By Brent I. Clark and Meagan Newman

In a recent decision, affirming Administrative Law Judge Phillips’ order vacating a general duty clause citation, the Review Commission held that manufacturer instructions–even where coupled with an industry standard–were insufficient proof of hazard recognition as needed to sustain a general duty clause violation.  The Review Commission focused on the issue of industry recognition and the lack of any specific safety warning or stated link between noncompliance with the instruction (or standard) and a safety hazard.  In a nutshell, the Commission was looking for a clear statement or assertion of a “safety warning” and did not find one.

OSHA inspected the company’s worksite in Naples, Florida, after four employees were injured in a pipe explosion.  Following the inspection, OSHA issued a serious citation, alleging that K.E.R. Enterprises d/b/a Armadillo Underground (Armadillo) exposed its employees to the hazard of being struck by pipe fragments in violation of the OSH Act’s general duty clause.

The Secretary argued that Armadillo had exposed its employees to a recognized hazard—identified in the citation as a struck-by hazard—by failing to follow the manufacturer’s instructions. The Secretary proposed that Armadillo could have abated the hazard by installing a restraining gland in accordance with these instructions, as well as the ANSI-approved, American Water Works Association standard C-111 (AWWA standard), entitled “Rubber-Gasket Joints for Ductile Iron Pressure Pipe and Fittings.”). According to the Secretary, the manufacturer’s instructions and the AWWA standard both required Armadillo to depressurize and reassemble the pipe to fix the water leak rather than risk overtightening the T-bolts while the pipe was pressurized.

In affirming Judge Philip’s order, the Commission recognized that manufacturers’ instructions and voluntary industry standards that contain explicit safety warnings regarding compliance may be probative evidence in establishing a general duty clause violation. See Young Sales Corp., 7 BNA OSHC 1297, 1299-1300, 1979 CCH OSHD ¶ 23,768, p. 28,821 (No. 8184, 1979) (Cottine, concurring) (distinguishing between manufacturer’s explicit safety warnings about the product and manufacturer’s directions for the product’s use, the latter of which does not establish a recognized hazard unless it implicates safety); Oberdorfer Indus., 20 BNA OSHC at 1325-27, 2002-2004 CCH OSHD at p. 51,643 (vacating general duty clause citation where series of ANSI standards and a manufacturer’s Parts List did not establish that using a hook without a latch on a chain hoist is hazardous). However, the Commission distinguished between those cases in which explicit safety warnings are present and the facts as presented in this case.   Because these warnings were not present, and because the company’s witnesses testified credibly regarding the standard practices of their industry, both Judge Phillips and the Review Commission found insufficient evidence to sustain the alleged general duty clause violation.

If you are defending against an alleged general duty clause violation, this case may be useful in that it draws a real, and important, distinction between manufacturers’ instructions (or recommendations) and explicit safety warnings.  It also supports the concept that safety warnings alone may not be sufficient to establish a recognized hazard.  Though they are probative, they can be countered with other evidence, such as standard practice.