June 2009

Spotlight On Safety
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Federal Court Decision Protects Construction Safety

A February decision by the 8th U.S. Circuit Court of Appeals will improve safety enforcement in the building trades.

The court restored a long-standing OSHA doctrine that general contractors could be found liable for unsafe conditions caused by subcontractors. That policy was overturned in 2007 by the Occupational Safety and Health Review Commission, an independent federal agency, after an appeal from an Arkansas contractor.

“This decision highlights the importance of making the employer with overall control of a construction project responsible for the safety of all workers on the site,” says attorney Victoria Bor, who represented the Building and Construction Trades Department, AFL-CIO, in Solis v. Summit Contractors.

The case stemmed from a 2003 citation by OSHA against Summit, a general contractor, building a college dormitory in Little Rock, Ark. Summit had subcontracted brick masonry work on the project. An OSHA compliance officer observed the subcontractor’s employees working on scaffolds which lacked guardrails and adequate fall protection in violation of federal regulations. OSHA issued citations to both Summit and the subcontractor.

Summit disputed the citation arguing that OSHA’s standards only require a contractor to protect his own employees. An administrative law judge upheld the citation, but, in 2007, the three-person Occupational Safety and Health Review Commission reversed the decision in a 2 to 1 vote.

OSHRC members are appointed by the president. By tradition, two are from the president’s party. The vote was on party lines, with two Republican commissioners voting to overturn Summit’s citation.

Construction managers are already planning to undermine the court’s holding.

In a story in the environmental health and safety magazine EHS Today, Stephen C. Yohay, a management-side attorney, says that it is “fair to expect that challenges to the multi-employer policy will continue to be raised.”

“‘Safety is everyone’s responsibility’ is more than a slogan,” says IBEW Safety Director Jim Tomaseski. “IBEW and the Building Trades will be vigilant in defending the Summit decision and ensuring that all contractors abide by legal protections and promote a culture of safety awareness on the job.”