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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
COMMISSIONER OF LABOR OF THE STATE OF NORTH CAROLINA, Respondent,
v. WEEKLEY HOMES, L.P., d/b/a DAVID WEEKLEY HOMES, Petitioner
Filed: 15 March 2005
1. Appeal and Error_assignments of error_required_appendixes_statutes, rules,
The Court of Appeals considered certain arguments, in its discretion, even though the
questions did not refer to the pertinent assignments of error, as required. Respondent's motion to
strike certain appendixes to petitioner's brief was denied, even though they were not part of the
printed record on appeal nor offered into evidence, because appendixes were relevant portions
of statutes, rules, or regulations, as permitted by N.C.R. App. P. 28 (d)(1)(c). An appendix
consisting of an excerpt from S.B. 575 was stricken.
2. Administrative Law_judicial review of agency decision_standard of review_whole
record and de novo
The superior court properly employed both de novo review and the whole record test in
reviewing an OSHA citation where petitioner alleged that the Department of Labor's decision
was affected by error of law and was unsupported by substantial evidence.
3. Employer and Employee_OSHA_violations by subcontractors--general contractor's
duty to inspect job site
A general contractor had a duty to inspect the job site to detect safety violations
committed by its subcontractors as well as its own employees. Under N.C.G.S. § 95-129(2),
the general contractor's duty extends to employees of subcontractors on job sites, but only to
violations that could reasonably be detected by inspecting the job site.
4. Administrative Law_Operations Manual statement_rule-making not required
The multi-employer OSHA citation policy is not invalid because it has not been
promulgated as a rule. The multi-employer policy is from the North Carolina Operations
Manual, which is a non-binding interpretative statement, not a rule requiring formal rule-making
Appeal by petitioner from order entered 26 September 2003 by
Judge Ripley E. Rand in Wake County Superior Court. Heard in the
Court of Appeals 11 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Jane Ammons Gilchrist and Assistant Attorney General Linda
Kimbell, for the State.
Maupin Taylor, P.A., by Michael C. Lord, and Rader & Campbell,
by Robert E. Rader, Jr., for petitioner.
MARTIN, Chief Judge.
Petitioner, Weekley Homes, L.P. (Weekley), appeals from a
citation issued by the North Carolina Department of Labor on 21 May
1999 alleging a violation of the Occupational Safety and Health
Standards. Weekley, a general contractor, coordinated
subcontractors, materials and homeowners for thirty-eight houses
under construction in a subdivision in Huntersville, North
Carolina. For this project, Weekley employed two builders who
maintained the construction schedule for six to ten houses at a
time. The builders spent seventy to eighty percent of their time
in the job site trailer coordinating approximately one hundred
subcontractors and delivery of materials for the project.
On 17 March 1999, Lee Peacock (Peacock), a Safety Compliance
Officer in the North Carolina Department of Labor, observed from a
public road individuals working on a steep pitch roof over six feet
from the ground without fall protection. After receiving
permission from his supervisor, Peacock conducted an inspection of
the job site on 18 March 1999. He observed three houses where
employees of a Weekley subcontractor were working without fall
The Department of Labor cited Weekley for a violation of 29
CFR 1926.20(b)(2) for failure to conduct [f]requent or regular
inspections of the jobsite . . . as part of an accident prevention
program. On 5 December 2000, after hearing evidence and reviewing
the parties' briefs, an Administrative Law Judge with the Safetyand Health Review Board entered an order affirming the citation.
After Weekley petitioned for review, the North Carolina Safety and
Health Review Board affirmed the order. Weekley petitioned for
judicial review and after considering the record, the briefs and
the arguments of the parties the Superior Court affirmed the order
of the review board. Weekley gave notice of appeal to this Court.
 As an initial matter we address respondent-appellee's
motion to dismiss petitioner's appeal for violation of the North
Carolina Rules of Appellate Procedure. Respondent points out
numerous violations in petitioner's brief including, most
the questions presented for argument do not refer
to the pertinent assignments of error in the record as required by
N.C. R. App. P. 28(b)(6) (2004).
The Rules of Appellate Procedure
are mandatory and failure to follow the rules subjects an appeal to
dismissal. Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d
566, 567-568 (1984).
Nevertheless, in our discretion, we will
consider petitioner's arguments on the merits. N.C. R. App. P. 2
also moves the Court to strike Appendixes
2, 3, 4 and 5 of
brief pursuant to N.C. R. App. P.
37(a) because the content of these appendixes was not part of the
printed record on appeal nor were they offered into evidence. N.C.
R. App. P. 28(d)(1)(c) allows the attachment of relevant portions
of statutes, rules, or regulations, the study of which is requiredto determine questions presented in the brief as an appendix.
Petitioner has attached as Appendix 2, portions of the Federal OSHA
Compliance Operations Manual (1972); as Appendix 3, portions of the
North Carolina Operations Manual (1973); as Appendix 4, portions of
the North Carolina Operations Manual (1993); and as Appendix 5 an
excerpt from S.B. 575.
Since Appendixes 2, 3 and 4 fall within
those items permitted by Rule 28, we deny
respondent's motion to
strike these Appendixes. However, we grant respondent's motion to
strike Appendix 5.
 The standard of review of an administrative agency's
decision on judicial review is determined by the issues presented
on appeal. ACT-UP Triangle v. Commission for Health Services, 345
N.C. 699, 706, 483 S.E.2d 388, 392 (1997). A reviewing court:
may affirm the decision of the agency or remand . . . for
further proceedings. It may also reverse or modify the
agency's decision, or adopt the administrative law
judge's decision if the substantial rights of the
petitioners may have been prejudiced because the agency's
findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional
(2) In excess of the statutory
authority or jurisdiction of
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial
evidence admissible under G.S.
150B-29(a), 150B-30, or 150B-31
in view of the entire record as
(6) Arbitrary, capricious, or an
abuse of discretion.
N.C. Gen. Stat. § 150B-51(b) (2003).
Where the party alleges the agency violated subsections one
through four of N.C. Gen. Stat. § 150B-51, the court engages in de
novo review, reviewing for errors of law. Dorsey v. UNC-
Wilmington, 122 N.C. App. 58, 62, 468 S.E.2d 557, 559, cert.
denied, 344 N.C. 629, 477 S.E.2d 37 (1996). However, when the
substance of the allegation implicates subsections five or six, the
reviewing court employs the whole record test. Id. The 'whole
record' test requires the court to examine all competent evidence
comprising the 'whole record' in order to ascertain if substantial
evidence therein supports the administrative agency decision. Id.
at 62, 468 S.E.2d at 560. Substantial evidence is defined as
which a reasonable mind would regard as adequately
supporting a particular conclusion. Id. The appellate court
examines the superior court's order for errors of law by (1)
determining whether the trial court exercised the appropriate scope
of review and, if appropriate, (2) deciding whether the court did
so properly. ACT-UP Triangle, 345 N.C. at 706, 483 S.E.2d at 392
(quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App.
668, 675, 443 S.E.2d 114, 118-119 (1994)).
In this case, petitioner alleged the agency's decision was
affected by error of law and was unsupported by substantial
evidence. The superior court properly employed both standards of
review and concluded the review board's findings were supported bysubstantial evidence and were not affected by error of law.
 Petitioner argues that the Occupational Safety and Health
Act (OSHA) makes a general contractor responsible only for the
safety of his own employees. Congress enacted OSHA in 1970 to
assure so far as possible every working man and woman in the Nation
safe and healthful working conditions and to preserve our human
resources. 29 U.S.C. § 651. North Carolina, as permitted under
the federal act, 29 U.S.C. § 667, Brooks, Comr. of Labor v. Butler,
70 N.C. App. 681, 684, 321 S.E.2d 440, 442 (1984), disc. review
denied, 313 N.C. 327, 329 S.E.2d 385 (1985), administers and
operates, under federal supervision, its own plan, known as the
Occupational Safety and Health Act of North Carolina (OSHANC).
N.C. Gen. Stat. § 95-126 et. seq. (2003). Pursuant to N.C. Gen.
Stat. § 95-131, the federal occupational safety and health
standards have been adopted by North Carolina. N.C. Gen. Stat. §
95-131 (2003). OSHANC sets forth the rights and duties of
employers including but not limited to the following provisions:
(1) Each employer shall furnish to each of his
employees conditions of employment and a place of
employment free from recognized hazards that are
causing or are likely to cause death or serious
injury or serious physical harm to his employees;
(2) Each employer shall comply with occupational
safety and health standards or regulations
promulgated pursuant to this Article.
N.C. Gen. Stat. § 95-129(1) and (2) (2003). North Carolina's Act
is substantially the same as the federal Act. 29 U.S.C. § 654.
Petitioner contends that neither Congress nor the NorthCarolina legislature intended to impose a duty on an employer to
protect the employees of its independent contractors. In support
of their argument, petitioner points to definitions in the Act. An
occupational safety and health standard is defined as a standard
reasonably necessary and appropriate to provide safe and healthful
employment and places of employment, N.C. Gen. Stat. § 95-127(15)
(2003); see 29 U.S.C. § 652(8) (1998), while employer is defined
as a person engaged in a business who has employees. N.C. Gen.
Stat. § 95-127(10) (2003); see 29 U.S.C. § 652(5) (1998).
Petitioner interprets these definitions in combination as
prescribing the duties of an employer only in reference to his own
employees, not those of another entity.
In addition, petitioner argues that N.C. Gen. Stat. § 95-129
and 29 U.S.C. § 654(a) impose a duty on each employer to furnish a
safe workplace and to comply with specific standards regarding only
his own employees. Petitioner contends the legislature understood
the difference between one who operates or controls the workplace
and one who is an employer and argues that had the legislature
intended the Act to apply to employees of another employer on a
multi-employer worksite, it would have defined employer
differently. We reject petitioner's interpretation of the statute.
When the issue on appeal is whether a state agency erred in
interpreting a statutory term, an appellate court may freely
substitute its judgment for that of the agency and employ de novo
review. Brooks, Comr. of Labor v. Grading Co., 303 N.C. 573, 580,
281 S.E.2d 24, 29 (1981) (citations omitted). However, even whenreviewing a case de novo, courts recognize the long-standing
tradition of according deference to the agency's interpretation,
County of Durham v. N.C. Dep't of Env't. & Natural Resources, 131
N.C. App. 395, 396, 507 S.E.2d 310, 311 (1998), disc. review
denied, 350 N.C. 92, 528 S.E.2d 361 (1999), as long as the agency's
interpretation was a reasonable and permissible construction of the
statute. Id. at 397, 507 S.E.2d at 311.
In Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837,
842-843, 81 L. E.2d 694, 702-703, reh'g denied, 468 U.S. 1227, 82
L. Ed. 2d 921 (1984), the United States Supreme Court stated:
When a court reviews an agency's construction of the
statute which it administers, it is confronted with two
questions. First, always, is the question whether
Congress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress. If, however, the court determines Congress has
not directly addressed the precise question at issue, the
court does not simply impose its own construction on the
statute, as would be necessary in the absence of an
administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency's answer
is based on a permissible construction of the statute.
When a statute is ambiguous, the courts should consider the
language of the statute, the spirit of the act, and what the act
seeks to accomplish, Tellado v. Ti-Caro Corp., 119 N.C. App. 529,
533, 459 S.E.2d 27, 30 (1995), in order to assure that the intent
of the legislature is accomplished. Id.
Neither OSHANC nor OSHA specifically address whether an
employer is responsible for violation of standards by a
subcontractor's employees on a multi-employer worksite. While weagree that N.C. Gen. Stat. § 95-129(1) imposes a general duty on an
employer to protect his employees, we believe N.C. Gen. Stat. § 95-
129(2), which imposes a specific or special duty on an employer to
comply with OSHA standards, does not limit the duty of the employer
only to his own employees. N.C. Gen. Stat. § 95-126(2) declares the
purpose of the act is to ensure so far as possible every working
man and woman in the State of North Carolina safe and healthful
working conditions and to preserve our human resources. N.C. Gen.
Stat. § 95-126(2) (2003). This broad purpose, protecting every
working man and woman, does not fit with petitioner's narrow
reading of the statute. As the Sixth Circuit held when deciding
this issue in Teal v. E.I. Dupont, 728 F.2d 799, 804 (6th Cir.
1984), If the special duty provision is logically construed as
imposing an obligation on the part of employers to protect all of
the employees who work at a particular job site, then the employees
of an independent contractor who work on the premises of another
employer must be considered members of the class that Sec. 654(a)(2)
was intended to protect. Furthermore, the conspicuous absence of
any limiting language . . . indicate[s] that a broader class was
meant to be protected. U.S. v. Pitt-Des Moines, Inc., 168 F.3d
976, 983 (7th Cir. 1999); see Russello v. United States, 464 U.S.
16, 23, 78 L. Ed. 2d 17, 23 (1983).
The multi-employer doctrine provides that an employer who
controls or creates a worksite safety hazard may be liable under the
Occupational Safety and Health Act even if the employees threatened
by the hazard are solely employees of another employer. UniversalConst. Co., Inc. v. O.S.H.R.C., 182 F.3d 726, 728 (10th Cir. 1999).
The theory underlying the doctrine is that since the contractor is
subject to OSHA's regulations of safety in construction by virtue
of being engaged in the construction business, and has to comply
with those regulations in order to protect his own workers at the
site, it is sensible to think of him as assuming the same duty to
the other workers at the site who might be injured or killed if he
violated the regulations. U.S. v. MYR Group, Inc., 361 F.3d 364,
366 (7th Cir. 2004). Each employer at the worksite controls a part
of the dangerous activities occurring at the site and is the logical
person to be made responsible for protecting everyone at the site
from the dangers that are within his power to control. Id. at 367.
The only two North Carolina cases that address the multi-
employer worksite doctrine are inapposite to the issue presented in
the present case. In both of those cases, the Court affirmed
citations against employers because they had allowed their own
employees, rather than employees of a subcontractor, to be exposed
to the hazards created by the subcontractor. Brooks v. BCF Piping,
109 N.C. App 26, 426 S.E.2d 282, (1993) (holding an employer's duty
to provide a safe workplace is nondelegable); Brooks, Com'r. of
Labor v. Rebarco, Inc., 91 N.C. App. 459, 372 S.E.2d 342 (1988)
(holding an employer is expected to make reasonable efforts to
detect and abate any violation of safety standards of which it is
aware and to which its employees are exposed.). However, because
of the substantial similarities between OSHANC and the federal Act,
this Court also looks to federal court decisions for guidance ininterpreting OSHANC. Butler, 70 N.C. App. at 684, 321 S.E.2d at
442; Brooks, Com'r. of Labor v. Dover Elevator Co., 94 N.C. App.
139, 142, 379 S.E.2d 707, 709 (1989). Most circuits have expressed
approval of the multi-employer worksite doctrine. See Pitt-Des
Moines, Inc., 168 F.3d at 984-985; R. P. Carbone v. OSHRC, 166 F.3d
815, 818 (6th Cir. 1998); Beatty Equipment Leasing v. Secretary of
Labor, 577 F.2d 534, 537 (9th Cir. 1978); Marshall v. Knutson Const.
Co., 566 F.2d 596, 599-600 (8th Cir. 1977); Brennan v. Occupational
Safety & Health Rev. Com'n, 513 F.2d 1032, 1037-1039 (2d Cir. 1975);
Universal Const. Co., Inc., 182 F.3d at 730-731; but see Melerine
v. Avondale Shipyards, Inc., 659 F.2d 706, 710-11 (5th Cir. 1981)
(holding that OSHA regulations protect only an employer's own
In addition, although not binding on this Court, the Safety and
Health Review Board of North Carolina has previously addressed the
issue of liability of a general contractor for violations of OSHA
standards to which a subcontractor's employees are exposed:
[A] general contractor's duty under N.C.G.S.
to comply with occupational safety and health standards
or regulations runs to employees of subcontractors on
However, that duty is a reasonable duty and although the
general contractor is responsible for assuring that the
contractors fulfill their obligations for employee safety
that affect the whole construction site, the general
contractor is only liable for those violations it could
reasonably have been expected to prevent or abate by
reason of its supervisory capacity.
Commissioner of Labor v. Romeo Guest Associates, Inc., OSHANC 96-
3513, Slip Op., (RB 1998). Petitioner argues Romeo Guest, like BCF Piping and Rebarco, did
not address the issue at hand. It asserts Romeo Guest relied on
Brennan v. Occupational Safety & Health Rev. Com'n., 513 F.2d 1032
(2d Cir. 1975), where the court was discussing the liability of the
contractor who had created the hazard. Although the contractor in
Occupational Safety & Health Rev. Com'n. had created the hazard, the
2nd Circuit held that to prove a violation of OSHA the Secretary of
Labor need only show that a hazard has been committed and that the
area of the hazard was accessible to the employees of the cited
employer or those of other employers engaged in a common
undertaking. Id. at 1038 (emphasis added). The court further
opined the employer was responsible for creation of a hazard if it
had control over the areas in which the hazards were located and
the duty to maintain those areas. Id. at 1039. Thus, neither
Romeo Guest nor Occupational Safety & Health Rev. Com'n. are false
foundations for the decision of the Safety and Health Review Board.
In addition, in its contract with subcontractor Paige,
petitioner reserved, inter alia, the following rights:
(a) the right to inspect Paige's work from time to
time and to reject portions of the work if not
done in a satisfactory manner, with
satisfactory materials or in a timely fashion
in accordance with the [petitioner's]
(b) the right to schedule Paige's work and the work
of other contractors;
(c) the right to prevent Paige from impeding the
progress of the work by other contractors;
(d) the right to compel Paige to keep the job site
clean of debris at all times and to clean the
job site upon completion of each stage of theproject;
(e) the right to compel Paige to comply with all
safety, health and other laws, ordinances,
rules and regulations applicable to the
(f) the right to withhold payment or terminate the
contract if Paige does not comply with its
terms and conditions, including failure to
comply with OSHA requirements after respondent
tells them that they are in violation.
Section 1926.20(b)(2) of the OSHA regulations provides,
[accident prevention] programs shall provide for frequent and
regular inspections of the job sites, materials, and equipment to
be made by competent persons designated by the employers.
Contractually, petitioner had the right to compel Paige to comply
with all safety regulations, giving petitioner the power to protect
the subcontractor's employees by inspecting the worksite and
compelling the subcontractor to comply with safety regulations. See
Bechtel Power Corporation v. Secretary of Labor, 548 F.2d 248 (8th
Cir. 1977) (holding the construction manager who was contractually
responsible for the construction site's safety program possessed the
power to protect its employees). After reviewing the statute, the
history of the multi-employer doctrine, and the spirit and goals of
OSHA, we conclude the agency's decision was based on a permissible
construction of the statute. Therefore, we hold that N.C. Gen.
Stat. § 95-129 does not limit an employer's responsibility to comply
with occupational health and safety standards to only its own
Next, petitioner contends that OSHA's own regulations,
specifically 29 C.F.R. § 1910.2(a) (1998) and 1910.5(d) (1998),provide that one employer may not be cited for violations of another
employer's infractions. As previously stated, Congress enacted OSHA
to reduce employment related injury and illness. 29 U.S.C. § 651
(1998). For further guidance, Congress provided OSHA with
authority to promulgate occupational safety and health standards by
regulation. Modern Continental v. Occupational Safety, 305 F.3d
43, 49 (1st Cir. 2002). OSHA has issued two different types of
standards: (1) general industry standards, see 29 C.F.R. § 1910
(1998), which act as a default set of standards, and (2) standards
applicable only to certain industries such as the construction
industry. Id.; see 29 C.F.R. § 1926 (1998). These specific
construction industry regulations are applicable to any place of
employment where construction work is performed. Id.; see 29
C.F.R. § 1910.12(a) (1998).
Section 1910.12 establishes § 1926 as the standard for the
construction industry. Although section (a) provides in part that
[e]ach employer shall protect the employment and places of
employment of each of his employees engaged in construction work by
complying with the appropriate standards prescribed in this
paragraph, 29 C.F.R. § 1910.12(a), this sentence, when read in
context, simply requires the contractor to comply with the
appropriate construction industry standards. General industry
standards, such as those in § 1910, essentially fill in the gaps
that are not addressed in § 1926. 29 C.F.R. § 1910.5(c) (1998).
Section 1910.5(d) provides, In the event a standard protects
on its face a class of persons larger than employees, the standardshall be applicable under this part only to employees and their
employment and places of employment. 29 C.F.R. § 1910.5 (1998).
We interpret this as distinguishing between employees on a job site
and passersby or unrelated third persons. Occupational Safety &
Health Rev. Com'n., 513 F.2d at 1038 n.10 (2nd Cir. 1975); IBP, Inc.
v. Herman, 144 F.3d 861, 865 (D.C. Cir. 1998); but see Brennan v.
Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974) (where the
Secretary issued an interpretive statement limiting the effect of
safety regulations to the employment relationship, the court did not
address whether Congress granted the Secretary authority to require
employers in multi-employment worksites to obey safety regulations
for the protection of subcontractors).
Petitioner also contends that 29 C.F.R. § 1926.20(b)(1) limits
the duty to inspect to the employer of the affected employee, i.e.,
in this case, the subcontractor. However, employer is defined in
section 1926.32, the part which applies to the construction
industry, as a contractor or subcontractor within the meaning of
the Act. (emphasis added) Petitioner's argument is without merit.
Petitioner also argues that the review board's decision
upholding the citation contravenes established principles of
statutory construction because (1) Congress revisited OSHA in 1990
and did not revise or repeal OSHA's interpretation or policy, and
(2) the agency's initial interpretation of the Act should be
accorded more weight than a recent contrary interpretation. He also
argues that OSHA's initial interpretation of the Act and its initial
policy on multi-employer worksites are an admission that the Actitself does not impose a duty on a general contractor to detect
subcontractor violations through inspection. However, petitioner
failed to acknowledge the evolution of the multi-employer worksite
doctrine through thirty years of court decisions. Since there has
been no legislation by Congress or the North Carolina General
Assembly overturning these decisions, they are established precedent
which are binding on the courts in their jurisdiction.
We hold that a general contractor's duty under N.C. Gen. Stat.
§ 95-129(2), requiring that [e]ach employer shall comply with
occupational safety and health standards or regulations, extends
to employees of subcontractors on job sites. However, as stated in
Romeo Guest, the duty is a reasonable duty and the general
contractor is only liable for violations that its subcontractor may
create if it could reasonably have been expected to detect the
violation by inspecting the job site. Romeo Guest, OSHANC 96-3513,
In the present case, petitioner was cited for failing to
conduct frequent and regular inspections of the job sites. 29
C.F.R. § 1926.20(b)(2). Petitioner had a duty to inspect the job
site to detect safety violations committed by its own employees and
also those committed by its subcontractors.
 In petitioner's second argument, he contends the multi-
employer citation policy is invalid because it has not been
promulgated as a rule. An administrative rule is not valid unless
adopted in accordance with Article 2A of the AdministrativeProcedure Act. N.C. Gen. Stat. § 150B-18 (2003)
; Dillingham v. N.C.
Dep't of Human Resources
, 132 N.C. App. 704, 710, 513 S.E.2d 823,
827 (1999). N.C. Gen. Stat. § 150B-2 defines a rule as any agency
regulation, standard, or statement of general applicability that
implements or interprets an enactment of the General Assembly or
Congress or a regulation adopted by a federal agency or that
describes the procedure or practice requirements of an agency.
N.C. Gen. Stat. § 150B-2 (2003). Another distinguishing factor of
a rule is that sanctions attach to the violation of a rule. Comr.
of Insurance v. Rate Bureau
, 300 N.C. 381, 411, 269 S.E.2d 547, 568
(1980). However, the term rule does not include:
a. Statements concerning only the internal management
of an agency or group of agencies within the same
principal office or department enumerated in G.S.
143A-11 or 143B-6, including policies and procedures
manuals, if the statement does not directly or
substantially affect the procedural or substantive
rights or duties of a person not employed by the
agency or group of agencies.
. . .
c. Nonbinding interpretative statements within the
delegated authority of an agency that merely define,
interpret, or explain the meaning of a statute or
. . .
g. Statements that set forth criteria or guidelines to
be used by the staff of an agency in performing
audits, investigations, or inspections; in settling
financial disputes or negotiating financial
arrangements; or in the defense, prosecution, or
settlement of cases.
N.C. Gen. Stat. § 150B-2(8a).
Weekley was cited for violation of 29 C.F.R. § 1926.20(b) which
required the employer to provide for frequent and regularinspections of the job sites. In regards to the multi-employer
worksite, the North Carolina Operations Manual (1993) states:
On multi-employer worksites, both construction and
nonconstruction citations normally shall be issued to
employers whose employees are exposed to hazards (the
a. Additionally, the following employers normally shall be
cited, whether or not their own employees are exposed:
(1) The employer who actually creates the
hazard (the creating employer);
(2) The employer who is responsible, by
contract or through actual practice,
for safety and health conditions on
the worksite; i.e., the employer who
has the authority for ensuring that
the hazardous condition is corrected
(the controlling employer);
(3) The employer who has the
responsibility for actually
correcting the hazard (the correcting
b. It must be shown that each employer to be cited has
knowledge of the hazardous condition or could have had
such knowledge with the exercise of reasonable diligence.
The Operations Manual is a nonbinding statement which interprets,
inter alia, the rule requiring inspections. In requiring an
employer to inspect the worksite regularly, the Operations Manual
merely guides the inspectors regarding who can be cited for a
violation. Furthermore, the multi-employer policy as stated in the
Operations Manual does not impose sanctions for failure to comply.
Sanctions are imposed for violation of the rule, i.e., failure to
inspect, not for violation of the policy which only describes who
can be cited. Therefore, the multi-employer policy, an interpretive
statement established in the Operations Manual, falls within theexception created by N.C. Gen. Stat. § 150B-(8a)(c) and does not
have to be promulgated as a rule.
Petitioner relies on Dillingham, where the Department of Social
Services' Aged, Blind and Disabled Medicaid Manual established a
policy that when an applicant transferred assets at less than fair
market value in order to qualify for Medicaid, the applicant was
required to present written evidence as to the reason for the
transfer. Dillingham, 132 N.C. App. at 711, 513 S.E.2d at 823. The
Court determined this was a rule under the APA because there was
neither statutory nor regulatory authority for the requirement that
a Medicaid applicant present written evidence to rebut the
presumption that a transfer of assets for less than fair market
value was for the purpose of establishing Medicaid eligibility.
Id. at 711, 513 S.E.2d 823, 827-828 (emphasis original). Here,
however, there is statutory authority granted to the Department of
Labor to protect the health and safety of all employees in North
Carolina. N.C. Gen. Stat. § 95-126(b)(2)(m) (2003). The Operations
Manual is merely an interpretive guideline as to who can be cited
and does not require additional evidence or a more stringent
standard of proof.
Petitioner argues that even if the multi-employer citation
policy was not required to be promulgated as a rule initially, the
revision of that policy in the Operations Manual requires that it
be subject to formal rule-making procedures. N.C. Gen. Stat. §
150B-2(8a)(c) provides that a rule does not include [n]onbinding
interpretive statements within the delegated authority of an agencythat merely define, interpret, or explain the meaning of a statute
or rule. See Okale v. N.C. Dep't. of Health & Human Services, 153
N.C. App. 475, 478-479, 570 S.E.2d 741, 743 (2002) (holding the
North Carolina Family and Children's Medicaid Manual is a
nonbinding statement from the agency which defines, interprets and
explains the statutes and rules for Medicaid and does not require
the procedures of formal rule-making); Ford v. State of North
Carolina, 115 N.C. App. 556, 445 S.E.2d 425 (1994) (a memorandum
setting forth guidelines to be followed when investigating and
prosecuting violations of state law fell within the meaning of N.C.
Gen. Stat. § 150B-2(8a)(c) and (g) and therefore was not subject to
formal rule-making). Therefore, contrary to petitioner's argument,
the Operations Manual is a non-binding interpretive statement, not
a rule requiring formal rule-making procedures. Accordingly, the
exception which requires rule-making if the rights and duties of the
employer are affected does not apply. We hold that the Operations
Manual merely established guidelines that directed OSHA inspectors
as to what parties could be cited for violation of a rule and thus
did not require formal rule-making.
Petitioner's third argument, that the Safety and Health Review
Board did not address the issues of legislative intent or OSHA's own
regulations precluding multi-employer liability, was not assigned
as error. Therefore, pursuant to the Rules of Appellant Procedure,
we decline to address the argument further. N.C. R. App. P. 10(a)
(2004). In addition, petitioner's second and third assignments oferror were not brought forward in its brief and are therefore deemed
abandoned. N.C. R. App. P. 28(a) (2004).
We affirm the decision of the Superior Court.
Judges TIMMONS-GOODSON and GEER concur.
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