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Court Says Builders Must See to Safety of Subs' Workers
Following a Feb. 26 decision by the U.S. Court of Appeals for the 8th Circuit in Secretary of Labor v. Summit Contractors upholding the legality of the Occupational Safety and Health Administration's multi-employer citation policy, the nation’s home builders announced that they will be encouraging OSHA to address the issue through the rulemaking process.
In a two-to-one decision, the court last week reversed an April 2007 decision by the Occupational Safety and Health Review Commission against the multi-employer citation policy, which was used in a citation against Summit. OSHA had cited Summit — as the general contractor for the construction of a college dormitory in Little Rock, Ark. — for failing to ensure the use of fall protection devices by masonry subcontractor employees at the site working on scaffolds more than 12 feet high.
OSHA said that Summit “controlled” the work site and therefore had a duty to detect violations by subs and compel them to correct violations.
In effect, the Labor secretary’s multi-employer citation rule makes the safety and health of the employees of subcontractors on a job site the responsibility of the builder, and not the subcontractor that hires the employees.
The appeals court last week ruled that the Department of Labor’s regulation 29 CFR 1910.12(a) does not preclude OSHA from issuing citations to employers who have the ability to prevent or abate hazardous conditions created by subcontractors — regardless of whether the employer created the hazard — or for violations in which their own employees are not exposed to any hazards related to the violatiionis.
The court said that the Occupational Safety and Health Review Commission had abused its discretion in determining that the controlling employer citation policy was in conflict with the regulation. Judge Arlen Beam dissented.
NAHB joined the Texas Association of Builders and the Greater Houston Builders Association in filing an amicus brief in the 8th Circuit in 2007 in support of Summit.
Since it was first cited by OSHA, Summit has argued that:
- Neither the Occupational Safety and Health Act nor any validly promulgated regulation imposes a duty on one employer to ensure that some other, separate employer complies with OSHA.
- There is no statutory or regulatory authority for OSHA to issue citations and levy fines against one employer for violations committed by another employer.
- OSHA, therefore, had no legal authority to cite Summit on the theory that Summit should have ensured that the masonry subcontractor complied with the OSHA regulations.
“OSHA’s multi-employer citation policy is bad public policy because it imposes undue and unpredictable burdens on home builders and creates confusion at the work site over who is responsible for the safety of workers,” said NAHB Executive Vice President Jerry Howard, commenting on last week’s decision. “Therefore, it actually jeopardizes work-site safety. That’s not fair to the men and women who build our nation’s houses,” he said.
“We agree with Judge Beam who in his dissenting opinion observed that to impose the Secretary’s rule on the general home building contractor was, in his view, absurd as a matter of rational policy,” Howard said.
“We encourage OSHA to resolve any further questions on this issue in a public rulemaking, and will work with the agency in any rulemaking to ensure the adoption of fair and equitable rules,” he said. “When employers take responsibility for their employees, worker safety is enhanced.”
For more information about this case, e-mail David Jaffe at NAHB, or call him at 800-368-5242 x8317.
 Boost Job Site Safety With Fall Protection Training Products
In an effort to increase job site safety and reduce the chance of job related accidents, NAHB has produced the “Fall Protection Video, English-Spanish” and “NAHB-OSHA Fall Protection Handbook, English-Spanish.”
Both are available through BuilderBooks.com.
The 30-minute “Fall Protection Video, English-Spanish” can be used by builders to train workers to use safe work practices that eliminate fall hazards and comply with OSHA fall-protection standards.
The “NAHB-OSHA Fall Protection Handbook, English-Spanish” provides guidelines for creating a written fall-protection plan and identifying safe work practices that can prevent costly accidents and injuries. Written with clear text, photographs and illustrations, the book serves as a user-friendly resource for promoting safety on any job site.
To purchase the handbook and video online, click here, or call 800-223-2665.
 Create a Safer Job Site
Four common hazards cause 90% of the injuries and fatalities on residential construction job sites.
The “Recognizing the Big-Four Safety Hazards for the Home Building Industry” course from The NAHB University of Housing shows how to comply with OSHA regulations and to recognize and minimize those hazards most likely to cause accidents.
The course teaches builders to protect their workers from harm and themselves from liability. This course is also available in Spanish.
To find out where upcoming courses are being held, click here, or call 800-368-5242 x8154 for more information.
Home Builders Institute Offers New Program to Teach Hispanic Adults English
 Sed de Saber™-Construction Edition is an easy-to-use, take-home learning tool created exclusively for the construction industry by the Home Builders Institute to improve communication, quality and safety on the job site.
The product, now available at www.seddesaberconstruction.com, uses proven LeapFrog technology to allow workers to listen, record and play back their pronunciation of more than 500 vocabulary words and 340 phrases. Participants who practice 30 minutes each day will complete the program in just four months. Learning at home, on their own time, also eliminates scheduling conflicts.
 Sed de Saber™-Construction Edition was developed by a team of subject matter experts assembled through HBI — including superintendents, craft skills experts, remodelers and builders — to ensure that the information is relevant to today’s home building workforce. To address worker safety issues related to the language barrier, HBI created a seventh book based entirely on the NAHB-OSHA Job Site Safety Handbook.
NAHB members can purchase the learning system, all seven books and a skills assessment to chart employee progress for $395 per kit. The non-member price is $495. Order today and empower your workers to learn English at www.seddesaberconstruction.com.
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