By: Thomas H. Welby Published: June 2017

ALJ Vacates "General Duty Clause" Citation Following Incident Involving Skid-Steer

In addition to a host of standards that cover specific hazard, Section 5(a)(1) of the OSH Act, known as the “General Duty Clause,” requires employers to furnish employment and a place of employment free from recognized hazards causing, or likely to cause, death or serious physical harm.

This provision is often described as a “catch-all.” Many believe it to be sufficiently broad as to make it an OSHA violation whenever an employee is injured and the compliance officer detects a hazardous condition.

The General Duty Clause, although broad, is not quite that broad, as demonstrated by a recent case, Secretary v. Capitol Concrete Contractors, Inc., in which an Administrative Law Judge vacated a General Duty Clause citation, based on the legal insufficiency of the Secretary’s proof at the trial.

A Capitol Concrete employee suffered a broken wrist, while training others in the use of a skid-steer loader.  Sometimes referred to as a “skid-steer,” this piece of equipment is generally described as a small, agile front-loader with left-side wheels and right-side wheels operable at different speeds from one another.  The machine turns by skidding, or dragging its fixed-orientation wheels across the ground.

Unlike a conventional front loader, the lift arms in a “skid-steer” are alongside the operator, with the pivot points behind the operator’s shoulders.  Because of this proximity between the operator and the moving booms, most modern skid loaders have fully enclosed cabs, and other features to protect the operator.  The skid loader is capable of zero-radius turning, making it especially useful where a compact, agile loader is needed.

Following a report that one of the Respondent’s employees had been admitted to a hospital following a work-related injury, OSHA conducted an inspection, and cited the employer for a “Serious” violation of the General Duty Clause (with a proposed penalty of $10,800).

The facts of the occurrence were that, during skid-steer operator training, the trainee lifted the bucket of the skid-steer into an elevated position.  This was unusual, because the skid-steer had nothing in its bucket at the time.

The trainer walked over the skid-steer, reached into the cab while the bucket was still in a raised position, and tried to point out the controls.  As he did so, the bucket arms unexpectedly came down, and fractured the trainer’s wrist.

The violation of the General Duty Clause alleged was that, during operator training for the new skid-steer, the trainer “would routinely approach the operational loader at the construction jobsite and was exposed to a struck-by hazard from the equipment.”

The employer contested the citation, and the matter was brought to trial before an ALJ.  The Secretary’s case, which the ALJ characterized as “perfunctory,” consisted solely of testimony by the compliance officer.  The employer cross-examined the CO, and introduced a single exhibit into evidence, but called no witnesses of its own.

The employer having rested without calling any witnesses, the ALJ’s task was simply to determine whether the complainant’s evidence was legally sufficient to meet his burden of proof.  The ALJ determined that it was not.

The General Duty Clause requires the Secretary to show that (1) a condition or activity in the workplace presented a hazard; (2) the employer, or its industry, recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) a feasible means existed to eliminate or materially reduce the hazard.

As with any OSHA violation, a violation under the General Duty Clause requires the Secretary to establish also, by a preponderance of the evidence, that (1) the standard applies to the facts; (2) the employer failed to comply with the terms of the standard; (3) employees were exposed to the hazard covered by the standard; and (4) the employer had actual or constructive knowledge of the violation (i.e., the employer knew or, with the exercise of reasonable diligence, could have known of the violative condition).

In Capitol Concrete, the ALJ noted that, while the trainer had been injured while reaching inside the skid-steer cab, the General Duty Clause violation alleged was more general:  that he had approached and operational skid-steer during the training process.  “As far as the Court can tell,” the ALJ observed, “this activity was characterized as hazardous because the trainer could presumably be struck by the skid-steer loader or its implements.”

While presumably, the ALJ remarked, the trainer would have avoided breaking his wrist, had he not approached the running skid-steer, extrapolating from the avoidance of this particular injury to a general prohibition against “approaching” a running skid-steer at all requireds more evidence than that the particular individual was injured when he reached into the cab.  The Commision has held that “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.”  In the case before her, the ALJ found, there was little persuasive evidence with respect to the purported hazard.

The Secretary sought to rely upon a NIOSH Alert,” “Preventing Injuries and Deaths from Steer-Skid Loaders,” selected portions of the skid-steer’s operation manual, and warning labels affixed to the skid-steer.

While the NIOSH Alert cautions about operating or working near a skid-steer loader, the same recognizes that if the skid-steer is to be used at all, employees will inevitably be operating, or working in proximity to it.  And, while the NIOSH Alert is explicit in describing safe operating procedures and the proper method to enter and exit the cab of a skid-steer, the Court found it did not clarify the Secretary’s allegation that approaching a running skid-steer during training is hazardous.

The ALJ found, further, that the additional documents introduced by the Secretary all targeted hazards associated with the loader arms during entry, exit, while performing maintenance, or during regular work.  Noe of them contained explicit warnings about approaching the cab of a skid-steer.

While, obviously, approaching an operational skid-steer may be hazardous when the bucket is raised, or when it is actually “in operation,” those were not situations addressed by the citation item, which was directed to approaching an “operational” (i.e., capable of being operated) machine during training.

Due to the failure to show safety warnings addressed to the alleged hazasrd, or evidence, such as prior injuries or citations (as would suggest that the Respondent was specifically aware of a hazard) the ALJ found that the Secretary had failed to show a recognized hazard.  Indeed, the CO testified that he was unaware of any industry standard stating how close to an operational skid-steer an employee may safely stand.

The ALJ found that the Secretary had failed to prove another necessary element of a General Duty Clause violation — a feasible means to abate the hazard.  The only discussion of preventative conduct at trial was the CO’s testimony that a brace bar would have prevented the injury suffered by the trainer, but that discussion (the ALJ found) did not address the alleged hazard, which was the positioning of the trainer relative to the cab during training.

Finally, the ALJ found that the Secretary had failed to prove employer knowledge of the violation: it did not show that the trainer’s conduct was foreseeable, and there was no competent, credible evidence that either of the other supervisors at the scene were aware of how the trainer was carrying out his task, or that the employer’s training procedures required him to act as he did.

Capitol Concrete, therefore is a good example of how the ALJs generally do require the Secretary to prove the elements of a General Duty Clause violation, and do not reflexively apply it whenever there is an injury based on a perceived hazard that does not have its own OSHA standard.

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