May 28,1999


Mr. Felipe Devora
Co-Chairman – ACCSH Multi-Employer Workgroup
Fretz Construction Company
P.O. Box 266784
Houston, TX 77207-6784

Dear Felipe:

On behalf of the 197,000 members of the National Association of the Home Builders (NAHB), I would like to submit these comments to the Advisory Committee on Construction Safety and Health (ACCSH) Multi-Employer Workgroup on its draft revision to the Occupational Safety and Health Administration’s (OSHA) multi-employer worksite citation policy. NAHB represents more than 197,000 members organized in over 850 affiliated state and local associations in all fifty states, the District of Columbia, and Puerto Rico. Our members include not only builders and remodelers of single family homes, but also apartments, condominium, commercial and industrial builders, and over 40,000 subcontractors. NAHB is therefore concerned with any OSHA policy that will affect our members’ ability to manage safe worksite for their employees.

Home builders not only acknowledge a legal and moral obligation to provide their own employees with a safe workplace, they share the concerns of the ACCSH for the health and safety of all mean and women employed in the building industry. Further, our members share the same ultimate goal of ensuring a safe working environment. NAHB believes, however, that OSHA does not have the statutory authority to cite any employer for violations committed by other employers. In adopting a policy for enforcement that allows builders and general contractors to be cited for violations they neither created nor had employees exposed to, OSHA has exceeded the enforcement power originally granted to the Agency under the OSH Act. While there is clearly a moral obligation for an employer to ensure that everyone on a worksite is safe from recognized hazards, the OSH Act only states that employers are accountable for the safety and health of their own employees. It is for this reason that OSHA must end its practice of holding builders responsible for subcontractor violations.

Builders know that creating a safe work environments makes good business sense. It is not secret that safety saves lives – and money. Builders have learned that the money saved through reduced workers’ compensation costs, lost time due to workers injuries, and less time spent of accident claims and reports can be converted to improvements ion the way they operate their businesses, including the managements of safety and health on the jobsite.

NAHB believes that OSHA must end its practice of holding builders responsible for the employees of subcontractors and return OSHA to a fairer enforcement policy - a policy that recognizes and respects the contractual allocation of responsibility on a construction jobsite.

To appreciate fully the impact that the OSHA policy has on the residential construction industry, it is important to understand the character of the industry. Home builders could not survive without subcontracting out a large portion of the work performed on a typical residential construction site. It is not uncommon for a builder to employ subcontractors to handle any number of tasks, including electrical, plumbing, roofing, painting, dry wall, and paving. Considering this, it is safe to say that a great number of workers on a given job site at any time are employed by someone other than the builder. By entering into an agreements with a subcontractor, a builder does not intend to assume liability or responsibility for that subcontractor’s employees; it is understood that the subcontractor is agreeing that he will do a specific job. Unless it is contained within the contractual agreement, the builder exhibits not control over, and assumes no responsibility for, these employees.

By continuing its policy of citing both the builder and the subcontractor for the subcontractor’s violation, OSHA demonstrates that it lacks a clear understanding of the residential construction process. The Agency mistakenly assumes that a builder is always on site and in complete control of all activities at all times. One self-employed builder with no employees can have several scattered site under construction and must travel back and forth between them. This builder clearly cannot be on every site at all times. OSHA still mistakenly perceives the typical homebuilder as someone who has the ability to spread production and regulatory costs across many projects. This is simply not accurate. Over 75% of our members build fewer than 10 homes a year. A typical builder may have several sites under construction at any one time and cannot afford the resources to monitor every site at all times. Yet, OSHA continues to ignore this fact and hold builders liable for the violations of their subcontractors by issuing "multi-employer" citations.

It is NAHB's belief that OSHA has exceeded its statutory authority with the multi-employer citation policy. There is not section of the OSH act that mentions one employer's responsibility for the employees of another employer. OSHA must be limited to the authority that was granted to the Agency under the OSH act. That authority is clearly defined in the general duty clause:

Section 5. Duties

(a) Each employer-

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are cusing or a re likely to cause deat or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

Within the OSH act, congress did grant OSHA the ability to develop rules and regulations that deal with the inspection process. Any regulation that would be developed, however, must still be based on the premise of the scope of the authority contained in the Act, the employer-employee relationship.

Section 8. Inspections, Investigations, and Recordkeeping

(g)(2) The Secretary and the Secretary of Health, Education, and Welfare shall each prescribe such rules and regulations as he may deem necessary to carry out their responsibilities under this act, including rules and regulations dealing with the inspection of an employer's establishment.

To date, OSHA has never promulgated a standard that holds builders liable for violations of other employers. In fact, the current citation policy has never been scrutinized by the regulation promulgation process. OSHA's multi-employer citation policy should be discontinued. Builders should not be cited for their subcontractor's violation if the builder has not employees exposed to the hazard and has not assumed the liability through a contractual agreement.

The ACCSH Workgroup has developed a Draft Revision to OSHA's policy. NAHB does not support the Draft Revision or any policy that will continue to allow builders to be cited by OSHA for violations of a subcontractor.

Sincerely,
[Signature]
David D. DeLorenzo
Director – Labor, Safety & Health Services
National Association of Home Builders