The matter of Secretary of Labor v. Henkels & McCoy, Inc. demonstrates how companies must heed their equipment’s manuals and be aware of the scope and extent of services provided to them from third parties to ensure proper equipment maintenance. This matter arose from a fatal workplace accident involving a crew leader who was operating an improperly maintained digger derrick. The crew leader was an employee of Henkels & McCoy, Inc. (H&M) which performs general utility maintenance. The underlying incident occurred on May 2, 2018, in Jacksonville, Florida where the crew leader and an apprentice were assigned to remove a utility pole when he was fatally injured.
H&M utilizes digger derricks for utility pole installation and removal. The digger derrick has a flatbed equipped with a boom and operator’s chair that sits atop a pedestal, which is attached to the truck’s frame and chassis. The digger derrick has eighteen rotation bearing mounting bolts that connect the gear ring, on which the operator’s chair and boom sit, to the flange atop the pedestal. The digger derrick’s manufacturer in their manual instructs owners to conduct annual torque testing with a calibrated torque wrench. A warning decal is also prominently placed on the pedestal repeating this instruction and warning that failure to inspect and properly torque the rotation bearing mounting bolts can cause structural failure and lead to death or serious injury.
H&M mechanics used to perform inspections of the company’s digger derricks that also included torque testing. However, in 2007, H&M entered into an agreement with third-party contractor, Diversified Inspections/ITL Inc. (“Diversified”) to provide semi-annual inspection services on the digger derricks. From 2011 to 2016, the companies further engaged in agreements setting forth the scope of Diversified’s inspections. Upon inspection, Diversified would complete a report noting any issues with the equipment and forward to H&M. In February 2018, Diversified’s inspection reports began including a disclaimer that it was not performing torque testing.
On the incident day, the crew leader was operating one of H&M’s digger derricks from the operator’s chair, while the apprentice was working on the ground when they both heard a “creak”. The crew leader stopped operating the digger derrick. Upon investigation, the apprentice found that one of the bolts had “sheared off” and was on the bed of the truck. The apprentice proceeded to check the other bolts and then informed the crew leader that they were tight. Upon resumption of work, the apprentice heard sounds and jumped off the truck and thereafter saw the boom falling and the crew leader being ejected from the operator’s chair to the pavement below. He would tragically succumb to his injuries.
OSHA investigated the incident and issued a citation alleging a serious violation of the Occupational Safety and Health Act’s general duty clause for exposing employee to struck-by and crushing hazards by failing to properly maintain the digger derrick’s bolts. Although, an Administrative Law Judge vacated the citation, the Administrative Law Commission reversed the decision, affirmed the citation and assessed a penalty of $12,934.
To prove a violation of the general duty clause, the Secretary (of Labor) must establish the following four elements: (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; and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.
As a preliminary matter, the Commission found that the manufacturer’s recall notice as to the digger derrick’s bolts had no bearing on the Secretary’s allegation in the citation as to H&M’s lack of maintenance of the digger derrick’s bolts to ensure that they are properly torqued. Therefore, it proceeded to analyze each element of the alleged violation with respect to the conditions as set forth in the citation, not in terms of the incident or design defect.
The Commission found that a hazard existed as indicated by the existence of the manufacturer’s decal and as per the testimony of the Secretary’s expert who opined that failing to torque test the bolts could result in fatigue failure, which could cause the bolts to “back out and fall out” from the connection and eventually cause the digger derrick to collapse. The existence of the manufacturer’s decal prominently displayed on the equipment and its inclusion in the manual was sufficient to establish industry recognition of the hazard. The Secretary further alleged that there existed a feasible method for abatement of the hazard by torque testing the bolts which as per their expert would uncover “worn out or deformed bolts” for replacement in a safe and controlled environment given that the manual called for replacement of all bolts if one breaks during testing.
The Commission also found that H&M had constructive knowledge of the hazard since H&M could have known about the condition through reasonable diligence. The Secretary argued that H&M failed to exercise reasonable diligence as they never required Diversified to torque test the bolts during inspection nor did they negotiate a price for that service. Further, the 2016 agreement between the companies did not include the service and in the months leading to this incident, Diversified’s reports specifically stated they were not performing such testing. Although, H&M argued that the torque testing disclaimer was self-contradictory because these reports stated that the inspections were performed in accordance with ANSI and OSHA standards, which would have included torque testing, the Commission found that although “the evidence relating to Diversified’s relationship with H&M and torque testing is not a model of clarity” it could have known that Diversified was not performing torque testing with the exercise of reasonable diligence. H&M had an obligation to determine how the torque testing was to be done for the safety of its employees and in fact had expertise in this area since it torque tested the digger derrick bolts prior to retaining Diversified while H&M’s mechanic continued to exercise day-to-day control over the machines.