In addition to its many specific standards for employee safety and health, OSHA also has what’s known as its “General Duty Clause.” It’s often described as a “catch-all,” covering any and all unsafe conditions for which there is no specific standard. It’s not quite that expansive, but you should be aware of it, and its elements.
The recent decision in Secretary v. Jesse Remodeling, LLC illustrates both the requisites for a violation of the General Duty Clause, and for a “Willful” OSHA violation. In that case, a masonry contractor was erecting a brick and block foundation for a fast-food restaurant in Savannah. OSHA’s Assistant Area Director, who was buying lunch at a restaurant across the street, observed employees on a scaffold platform lacking a guardrail system at its open sides. He summoned a Compliance Officer by telephone, who came to the site and initiated an inspection.
In addition to several scaffolding and fall hazard violations, the Compliance Officer observed employees on the scaffold platform pouring concrete from a “Grout Hog” into cells in the block wall. The Grout Hog was being lifted above the platform by a forklift operated by Jesse Gamble, the employer’s principal and “competent person.” The Compliance Officer observed that the forklift lacked skid pins to secure the Grout Hog on the forks, and that Mr. Gamble was not wearing a seatbelt.
The CO also observed that the scaffold platform, 13 feet above ground, lacked guardrails at its open sides and ends. As employees on the platform were filling the cells with concrete, two employees, standing on the scaffold’s cross-braces about seven feet above the ground, were cleaning concrete droppings from the wall below the platform. After the filling of the cells was complete, the CO saw the employees climb down from the scaffold using the cross-braces and uprights.
According to Mr. Gamble, his employees had started to dismantle the scaffold on the back wall when a truck, delivering an additional supply of concrete, arrived, enabling the crew to fill the cells in four blocks that remained to be filled. Mr. Gamble testified that, as the “competent person,” he instructed the employees to fill the cells from the platform, while he elevated the Grout Hog using the forklift. The requirements to have a guardrail system on a scaffold do not apply, while the scaffold is in the process of being dismantled. Mr. Gamble claimed that, in his opinion, there was a greater risk of falling while re-installing the guardrails than while filling the cells, which he estimated would only take about fifteen minutes.
OSHA’s Area Office issued a five-item citation, with three “Serious” items and one “Willful” item (no guardrail system on the scaffold platform). The Grout Hog violation was charged under the General Duty Clause.
The employer contested the violations and penalties, its primary arguments being that the scaffold requirements did not apply, because the scaffold was in the process of being dismantled; that the skid pins were inadequate to secure the Grout Hog to the forklift; and that Mr. Gamble’s skill, in maneuvering forklift, was adequate to prevent the Grout Hog from slipping off the forks. Following trial, the Administrative Law Judge vacated the seatbelt violation item, but affirmed all of the rest (and related penalties).
A violation of OSHA’S General Duty Clause has four elements (in addition to employee exposure, and actual or constructive knowledge on the part of the employer). The first is a “hazard,” defined as conditions or practices deemed unsafe, over which an employer can reasonably be expected to exercise control. The second is that the hazard be “recognized,” that is, known to the particular employer, or generally known in the industry. The third is that the hazard be likely to cause serious injury or death. The fourth is that the Secretary must identify a means of abatement, sufficient to eliminate, or materially reduce, the hazard.
The employer’s use of the Grout Hog without skid pins was easily found to constitute a “hazard.” The Grout Hog weighs 1,436 lbs. empty, and up to 4,526 lbs. loaded. The skid pins are provided by the manufacturer, and attached to the Grout Hog, to prevent it from sliding off the forks, injuring employees, and damaging equipment. Elevated above a scaffold platform, clearly the Grout Hog, if it slipped off the forks, would expose the employees working on the platform to struck-by, crushed-by, and fall hazards.
That the hazard here was “recognized,” the ALJ found, was plain from the warning label on the Grout Hog’s fork pockets, and instructions in the manual always to use skid pins and linch pins or safety chains, whenever the Grout Hog is on the lift forks. The likelihood of causing serious injury or death was obvious as well, as the Grout Hog, as used by Jesse Remodeling, was estimated to weigh between 3,000 and 4,000 lbs., and presented a clear danger, were it to slip off the forks, of causing serious injury or death.
The final element — the feasibility of abatement — was made out by showing that, the installation of the Grout Hog on the forklift using skid pins or chains, in accordance with the manufacturer’s instructions, would eliminate or reduce the danger of it slipping off the forklift.
The statement of the employer’s principal, Jesse Gamble, acknowledged that he knew the skid pins provided to secure the Grout Hog on the forklift were not in use, although he attributed this to an “oversight.” The ALJ was not convinced by Mr. Gamble’s argument that his skill in maneuvering the forklift mitigated the risk of the Grout Hog slipping off. The General Duty Clause violation, and the accompanying penalty, were therefore affirmed.
The ALJ did vacate the seatbelt violation, essentially because it was charged under the wrong standard. The two items for working from, and descending by use of, the scaffold’s cross-braces, were affirmed. The employer argued unsuccessfully that there was no violation, because the exception where employees are erecting or dismantling the scaffold applies only where the employees are “solely” performing one of those tasks. Jesse Remodeling’s employees apparently had started to dismantle the scaffold, but interrupted that effort, and went up to pour more concrete, when the concrete truck arrived. In addition, employees were at work cleaning dripped concrete from the walls. In affirming the item for descending from the platform using the cross-braces, the ALJ noted that there was a ladder on the scaffold, but the employees had not used it.
Finally — and most importantly, from the viewpoint of the employer — the lack of a guardrail system was found to be a “Willful” violation. The “dismantling” exception was found, from testimony and photographs, not to apply. Mr. Gamble acknowledged that the guardrail could have been re-installed before filling the last four cells, and indeed that he had instructed his employees, upon the arrival of the concrete truck, to go back up and fill the remaining cells. Gamble had been a masonry contractor for 26 years, and a “competent person” for 15 years. His company had previously been cited for a similar violation, and had unsuccessfully asserted the “dismantling” exception in contesting that violation.
An employee (himself an OSHA “competent person”) testified that “the scaffold wasn’t ready for filling grout . . . [Gamble] knew that the scaffold wasn’t complete but he told me to do it anyway . . . even though we didn’t have the scaffold properly erected.” The ALJ found that Gamble, concededly with knowledge of the guardrail requirements, had simply elected to ignore them. This, the ALJ found met the “willfulness” standard of showing an “intentional, knowing or voluntary disregard for the requirements of the Act, or . . . plain indifference to employee safety.”
Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Geoffrey S. Pope, Esq., counsel to the firm, assists in the preparation of this series. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.