Solis v. Summit Contractors, Inc.

Summit Contractors, Inc. (Summit) (defendant) was the general contractor for the construction of a college dormitory. Summit subcontracted the entire project and had only four employees at the construction site—a project superintendent and three assistant superintendents. The exterior masonry work was subcontracted to All Phase Construction, Inc. (All Phase). Summit’s project superintendent observed All Phase employees working on scaffolds without fall protection in violation of Occupational Safety and Health Administration (OSHA) regulations and warned All Phase to correct the violation multiple times. None of Summit’s employees were exposed to any hazard created by the scaffold violations, but an OSHA officer cited Summit for the violation based on a policy known as the controlling-employer-citation policy. Under the controlling-employer-citation policy, a general contractor could be cited for a hazardous condition created by a subcontractor at a construction site if the general contractor could have prevented or abated the hazardous condition through the reasonable exercise of supervisory authority, regardless of whether the general contractor’s own employees were exposed to the hazard. Summit contested the citation, arguing that under 29 C.F.R. § 1910.12(a), OSHA was not authorized to cite a controlling employer whose own employees were not exposed to the hazardous condition. The Occupational Safety and Health Review Commission (commission) agreed with Summit and vacated the citation. Hilda Solis, secretary of the United States Department of Labor (secretary) (plaintiff), then petitioned for judicial review.