Gary Visscher, Esq.
Commission Finds Failure to Inspect Bolts Is a Hazard under General Duty Clause
The elements of a general duty clause violation are well established: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; (4) a feasible and effective means existed to eliminate or materially reduce the hazard; (5) the employer knew or could have known with the exercise of reasonable diligence of the hazardous condition.
A recent Review Commission decision addressed the first element: what is a hazard for purposes of an alleged general duty clause violation? In many cases, the alleged hazard is the condition or activity that caused or was a factor in an accident or injury.
But not always. In Henkels & McCoy (July 21, 2022), the Commission said, “it is the hazard, not the specific incident that resulted in injury or might have resulted in injury, that is the relevant consideration in determining the existence of a recognized hazard.” But may the hazard be the failure to follow a safety procedure, regardless of whether there is evidence that the failure resulted in a physical defect?
The case resulted from a fatal injury to a crew leader who was operating a digger derrick to remove a utility pole. Quoting the Commission decision, “When the incident occurred, the crew leader was seated in the digger derrick’s operator’s chair and the apprentice was working from the ground. After they both heard a ‘creak,’ the crew leader immediately stopped operating the digger derrick and instructed the apprentice to investigate. He discovered that one of the flange’s eighteen bolts had ‘sheared’ off and was on the bed of the truck. The apprentice then checked the other bolts and informed the crew leader they were tight. When the crew leader resumed moving the boom, the apprentice again heard sounds and jumped off the truck. He then turned, at which point he saw the boom falling and the crew leader being ejected from the operator’s chair to the pavement below.”
What caused the boom to fall was not established, at least not in the context of the OSHA case. OSHA cited Henkels & McCoy (H & M) under the general duty clause, alleging that the company had failed to properly maintain the digger derrick bolts by not testing the bolts to ensure that the bolts were properly torqued. However, there was no evidence that that the bolts had come loose, or that not torque-testing the bolts was a factor in the bolts shearing. Complicating matters, several months after the accident, the manufacturer of the digger derrick, Altec, issued a recall notice because of a discovered design defect in the bolts.
The administrative law judge who conducted a hearing in the case determined that the hazard was the design defect, and since the design defect was not known or “recognized” at the time of the accident, he vacated the citation.
On review, the Commission said the ALJ had erred in redefining the hazard as the design defect. The Commission said that the design defect and the cause of the fatal accident were not relevant to the general duty clause violation alleged by OSHA, which alleged that the violation was H & M’s failure to check the bolts and ensure they were properly torqued.
The Commission credited testimony by the Secretary’s expert, who testified that not having the bolts properly torqued “could” cause the bolts to ‘back out and fall out’ of the flange-to-gear-ring connection and eventually cause the digger derrick to collapse.” The Commission also noted that the manufacturer, Alltec, had placed a warning decal on the digger derrick, warning of the need to inspect and properly torque the mounting bolts.
Together, the Commission said. this evidence showed that not torque-testing the bolts increased the risk of harm, and therefore met the definition of a “hazard,” despite there being no evidence that the bolts were in fact loose at the time of the accident.
Having found that H & M’s failure to torque test the bolts constituted a hazard, the Commission found that the “manufacturer’s decal, which plainly warns that failure to torque the bolts properly can cause a ‘structural failure’ … constitutes industry recognition.” The Commission also found that the remaining elements of a general duty violation were satisfied.
The Commission also denied H & M’s affirmative defenses. First, H & M raised an affirmative defense of “reasonable reliance” on a specialty contractor, Diversified Inspections, which H & M hired to provide semi-annual inspections of H & M’s digger derricks. The Commission found that Diversified’s inspection reports indicated that its inspections did not include torque testing, and H & M’s own mechanics exercised day-to-day control over the machines.
H & M also raised an affirmative defense of unpreventable employee misconduct. The Commission said that, in raising the defense, “the company focuses on the cause of the incident” rather than on the basis of the violation, the failure to torque test the bolts. In addition, the Commission noted, H & M had provided no evidence establishing that it monitored compliance and enforced work rules relevant to the violation.