. 97-1631& 97-1727, 2005)....cccsescsessseessseeseeees

*Blount International Ltd,
15 BNA OSHC 1897 (No. 89-1394 1992)....secsccssssecsseeeseeseensesussssseesesees 75 8 LL, 13

*Brennan v. OSHRC,
513 F.2d 1032 (2d Cir. 1975).....cccsecsssescssseecssssessseecssueessseesssessnnesssnesssssessseesssessssesssees By 4

Centex-Rooney Constr. Co.,
16 BNA OSHC 2127 (No. 92-0851, 1994)... ecsscssssecsescssseessseesssesssesssesssreessesessvess 13

Clarkson v. OSHRC,
531 F.2d 451 (10th Cir. 1976) .oi.essessseessstecssneesssneessneeesneeesse

David Weekly Homes,
19 BNA OSHC 1116 (No. 96-0898, 2000).......csesssescssseessseeesseesesnssssssesssecesssecsseessseses 13

Dolan y. USPS,

Don Davis, d/b/a Davis Ditching and Davis Ditching, Inc.,
19 BNA OSHC 1477 (No. 96-1378, 2001)....sccscssssseeecssssnecssssuesseecnecssnasecsssseesssseees 5

Dover Elevator Co.,
16 BNA OSHC 1281 (No. 91- 862, 1993).......escseesecsessseesecstensiesseeese

Johnson v. City of Saline,
151 F.3d 564 (6th Cir, 1998) .oeesccesssssesssseessssecssseessnesssnecssnseesssecssuessseeesseessssesssseessee 3

Frank Swidzinski Co.,
9 BNA OSHC 1230 (No. 76-4627, 1981) ....ssesesssescsseeessseeesssessssescssseessseesssecssercuseeeesee il

*Cases chiefly relied upon are marked with an asterisk

ii


TABLE OF CONTENTS

INTRODUCTION .........0..ccccccsesssessseesseessseeeneesseessessnetsseesneeasense

ARGUMENT

IL.

I.

Iv.

Nationwide Mutual Insurance v. Darden has no impact on the multi-

employer worksite doctrine and Commission precedent arising under the
COCHIN 0... ecceeecesseesseessessseesstesstesseeensessuessesssesenesseesseessteestesneesesnteasensseeseees 3

The multi-employer worksite doctrine applies to violations of 29 C.F.R. §
1926.404(b) cesesssssssssecsscesesssssssssessscesscessansssssesssssesesesvuasnasessesseeeeseeseseeeeeenavase 7

Summit incorrectly blames the rental company for creating the hazard ....... 8

Summit had constructive knowledge of the violative condition because
it failed to act with reasonable diligence... LL

CERTIFICATE OF SERVICE


Ii.

Summit incorrectly blames the rental company for creating the hazard.

Summit also contends that it did not create the hazard "simply by placing a telephone
order for the delivery” of the equipment and attempts to shift the blame on the rental company,
Cleveland Brothers. SB 21. Summit, however, ignores its own role in making the violative
equipment available for use by the subcontractor employees. Summit was responsible for
ordering the generator and spider box and caused the equipment to come to the site. Its failure to
specify equipment with GFCI protection allowed the rental company the freedom to deliver any
kind of generator and spider box; and Summit's failure to inspect the equipment, i.e., to lift up a
flap, permitted the non-compliant equipment to be available for use at the site for over a week.
Clearly, Summit was far more responsible than any other entity for making the non-compliant
equipment available for use by the subcontractor (which was contractually-obligated to use the
electrical services provided by Summit). And it was Summit — as the creating employer — who
abated the hazard by obtaining a new generator and spider box with GFCI protection.’

Summit's attempt to shift the focus and blame onto Cleveland Brothers is unpersuasive.
First, Cleveland Brothers simply followed Summit's instruction and delivered the equipment
Summit ordered. If Summit needed a particular type of equipment, i.¢., a generator and
spiderbox with GFCI protection, it needed to request it. Nor may Summit reasonably claim
reliance on Cleveland Brothers’ supposed expertise because Summit was required to first
"apprise itself as to what safety efforts the subcontractor has made." R.P. Carbone Const. Co. v.
OSHRC, 166 F.3d 815, 820 (6TM Cir. 1998) (citing Blount International Ltd., supra); see also,
e.g., Sasser Electric & Manufacturing Co., 11 BNA OSHC 2133, 2136 (No. 82-178, 1984) ("n

employer is justified in relying upon the specialist to protect against hazards related to the

‘ Although Summit describes its rental of the generator and spider box as an "accommodation,"
its contract with Spring Hill expressly gave Summit the right to assume responsibility for
providing temporary power at the worksite and required the subcontractor to use these services.
GX-16, at 16 (“Attachment ‘A””) 6. In any event, Summit is liable for creating the hazard,
regardless of its underlying reasons for doing so.


be a creating employer by ordering the same equipment without specifying or inspecting for
GFCI protection and making it available for use by subcontractor employees at the jobsite.

Iv.

Summit had constructive knowledge of the violative condition because it failed to act
with reasonable diligence.

Summit contends in its opening brief that the Secretary failed to establish that it knew of
the violative condition. SB 22-27. Although Summit lacked actual knowledge of the condition,
it wrongly contends it did not have constructive knowledge of it. Constructive knowledge exists
when the employer, with the exercise of reasonable diligence, could have known of the violative
condition. See, e.g., Blount, 15 BNA OSHC at 1899; Pride Oil Well Service, 15 BNA OSHC
1809, 1814 (No. 87-692, 1992).° "An inquiry into whether an employer was reasonably diligent
involves several factors, including the employer’s obligation to have adequate work rules and
training programs, to adequately supervise employees, to anticipate hazards to which employees
may be exposed, and to take measures to prevent the occurrence of violations." Stahl Roofing,
Inc., 19 BNA OSHC 2179, 2181 (Nos. 00-1268 and 00-1637, 2003) (citing Precision Concrete
Constr., 19 BNA OSHC 1404, 1407 (No. 99-707, 2001)). Reasonable diligence also involves an
employer's obligation to inspect the work area. See, e.g., Pride Oil, 15 BNA OSHC at 1814
(citing Frank Swidzinski Co.,9 BNA OSHC 1230, 1233 (No. 76-4627, 1981)); N & N
Contractors, Inc., 18 BNA OSHC 2121, 2124 (No. 96-0606, 2000), affd, 255 F.3d 122 (4th Cir.
2001) ("Reasonable diligence implies effort, attention, and action; not mere reliance upon
another to make violations known."). This constructive knowledge, in turn, may be imputed to
Respondent because of Corthals’ position as the onsite superintendent. See, e.g., Dover Elevator

Co., 16 BNA OSHC 1281, 1286 (No. 91- 862, 1993) ("when a supervisory employee has actual

6 The Secretary's opening brief similarly argues that Summit as a "controlling employer" under
the multi-employer worksite doctrine failed to exercise reasonable care to prevent or detect or
abate the violation. Op. Br. 12-14.

11