Henkels & McCoy, Inc. performs utility maintenance using digger derricks, heavy equipment used to drill holes and lift utility poles. On May 2, 2018, a crew leader operating a digger derrick was fatally injured when the boom detached from the pedestal and fell, ejecting him from the chair. The accident occurred after a bolt sheared off the pedestal. The Secretary of Labor investigated and cited Henkels for a serious violation of the Occupational Safety and Health Act's general duty clause, alleging the company failed to ensure the rotation bearing bolts were properly maintained. The Occupational Safety and Health Review Commission upheld the citation, finding that the hazard was recognized, feasible to abate through torque testing, and that Henkels had constructive knowledge of the violation. Henkels petitioned the Eleventh Circuit for review, arguing the Commission's decision was arbitrary and capricious.
The Eleventh Circuit applied a deferential standard of review, setting aside the Commission's decision only if it was arbitrary, capricious, or unsupported by substantial evidence. The court analyzed the four elements required to prove a general duty clause violation: exposure to a hazard, recognition of the hazard, feasible abatement, and serious violation status. First, regarding the hazard, the court rejected Henkels' argument that a maintenance practice is not a physical condition. The court clarified that the phrase 'condition, practice, means, method, operation or process' is equated with 'hazard.' The hazard was defined as the risk of being struck or crushed if the boom detached due to improper maintenance. The court found substantial evidence supported this, citing the manufacturer's warning decals and expert testimony that failure to torque test could lead to fatigue failure. Second, the court addressed whether the hazard was recognized. The Commission found the hazard was recognized because the manufacturer's manual and decals explicitly warned that failure to inspect and torque the bolts could cause structural failure and death. The court rejected Henkels' reading of the warning as requiring both inspection and torquing failures to be present, noting that the warning applies if either requirement is not met. Third, the court examined whether the hazard could be feasibly abated. The Commission found that following the manufacturer's instructions to torque test the bolts would have materially reduced the hazard. Henkels argued that a design defect meant torque testing would not have prevented the accident. The court rejected this, explaining that the general duty clause focuses on whether the abatement measure reduces the likelihood of the generic hazard, not whether it would have prevented this specific accident. Expert testimony confirmed that torque testing reduces the risk of bolt failure. Finally, the court addressed whether the violation was serious, which requires the employer to have known or could have known of the violation with reasonable diligence. The court found Henkels had constructive knowledge. Although Henkels contracted with Diversified Inspections for maintenance, the scope-of-work agreements explicitly stated that Diversified would not perform torque testing and that this responsibility remained with Henkels. Furthermore, inspection reports issued to Henkels included disclaimers stating that torque testing was not performed and was the customer's responsibility. The court held that Henkels could not reasonably rely on the contractor because Henkels retained the expertise and control to perform the testing itself.
The citation and $12,934 penalty assessed against Henkels & McCoy remain in effect. The decision reinforces that employers cannot outsource safety compliance responsibilities to third-party contractors if the employer retains the expertise and control to perform the necessary safety checks. It clarifies that the general duty clause applies to maintenance practices and that abatement measures are evaluated based on their ability to reduce the risk of a hazard, not just their ability to prevent a specific past accident.