United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 18-1864

HENKELS & MCCOY, INC.,

Respondent.

ON BRIEFS:

Scott Glabman, Senior Appellate Attorney; Brian A. Broecker, Senior Attorney; Heather R.

Phillips, Counsel for Appellate Litigation; Edmund C. Baird, Associate Solicitor of Labor for

Occupational Safety and Health; Elena S. Goldstein, Deputy Solicitor of Labor; U.S. Department

of Labor, Washington, D.C.

For the Complainant

Carol A. Field, Esq.; Morgan, Lewis & Bockius LLP, Miami, FL

For the Respondent

DECISION

Before: ATTWOOD, Chairman; LAIHOW, Commissioner.

BY THE COMMISSION:

Henkels & McCoy, Inc., is a utility construction, design, and engineering contractor

headquartered in Blue Bell, Pennsylvania. On May 2, 2018, an H&M employee was fatally

injured while using a digger derrick to remove a utility pole. Following the incident, the

Occupational Safety and Health Administration conducted an inspection and issued H&M a

citation alleging a serious violation of the Occupational Safety and Health Act’s general duty
clause, 29 U.S.C. § 654(a)(1),1

 for exposing employees to struck-by and crushing hazards by

failing to properly maintain the digger derrick’s bolts.2

Administrative Law Judge John B. Gatto vacated the citation. For the following reasons,

we reverse the judge, affirm the citation, and assess the proposed penalty of $12,934.

BACKGROUND

On the day of the incident, two H&M employees, a crew leader and an apprentice, were

using an Altec DC47 series digger derrick to remove a utility pole in Jacksonville, Florida. The

digger derrick is about the size of a dump truck and its flatbed is outfitted with a boom and an

operator’s chair atop a pedestal, which is attached to the truck’s subframe and chassis. Eighteen

rotation bearing mounting bolts3 connect the gear ring, upon which the operator’s chair and

boom sit, to the flange atop the pedestal. 

Altec’s maintenance and parts manual instructs owners of its digger derricks to conduct

annual torque tests of these bolts with a calibrated torque wrench.4 Altec also placed a warning

decal on the digger derrick pedestal, which states: “WARNING – FAILURE TO INSPECT AND

PROPERLY TORQUE THE ROTATION BEARING MOUNTING BOLTS CAN CAUSE

STRUCTURAL FAILURE. DEATH OR SERIOUS INJURY COULD RESULT. Keep

capscrews properly torqued to prevent fastener fatigue.”5 (capitalization in original.)

1

 The general duty clause provides that “[e]ach employer . . . shall furnish to each of his

employees employment and a place of employment which are free from recognized hazards that

are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. §

654(a)(1).

2

 OSHA initially alleged that this failure extended to three other digger derricks housed in

H&M’s Jacksonville, Florida, fleet maintenance facility, but they were dismissed from the case

when an unopposed motion made by H&M at the hearing was granted. The citation also alleged

a violation of 29 C.F.R. § 1926.28(a) for failing to ensure that employees were wearing

appropriate personal protective equipment, but this item was withdrawn prior to the hearing. 

3

 We refer to these as bolts, although throughout the record they are sometimes referred to as

fasteners or capscrews. 

4

 As explained by the Secretary’s expert at the hearing, torque is a measurement of a twisting

force and a torque wrench, unlike other wrenches, measures the tightness of bolts and can be set

to a manufacturer’s torque specification. 

5

 This decal also appears in Altec’s maintenance and parts manual in a section titled “Accident

Prevention Signs.” 

2
Prior to 2007, H&M mechanics performed inspections of the company’s fleet of digger

derricks, which included torque testing. That year, H&M entered into a “handshake” agreement

with a third-party contractor, Diversified Inspections/ITL Inc., to provide inspection services

semi-annually for H&M’s digger derricks in the company’s central and west regions. 6 From

2011 to 2016, the two companies entered into a series of agreements and executed documents

setting forth the scope of Diversified’s digger derrick inspections for H&M. After completing a

digger derrick inspection, the Diversified inspector would fill out a report that noted any

problems or issues found with the equipment. That report would then be sent to H&M or

otherwise made available for H&M managers to review. Beginning in February 2018,

Diversified’s inspection reports included a disclaimer stating that the company was not

performing torque testing. The parties do not dispute that neither H&M nor Diversified was

torque testing the digger derrick bolts at the time of the incident and OSHA’s inspection. 

When the incident occurred, the crew leader was seated in the digger derrick’s operator’s

chair and the apprentice was working from the ground. After they both heard a “creak,” the crew

leader immediately stopped operating the digger derrick and instructed the apprentice to

investigate. He discovered that one of the flange’s eighteen bolts had “sheared” off and was on

the bed of the truck. The apprentice then checked the other bolts and informed the crew leader

they were tight.7 When the crew leader resumed moving the boom, the apprentice again heard

sounds and jumped off the truck. He then turned, at which point he saw the boom falling and the

crew leader being ejected from the operator’s chair to the pavement below. The crew leader later

died from his injuries. 

DISCUSSION

To prove a violation of the general duty clause, the Secretary must establish 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 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.

Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). The Secretary must also

show that the employer knew or, with the exercise of reasonable diligence, could have known of

6

 H&M’s Jacksonville maintenance facility is located in its central region. Another company,

Terex, was conducting digger derrick inspections for H&M in its eastern region. 

7

 It is not clear from the record how the apprentice checked these bolts—e.g., visually or with a

wrench.

3
the hazardous condition. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-0469,

1992). 

In the citation, the Secretary alleges that H&M violated the general duty clause by

exposing its employees to hazards resulting from the company’s failure to properly maintain the

digger derrick bolts in accordance with Altec’s maintenance and parts manual. In vacating the

citation, the judge redefined the alleged hazard as a design defect in the bolts at issue, which

Altec announced in a recall notice,8 and not, as the citation alleged, H&M’s failure to properly

maintain these bolts. The judge relied on this new hazard definition throughout most of his

analysis, concluding that the Secretary failed to establish that (1) the improperly maintained bolts

posed a significant risk of harm; (2) H&M or its industry was aware of the design defect; and (3)

torque testing in accordance with the manual would effectively reduce any risk of injury

resulting from the defective bolts.9 On review, the Secretary challenges all of the judge’s

findings and maintains that the record establishes H&M’s knowledge of the violative conditions.

In response, H&M defends the judge’s findings and argues that even if a violation has been

established, the company reasonably relied on Diversified to torque test the bolts, and, in any

event, the incident was the result of unpreventable employee misconduct.

As a threshold matter, we find that the judge plainly erred by redefining the alleged

hazard in terms of what may have caused the fatal incident. See Arcadian Corp., 20 BNA OSHC

at 2008 (“[I]t 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.”

(citing Kelly Springfield Tire Co., 10 BNA OSHC 1970, 1973 (No. 78-4555, 1982))). Here, the

citation properly defined the alleged violation in terms of “conditions or practices over which”

the company had control—the maintenance of the digger derrick’s bolts—and “apprised [H&M]

of its obligations”—to ensure they are properly torqued. Davey Tree Expert Co., 11 BNA OSHC

1898, 1899 (No. 77-2350, 1984). Contrary to the judge’s analysis, Altec’s issuance of a recall

notice for the digger derrick’s bolts has no bearing on the Secretary’s allegation in the citation.

Therefore, we analyze each element of the alleged violation with respect to the conditions set

forth in the citation, not in terms of the incident or the design defect.

8

 This recall notice, issued on October 26, 2018, stated: “These [digger derrick] units have

rotation bearing fasteners that can break. The broken rotation bearing fasteners can possibly

cause uncontrolled movement resulting in death or serious injury.” 

9

 The judge did not address whether H&M had knowledge of the hazardous condition.

4
I. Hazard

“To prove that a condition presents a hazard under the general duty clause, the Secretary

is required to show that . . . employees [were exposed] to a ‘significant risk’ of harm.” A.H.

Sturgill Roofing, Inc., 27 BNA OSHC 1809, 1810-11 (No. 13-0224, 2019) (quoting Beverly

Enters., Inc., 19 BNA OSHC 1161, 1170-72 (No. 91-3144, 2000) (consolidated)). The Secretary

establishes the existence of a hazard “if the hazardous incident can occur under other than a

freakish or utterly implausible concurrence of circumstances.” Waldon Health Care Ctr., 16

BNA OSHC 1052, 1060 (No. 89-2804, 1993) (consolidated) (citing Nat’l Realty & Constr. Co.

v. OSHRC, 489 F.2d 1257, 1265 n.33 (D.C. Cir. 1973)). In finding that the Secretary failed to

establish H&M employees were exposed to a significant risk of harm, the judge credited H&M’s

expert witness, Dr. Glenn Stevick, who opined that the bolts on the digger derrick involved in the

incident were sufficiently tight10 and their failure was due primarily to the design defect

identified by Altec’s recall notice. 

On review, the Secretary argues that the judge’s ruling is contrary to the manufacturer’s

decal that appears on the digger derrick itself, as well as testimony from his expert, Phillip

Toone. We agree. The judge’s reliance on Stevick’s testimony was misplaced because his

opinions rested almost entirely on the bolts’ design defect and the role the defect allegedly

played in the incident, neither of which is relevant to this inquiry. As the Secretary points out,

Stevick’s testimony is also contrary to the manufacturer’s decal, which clearly warns that

employees can be seriously injured or even killed if the bolts are not inspected and properly

torqued. 

Toone, on the other hand, testified that failing to torque test the bolts could result in

fatigue failure, which could cause the bolts to “back[] out and fall[] out” of the flange-to-gearring connection and eventually cause the digger derrick to collapse. Unlike Stevick, Toone

specifically addressed the cited conditions and his testimony is consistent with the

manufacturer’s decal.11 Therefore, we accord greater weight to Toone’s testimony and find that

10 According to Stevick’s testimony and his expert report, testing on other H&M digger derrick

units after the incident revealed that those bolts were all within 10% of Altec’s specifications.

Such evidence, however, is irrelevant to determining whether H&M’s undisputed failure to

torque test the bolts posed a significant risk of harm.

11 Toone also testified that even tight bolts eventually fatigue from use and can create a lifethreatening incident. 

5
the Secretary has proven the existence of a hazard that exposed H&M employees to a significant

risk of harm.

II. Recognition

The Secretary must prove either that “a hazard . . . is recognized as such by the

employer” or by “general understanding in the [employer’s] industry.” Otis Elevator Co., 21

BNA OSHC 2204, 2208 (No. 03-1344, 2007) (citing Kokosing Constr. Co., 17 BNA OSHC

1869, 1873 (No. 92-2596, 1996)). The Secretary can establish actual recognition by, among

other things, showing that a supervisor was aware of the hazard. See Integra Health Mgmt., Inc.,

No. 13-1124, 2019 WL 1142920, at *8 (OSHRC Mar. 4, 2019) (work rules and supervisor

awareness establish employer recognition of workplace violence hazard); Mo. Basin Well Serv.,

Inc., 26 BNA OSHC 2314, 2316 (No. 13-1817, 2018) (supervisor’s knowledge of hazard

imputable to employer and establishes employer recognition). Industry recognition can be

proven through manufacturers’ communications or industry standards that “contain a safety

warning or suggest a link between noncompliance and a safety hazard.” K.E.R. Enters., Inc., 23

BNA OSHC 2241, 2243 (No. 08-1225, 2013). Relying on his erroneous finding that the hazard

at issue here was the design defect, the judge concluded that the Secretary failed to establish

recognition because neither H&M nor its industry was aware of the bolts’ design defect at the

time of the incident. 

On review, the Secretary claims that H&M recognized the hazard resulting from the

improperly maintained bolts because Bill Kokemor, H&M’s director of fleet operations, testified

that he had read and understood the Altec manual’s torque testing procedure, and knew that a

relevant American National Standards Institute (ANSI) standard—ANSI/ASSE A10.31, Safety

Requirements Definitions and Specifications for Digger Derricks (2013)—required H&M to

follow that procedure. Kokemor, however, merely agreed that he was “aware of what’s involved

in Altec’s recommended torque testing procedure of digger derricks”—as such, his testimony

does not establish that he in fact recognized that a failure to follow that procedure would result in

the cited hazard. Cf. Young Sales Corp., 7 BNA OSHC 1297, 1298 (No. 8184, 1979) (supervisor

testified that he “not only read the brochures,” but also warned employees of hazard posed by

walking directly on corrugated asbestos sheeting). The Secretary also points to the warning

decal as evidence that H&M had actual recognition of the hazard, but the record lacks any

evidence that Kokemor, or any other H&M management official, was aware of or familiar with

6
the decal’s warning. Therefore, we find the Secretary failed to prove actual recognition of the

hazard. 

In terms of industry recognition, the Secretary relies on two paragraphs in ANSI A10.31

—¶ 8.2.3, which recommends that digger derrick owners and operators look for damaged, loose,

deformed, or missing bolts before each work shift, and ¶ 8.2.4, which recommends that owners

and operators perform an inspection at least once every twelve months that checks the condition

and tightness of bolts in accordance with manufacturer’s recommendations. But neither ANSI

paragraph links an employer’s failure to follow these guidelines to the alleged struck-by and

crushing hazard. See K.E.R. Enters., 23 BNA OSHC at 2243-44 (“[T]he AWWA standard [does

not] state that a failure to comply with their content creates a hazard[.]”); Oberdorfer Indus., 20

BNA OSHC 1321, 1326 (No. 97-0469, 2003) (consolidated) (“ANSI standards in evidence here

do not establish that Oberdorfer's industry recognized that using hooks without latches presented

a hazard of the load falling and striking an employee.”). Therefore, the ANSI standard does not

establish industry recognition. 

We find, however, that the manufacturer’s decal, which plainly warns that failure to

torque the bolts properly can cause a “structural failure,” resulting in “death or serious injury,”

constitutes industry recognition. See Young Sales, 7 BNA OSHC at 1297 n.1 (recognition of

hazard posed by walking on corrugated asbestos sheeting shown by brochure notices, including

one stating: “WARNING! Care should be taken never to walk on an exposed corrugated transite

roof”). Although H&M claims that Altec’s manual does not “even hint that [a] failure to torque

test can cause structural failure” and “the absence” of the decal’s warning in the manual renders

the warning “ambiguous at best,” neither of these arguments has merit. The decal is in fact

included in the manual in the section titled “Accident Prevention Signs” and it could not more

plainly explain that failing to torque the bolts can cause the digger derrick to fall apart, exposing

employees to serious harm. The manufacturer also chose to prominently display the decal on the

machine itself. Accordingly, we find that the Secretary established industry recognition. 

III. Abatement

“The Secretary must specify the proposed abatement measures and demonstrate both that

[they] are capable of being put into effect and that they would be effective in materially reducing

the incidence of the hazard.” Beverly, 19 BNA OSHC at 1190. “Feasible means of abatement

are established if ‘conscientious experts, familiar with the industry’ would prescribe those means

7
and methods to eliminate or materially reduce the recognized hazard.” Arcadian Corp., 20 BNA

OSHC at 2011 (quoting Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2032 (No. 89-0265, 1997)

(citing Nat’l Realty, 489 F.2d at 1257). Here, the Secretary alleges that a feasible method of

abatement is to “ensure that the ALTEC [digger] derrick . . . being used had the bolts tested

according to the ALTEC maintenance and parts manual,” which states “[c]heck all fasteners for

tightness as recommended by the Preventative Maintenance and Inspection Checklist” with

“particular attention to” the “[r]otation bearing mounting cap screws.” 

H&M does not dispute that torque testing is both economically and technologically

feasible.12 The only question, therefore, is whether doing so would be effective in materially

reducing the cited hazard. Again, we agree with the Secretary that the judge erred by couching

his conclusion that torque testing would not effectively reduce the risk of injury in terms of the

bolts’ design defect. As Toone’s testimony makes clear, “the simplest way [to abate the cited

hazard] is to just perform torque testing because that would ensure that those fasteners . . . are

torqued to the proper specification.” Torque testing, according to Toone, “stretches the bolt in

tension, which applies a pre-loaded tension to the fastener, which protects it from fatigue

failure,” a condition that, as noted, would eventually cause the bolts to “back[] out and fall[] out”

of the digger derrick. Toone also explained that torque testing permits “worn-out or deformed

bolts to fail and be replaced in a safe and controlled environment,” as the Altec manual calls for

all bolts to be replaced if one breaks during such testing. 

In rebuttal, the company points to testimony from Stevick that torque testing would not

have materially reduced the hazard because it would not have revealed the design defect the

company contends was the cause of the incident here. But, as discussed above, Stevick’s

opinions in this regard are irrelevant because they focus only on whether torque testing would

have prevented the incident.13 See Arcadian Corp., 20 BNA OSHC at 2011-12 (“The focus is on

abating the recognized hazard, which may not have prevented the incident that resulted in the

12 It is undisputed that H&M had control over its digger derricks and conducted torque testing inhouse before contracting with Diversified. During that time, if H&M discovered a loose bolt on

one of the digger derricks, it would either torque the bolt in-house or hire Altec to do so. In

addition, Shelby Mathis, H&M’s Jacksonville construction manager at the time of the incident,

testified that H&M hired Ring Power to torque test the bolts on its digger derricks after the

incident. See Sci. Applications Int’l Corp., No. 14-1668, 2020 WL 1941193, at *8 (OSHRC Apr.

16, 2020) (proposed abatement feasible where employer had already implemented measure postincident and employer provided no evidence it could not have done so at the time of the

incident). 

8
injury.” (citing Kelly Springfield Tire Co., 10 BNA OSHC at 1973)). As such, neither his report

nor his testimony rebuts Toone’s expert opinion that torque testing the bolts would materially

reduce the cited hazard.14 In addition, the company’s position is directly contrary to the

manufacturer’s warning decal, which sets forth the very same means of abatement proposed here

by the Secretary. See Young Sales, 7 BNA OSHC at 1297 n.1, 1299 (Secretary established

proposed abatement methods were feasible where manufacturer’s written instructions warned

that “[w]orkmen must use” these very methods for “all roofing work”); see also Arcadian Corp.,

20 BNA OSHC at 2011-12 (cited employer’s industry recognized one of Secretary’s proposed

abatement measures). Accordingly, we find the Secretary established the feasibility and efficacy

of his proposed abatement measure.

IV. Knowledge

Finally, the Secretary must also prove that “the employer knew or, with the exercise of

reasonable diligence could have known of the hazardous condition.” Peacock Eng’g Inc., 26

BNA OSHC 1588, 1592 (No. 11-2780, 2017) (citing PSP Monotech Indus., 22 BNA OSHC

1303, 1305 (No. 06-1201, 2008)). “[T]he Secretary must show knowledge of the conditions that

form the basis of the alleged violation; not whether the employer had knowledge that the

conditions constituted a hazard.” Cent. Fla. Equip. Rentals, Inc., 25 BNA OSHC 2147, 2155

(No. 08-1656, 2016) (emphasis in original). A supervisor’s knowledge of the hazardous

condition can be imputed to the employer. Rawson Contractors, Inc., 20 BNA OSHC 1078,

13 Stevick stated in his report that the digger derrick “[b]olts would have to be near 50% of their

specified torque to have an effect on [b]olt fatigue” and that was “highly unlikely” here.

Therefore, he concluded that low bolt torque did not play a role in the fatal incident. We reject

this conclusion as irrelevant because it focuses on the cause of the incident, rather than the

alleged hazard. See n.10, supra.

14 H&M argues, based upon Stevick’s testimony that a lower torque was better for the defective

bolts, that torquing the digger derrick bolts to the manufacturer’s specification would have

created a greater hazard. See Acme Energy Servs., 23 BNA OSHC 2121, 2127 (No. 08-0088,

2012) (“If the proposed abatement ‘creates additional hazards rather than reducing or eliminating

the alleged hazard, the citation must be vacated for failure to prove feasibility . . . .’ ” (quoting

Kokosing, 17 BNA OSHC at 1875 n.19)), aff’d, 542 F. App’x 356 (5th Cir. 2013) (unpublished).

This claim, however, is directly rebutted by Toone’s testimony that although lower torque may

have better accommodated the design defect, the likelihood of separation between the flange and

gear ring, which can lead to structural failure, increases when the bolts are not tightened to the

manufacturer’s specification. In any event, we note that it is undisputed that neither H&M nor

Diversified was conducting any torque testing at the time of the incident and OSHA’s inspection.

9
1080 (No. 99-0018, 2003). As noted, the judge did not address this element of the Secretary’s

burden of proof.15 

Actual Knowledge

The Secretary argues that H&M had actual knowledge of the violative condition—the

company’s failure to maintain the digger derrick’s bolts by torque testing them—on two grounds,

both which we find lack support in the record. First, the Secretary points out that H&M’s

agreements and communications with Diversified did not provide for torque testing and the

disclaimer Diversified included in its inspection reports in the months leading up to the incident

show that the contractor was not torque testing, and all of H&M’s fleet managers and supervisors

had access to these reports. The record, however, lacks evidence that any H&M management

official had in fact read and understood the inspection report’s disclaimer or understood that the

two companies’ agreements did not include torque testing. Therefore, we find that those

documents do not establish that H&M had actual knowledge of its failure to torque test. 

Second, the Secretary claims that H&M managers observed Diversified’s digger derrick

inspections and therefore had actual knowledge that torque testing was not being performed.

According to Brett Smith, a Diversified inspector, he always used a regular wrench, not a torque

wrench, to check each digger derrick’s bolts and an H&M fleet manager, Lee Rich, would stand

“over [his] shoulder . . . kind of watching [him] do a whole inspection.” Diversified’s vice

president of sales Russell also testified that H&M “audited our [inspectors] multiple times.

[H&M supervisor] Bobby Reynolds . . . watched them do a complete inspection and never once

said anything about [the inspector] not torquing the rotation bearing bolts.” 

But neither one of the H&M supervisors referenced by Smith and Russell testified at the

hearing and the two H&M managers who did appear as witnesses gave contrary accounts.

Mathis, H&M’s Jacksonville construction manager at the time of the incident, testified that he

had never “seen [Smith] actually do an inspection” or anyone else “from Diversified.” And

according to Steve Dix, H&M’s fleet maintenance and programs coordinator at the time of the

15 Rather than remand to the judge to address this unresolved issue in the first instance, we find

that the record is sufficient for us to determine whether the Secretary established the knowledge

element. C.f., e.g., A.E.Y. Enters., 21 BNA OSHC 1658, 1659 (No. 06-0224, 2006) (remanding

since judge normally first makes factual findings, which “allows the Commission to exercise its

review function and is particularly beneficial in cases involving close questions of fact”). In

addition, the parties have fully briefed the issue, and H&M has expressly asked that we exercise

our authority to review the entire case and rule on this issue. See 29 C.F.R. § 2200.92(a). 

10
incident, it was not H&M’s practice to “look over the[] shoulder[s of contractors] and see what

they’re doing.” Furthermore, neither Smith nor Russell explained how the H&M supervisors

were ever in a position to actually determine what type of wrench the Diversified inspector was

using to tighten the bolts. Cf. Kan. Power & Light Co., 5 BNA OSHC 1202, 1204 (No. 11015,

1977) (actual knowledge established where supervisory employee directly observed violative

conduct). For these reasons, we consider the consistent testimony from H&M’s two supervisors

more persuasive than that of Diversified’s inspector and vice president. See Metro Steel Constr.

Co., 18 BNA OSHC 1705, 1706-07 (No. 96-1459, 1999) (based on “totality of the evidence,

and . . . the respective ability of each witness to observe the incidents” at issue, finding that

weight of testimony requires resolving ambiguity against Secretary). Therefore, we find that the

Secretary failed to establish actual knowledge.

Constructive Knowledge

The Secretary can establish constructive knowledge “where the evidence shows that the

employer ‘could have known about [the cited condition] with the exercise of reasonable

diligence.’ ” Greenleaf Motor Express, Inc., 21 BNA OSHC 1872, 1874-75 (No. 03-1305, 2007)

(quoting Hamilton Fixture, 16 BNA OSHC 1073, 1087 (No. 88-1720, 1993)), aff’d, 262 F.

App’x 716 (6th Cir. 2007) (unpublished). Reasonable diligence turns “on several factors,

including an employer’s obligation to . . . anticipate hazards, [and] take measures to prevent

violations from occurring . . . .” Jacobs Field Servs. N.A., 25 BNA OSHC 1216, 1218 (No. 10-

2659, 2015), aff’d, 659 F. App’x 181 (5th Cir. 2016) (unpublished). Reasonable diligence also

requires an employer to make reasonable inquiries when alerted to potential hazards. See Pride

Oil Well Serv., 15 BNA OSHC 1809, 1811 (No. 87–692, 1992) (finding lack of reasonable

diligence when crew supervisor fielded employee complaints yet failed to make inquiries into

contents of mobile storage tank and the hazards they might pose).

The Secretary argues that H&M failed to exercise reasonable diligence here because the

company never asked Diversified to torque test the digger derrick bolts during its inspections and

did not negotiate a price for that service. The Secretary also claims that H&M failed to

“inquir[e]” whether Diversified was torque testing, despite the fact that a 2016 agreement

between the two companies did not include the service and Diversified’s inspection reports in the

months leading up to the incident “clearly stated” that the contractor was not doing such testing.

H&M responds that communications between Russell and Kokemor leading up to the 2016

11
agreement established that Diversified would perform ANSI-compliant inspections of H&M’s

digger derricks and did not carve out an exception for torque testing. H&M also argues that the

torque testing disclaimer on Diversified’s reports is “self-contradictory” because these reports

also state that inspections were performed “in accordance [with] ANSI A10.31 & OSHA 1926,”

which would have included torque testing. 

While the evidence relating to Diversified’ s relationship with H&M and torque testing is

not a model of clarity, we agree with the Secretary that H&M could have known Diversified was

not performing torque testing during its digger derrick inspections with the exercise of

reasonable diligence. First, the scope of work agreement for H&M’s central region that both

parties executed in 2011 simply states that “rotation bearing bolts are to be checked for tightness

with a wrench.” Following discussions with H&M in 2016, Russell sent a letter and pricing

schedule to Kokemor stating that “[d]igger derricks . . . are ANSI inspected every 180 days.”

But the letter did not list torque testing in the pricing schedule, and Russell confirmed that it was

not included. While Kokemor testified that he did not recall Russell telling him that torque

testing was not included in the inspection price, he also admitted that he did not ask Russell

whether Diversified was torque testing the bolts. See Greenleaf, 21 BNA OSHC at 1875

(“failure to make reasonable inquiries regarding” substances client introduced into tankers

“establishe[d] that Greenleaf failed to exercise reasonable diligence”); Automatic Sprinkler

Corp. of Am., 8 BNA OSHC 1384, 1387 (No. 76-5089, 1980) (“employer must make a

reasonable effort to anticipate the particular hazards to which its employees may be exposed”). 

Second, reasonable diligence required H&M to take some action to determine whether

torque testing was being performed, such as asking Diversified whether such testing was

included in its inspections or taking time to review even one of the inspection reports Diversified

had recently provided. See Blount Int’l Ltd., 15 BNA OSHC 1897, 1900 n.3 (No. 89–1394,

1992) (“Far from requiring the contracting employer to duplicate the safety efforts of the

specialist, the Act demands only that general contractors apprise themselves of which safety

efforts their specialty subcontractors have chosen to make in completing their assignments.”).

Contrary to H&M’s claim, these inspection reports were not “self-contradictory” regarding

torque testing. Immediately following the title page on which H&M relies is a page headed by

the capitalized word “DISCLAIMER” followed by language expressly stating that “[i]t is the

customer’s responsibility to torque and maintain all bearing bolts in accordance with the

12
equipment manufacturer’s specifications to ensure that all bolts are properly torqued.” Given

this plain disclaimer—which was included in multiple inspection reports submitted to H&M in

the months preceding the incident—as well as H&M’s failure to make any effort to determine

whether Diversified was torque testing the digger derrick bolts, we find the Secretary has

established that H&M failed to exercise reasonable diligence and, accordingly, had constructive

knowledge of the violative condition.

V. Affirmative Defenses

H&M asserts two affirmative defenses to the violation, both of which we reject. First, the

company claims that it reasonably relied on Diversified to perform torque testing as part of its

digger derrick inspections and therefore lacked constructive knowledge of the violative

condition. Manua’s, Inc., No. 18-1059, 2018 WL 6171790, at *3-4 (OSHRC Sept. 28, 2018),

aff’d, 948 F.3d 401 (D.C. Cir. 2020) (“Reasonable reliance on a specialty contractor . . . is an

affirmative defense to constructive knowledge, and therefore Respondent had the burden of

proof.”). See also Sasser Elec. & Mfg. Co., 11 BNA OSHC 2133, 2136 (No. 82-178, 1984)

(finding cited employer’s reliance on hired crane operator to maintain sufficient distance from

power lines reasonable because its employees had never operated cranes, it had no reason to

foresee crane operator would violate standard, and cited hazard fell within operator’s expertise),

aff’d, No. 84-1961, 1985 WL 1270163 (4th Cir. Aug. 8, 1985) (unpublished).16 

We disagree. Unlike the employer in Sasser, H&M had expertise in this area because it

had torque tested the digger derrick bolts prior to hiring Diversified, and H&M mechanics

exercised day-to-day control over the machines. Moreover, Diversified’s inspection reports

made clear that the company was not performing torque testing, yet H&M made no effort to

review these reports and did not otherwise inquire as to whether Diversified was torque testing.

See Manua’s, 2018 WL 6171790, at *3 (“An employer may not assume a subcontractor has

taken required safety precautions without reasonable inquiry.”) (citing Blount, 15 BNA OSHC at

16 We reject the Secretary’s argument that H&M waived its reasonable reliance defense because

it was not pled in the company’s answer or raised in its pre-trial statement. H&M did, in fact,

raise reasonable reliance in its pre-trial statement, and the parties’ joint pre-trial statement also

states that the parties would litigate the issue. Therefore, the Secretary was aware of H&M’s

claim that it reasonably relied on Diversified to conduct torque testing. See Bill C. Carroll Co., 7

BNA OSHC 1806, 1812 n.17 (No. 76-2748, 1979) (affirmative defense allowed when Secretary

was on notice defense would be litigated and did not make a showing that allowing the defense

would prejudice his case). 

13
1900 n.3). Finally, unlike the violative condition in Sasser, the violative condition here was not

momentary or fleeting—in fact, the record shows it was more likely than not that Diversified had

never provided torque testing for H&M. See Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077,

1083 (D.C. Cir. 2007) (employer’s reliance on contractor when decking collapsed not reasonable

because, among other things, hazard existed over “span of several weeks”). 

Second, H&M claims that the decedent engaged in unpreventable employee misconduct

because he violated the company’s work rule requiring operators to stop using equipment when a

piece breaks or fails, and that this rule had been adequately communicated to its employees. See

ComTran Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1308 (11th Cir. 2013) (to establish

misconduct defense, employer must show it “(1) created a work rule to prevent the violation at

issue; (2) adequately communicated that rule to its employees; (3) took all reasonable steps to

discover noncompliance; and (4) enforced the rule against employees when violations were

discovered.”). In making this argument, however, the company focuses on the cause of the

incident rather than on its alleged failure to properly maintain the bolts on its digger derricks,

which, as discussed above, is the basis for the violation. In any event, H&M provides no

evidence establishing the monitoring or enforcement elements of its alleged defense. 

For all these reasons, we reverse the judge, affirm Serious Citation 1, Item 1, and assess

the proposed penalty of $12,934.17

SO ORDERED.

 /s/ 

Cynthia L. Attwood 

Chairman

 /s/ 

Amanda Wood Laihow 

Dated: July 21, 2022 Commissioner

17 The parties do not dispute the proposed penalty amount on review. See K.S. Energy Servs.,

Inc., 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416, 2008) (assessing proposed penalty amount

where the parties did not dispute it).

14
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 18-1864

HENKELS & MCCOY, INC.,

Respondent.

DECISION AND ORDER

Attorneys and Law firms

Charna C. Hollingsworth-Malone, Attorney, Office of the Solicitor, U.S. Department of Labor,

Atlanta, GA, for Complainant. 

Carol A. Field, Morgan, Dennis J. Morikawa, Attorneys, Lewis & Bockius, LLP, Miami, FL,

Philadelphia, PA, for Respondent.

JUDGE: John B. Gatto, United States Administrative Law Judge.

I. INTRODUCTION

This case involves a tragic accident that occurred on May 2, 2018, when an employee of

Henkels & McCoy, Inc. (“H&M”) was injured while attempting to remove a utility pole and later

died from his injuries. The United States Department of Labor, through its Occupational Safety

and Health Administration (“OSHA”), investigated the accident and subsequently issued18 a

serious19 citation under the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C.

18 The Secretary of Labor has assigned responsibility for enforcement of the Act to OSHA and has

delegated his authority under the Act to the Assistant Secretary for Occupational Safety and Health, who

heads OSHA. See Order No. 4–2010 (75 FR 55355), as superseded in relevant part by 1–2012 (77 FR

3912). The Assistant Secretary has redelegated his authority to OSHA’s Area Directors to issue citations

and proposed penalties. See 29 C.F.R. §§ 1903.14(a) and 1903.15(a). The terms “Secretary” and “OSHA”

are used interchangeably herein.

19 The Act contemplates various grades of violations of the statute and its attendant regulations—

“willful”; “repeated”; “serious”; and those “determined not to be of a serious nature” (the Commission

refers to the latter as “other-than-serious”). 29 U.S.C. § 666. A serious violation is defined in the Act; the
§§ 651-678.20 The citation alleged a violation of section 5(a)(1) of the Act, commonly known as

the “general duty clause” and proposed a penalty of $12,934.00. After H&M timely contested the

citations, the Secretary of Labor filed a formal complaint with the Commission seeking an order

affirming the citation and proposed penalty.21 A bench trial was held in Jacksonville, Florida,

and in Phoenix, Arizona. 

The Court finds that at all relevant times H&M was engaged in a business affecting

commerce and was an employer within the meaning of sections 3(3) and 3(5) of the OSH Act.

(Stip. ¶E(1).)22 Further, the Court concludes the Commission has jurisdiction over the parties and

subject matter in this case. (Id. ¶ E(2).) Pursuant to Commission Rule 90, after hearing and

carefully considering all the evidence and the arguments of counsel, the Court issues this

Decision and Order as its findings of fact and conclusions of law.23 All arguments not expressly

addressed have nevertheless been considered and rejected. For the reasons indicated infra, the

Court VACATES the citation without a civil penalty assessment.

II. BACKGROUND

H&M is part of the utility industry and its employees perform general utility line

maintenance, including storm restoration and utilizes derrick diggers, among other things, to

conduct its work. (Tr. at 831, 1219.) A digger derrick is a specialized type of equipment

designed to install utility poles and typically comes equipped with augers to drill holes for the

poles, and with a hydraulic boom to lift the poles and set them in the holes. (Cranes and Derricks

in Construction: Revising the Exemption for Digger Derricks, 78 Fed. Reg. 32110-01 (May 29,

2013)). A digger derrick is about the size of a dump truck, but instead of a dumping mechanism,

the digger derrick’s flatbed is outfitted with a captain’s chair, atop a pedestal, and a boom. (Tr. at

other grades are not.

20 Although the citation initially included a second item alleging a personal protective equipment

violation under 29 § CFR 1926.28(a), it was withdrawn by the Secretary prior to trial.

21 Attached to the Complaint and adopted by reference was the citation at issue (Compl., Ex. A).

Commission Rule 30(d) provides that “[s]tatements in a pleading may be adopted by reference in a

different part of the same pleading or in another pleading or in any motion. A copy of any written

instrument which is an exhibit to a pleading is a part thereof for all purposes.” 29 C.F.R § 2200.30(d).

Although the Secretary’s original citation included a second item alleging a violation of 29 C.F.R §

1926.28(a), OSHA’s personal protective equipment standard, the Secretary withdrew that item prior to

trial.

22 See Jt. Prehearing State.

23 If any finding is in truth a conclusion of law, or if any stated conclusion is in truth a finding of fact, it

shall be deemed so.

2
91, 94; see also Ex. C-1, p. 15.) A steel pedestal is used to attach the digger derrick to the

subframe and chassis. (Ex. R-48, p. 1.) Rotation bearing mounting bolts (“bolts”)24 were used to

secure the pedestal. (Tr. 515-16; see also Ex. C-18, p. 2; Ex. R-2, p. 2.)

[redacted], H&M’s crew leader at the worksite, died on May 2, 2018 as a result of a

tragic accident. (Tr. 88.) On the day of the accident, [redacted] and Ronnie Aldrich, an

apprentice, were assigned to a pole-pulling operation as part of H&M’s contract with

Jacksonville Electrical Authority. (Stip. ¶¶ D1, D7(a) - D7(f).) [redacted] was sitting in the

operator’s seat of one of H&M’s digger derricks removing an existing utility pole and Aldrich

was standing on the ground, when Aldrich heard the digger derrick “creak” and a bolt popped

out of the bottom of the pedestal under [redacted]’s captain’s chair. (Id. at ¶D7.) [redacted]

immediately stopped operations and asked Aldrich to get on the digger derrick to investigate.

(Id.) When Aldrich investigated, he told [redacted] there was a bolt on the bed of the digger

derrick. (Id.) [redacted] told Aldrich to check the rest of the bolts to see if they were tight. (Id.)

After checking, Aldrich told [redacted] that none of the remaining bolts were loose. (Id.)

[redacted] told Aldrich the bolt had sheared off and they would get it checked “after this pole.”

(Id.) Aldrich made a final check to see if the boom had lifted off the digger derrick’s platform

(i.e., to see if there was any space or separation between the boom and the platform) and told

[redacted] there was not. (Id.) [redacted] told Aldrich to get down and “keep an eye on it” and as

Aldrich turned to get down, [redacted] started to move the boom. (Id.) Aldrich heard sounds and

jumped off the digger derrick and as he turned, the boom detached from the platform and fell and

[redacted] was launched out of his seat and landed face first on the pavement. (Id.) [redacted]

later died as a result of his injuries. (Id.) 

III. ANALYSIS

The fundamental objective of the Act is to prevent occupational deaths and serious

injuries. Whirlpool Corp. v. Marshall, 445 U.S. 1, 11 (1980). Thus, “[t]he Act's purpose is

straightforward: ‘to assure so far as possible safe and healthful working conditions’ for ‘every

working man and woman in the Nation.’ ” Sec'y, U.S. Dep't of Labor v. Action Elec. Co., 868

F.3d 1324, 1333 (11th Cir. 2017) (quotations omitted).25 “The Secretary has rulemaking power

24 Although the parties, witnesses and documentary evidence sometimes referred to the rotation

bearing mounting bolts as rotation bearing mounting cap screws, rotation bearing cap screws, or

rotation bearing fasteners, the Court uses the term rotation bearing mounting bolts or bolts.

25 The employer or the Secretary may appeal a Commission order to the federal court of appeals for the

circuit in which the violation allegedly occurred or where the employer has its principal office, and the

3
and establishes the safety standards; investigates the employers to ensure compliance; and issues

citations and assesses monetary penalties for violations.” ComTran Grp., Inc. v. U.S. Dept. of

Labor, 722 F.3d 1304, 1307 (11th Cir. 2013). The Commission, meanwhile, has adjudicative

power and serves “as a neutral arbiter and determine whether the Secretary's citations should be

enforced over employee or union objections.” Cuyahoga Valley Ry. Co. v. United Transp. Union,

474 U.S. 3, 7 (1985) (per curiam).

To implement the purpose of the Act, “Congress imposed dual obligations on

employers,” “a ‘general duty’ to free the workplace of all recognized hazards” and “a ‘special

duty’ to comply with all mandatory health and safety standards.” ComTran, 722 F.3d at 1307.

However, under either the general or special duty clause, a hazard does not itself establish a

violation. United States v. Mar-Jac Poultry, Inc., 756 F. App'x 856, 862–63 (11th Cir. 2018).

“OSHA can only issue general duty clause citations where it has not promulgated a regulation

covering a particular situation at an employer's worksite.” Roberts Sand Co., LLLP v. Sec'y of

Labor, 568 F. App'x 758, 759 (11th Cir. 2014). Here, although OSHA has promulgated a

regulation covering Cranes and Derricks in Construction, it exempted digger derricks used for

augering holes for poles carrying electric or telecommunication lines, placing and removing the

poles, and for handling associated materials for installation on, or removal from, the poles. 29

C.F.R. § 1926.1400(c)(4). Thus, the Secretary was authorized to issue general duty clause

citation.

A. Alleged General Duty Clause Violation

An employer commits a “general duty” clause violation when he fails to “furnish to each

of his employees employment and a place of employment which are free from recognized

hazards that are causing or are likely to cause death or serious physical harm to his employees.”

29 U.S.C. § 654(a)(1). The Secretary alleges H&M violated the general duty clause when it

“exposed employees to struck-by and crushing hazards, in that; it did not ensure rotation bearing

cap screws on Altec Digger Derricks (to include but not limited to units 44505; 44474; 44475;

employer also may appeal to the District of Columbia Circuit. See 29 U.S.C. §§ 660(a) and (b). The

alleged violation occurred in Florida, which is in the Eleventh Circuit and the company’s principal office

is in Pennsylvania, which is in the Third Circuit. The Commission has held that “[w]here it is highly

probable that a case will be appealed to a particular circuit, the Commission generally has applied the

precedent of that circuit in deciding the case— even though it may differ from the Commission's

precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000). This Court applies

the precedent of the Eleventh Circuit in deciding the case where it is highly probable that the case will be

appealed.

4
44473) were being properly maintained.” (Compl., Ex. A.) The diggers derricks at issue in this

case were the Altec DC47 series. (Stip. ¶¶D9-D12.)

To prove a violation of the general duty clause in the Eleventh Circuit, the Secretary must

establish by a preponderance of the evidence “that ‘(1) the employer failed to render its work

place free of a hazard; (2) the hazard was recognized; ... (3) the hazard caused or was likely to

cause death or serious physical harm’ and ‘(4) the hazard [was] preventable.’” Pepper

Contracting Servs. v. Occupational Safety & Health Admin., 657 F. App'x 844, 847-48 (11th Cir.

2016) (omission in original) (citation omitted). Further, under binding Fifth Circuit precedent,26

the general duty clause “requires the employer to eliminate only ‘feasibly preventable’ hazards.”

Champlin Petroleum Co. v. Occupational Safety & Health Review Comm'n, 593 F.2d 637, 640

(5th Cir. 1979) (citation omitted). For the reasons indicated supra, the Court concludes the

Secretary has failed to prove three of the four elements of his prima facie case. 

Whether Hazard Was Present

Although the term “hazard” is not defined in the Act, the Eleventh Circuit has explained

it “refers to the risk of injury as a result of the condition[.]” Fla. Lemark Corp. v. Sec'y, U.S.

Dep't of Labor, 634 F. App'x 681, 687 (11th Cir. 2015). The Commission has also held “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.” Arcadian Corp., 20

BNA OSHC 2001, 2008 (No. 93-0628, 2004) (citations omitted). Here, the Secretary argues the

“risk of injury” was being crushed-by or struck-by the boom as a result of H&M’s failure to

properly maintain the bolts. The Court does not agree with the Secretary’s definition of the

hazard. As indicated infra, the preponderance of evidence establishes that the “condition” was

not H&M’s failure to properly maintain the bolts, but rather, was a manufacture’s defect that

existed in the Altec DC47 series diggers derricks. Thus, the Court concludes the Secretary failed

to define the hazard in a way that apprised H&M of its obligations and identified conditions or

26 The Eleventh Circuit was created when the Fifth Circuit split on October 1, 1981. See Fifth Circuit

Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995. The Eleventh Circuit has

adopted the case law of the former Fifth Circuit handed down as of September 30, 1981, as its governing

body of precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). This body of

precedent is binding unless and until overruled by the Eleventh Circuit en banc. Id. Further, the decisions

of the continuing Fifth Circuit's Administrative Unit B are also binding on the Eleventh Circuit, while

Unit A decisions are merely persuasive. Dresdner Bank AG v. M/V Olympia Voyager, 446 F.3d 1377

(11th Cir. 2006).

5
practices over which H&M could reasonably be expected to exercise control. Therefore, the

Court concludes the Secretary has failed to establish the existence of a hazard. 

The Secretary’s expert, Phillip Toone,27 explained:

Fasteners are used to assemble [the] components. When forces are subjected to

the resulting assembly, [the] fasteners must remain intact for the assembly to

remain integral. Forces subjected to an assembly, and consequently the fasteners

that hold it together, can be classified as either static or dynamic. Static forces are

straight forward in that they can be subjected to an assembly in a single test to

demonstrate that the assembly is capable of withstanding the static force. In the

case of dynamic loading, materials can and will fatigue causing them to fail after

an unknown number of cycles. 

...

Engineers take advantage of this and specify torque parameters to protect

fasteners from destructive dynamic loading. Torque specifications are typically

communicated to those responsible for repair and maintenance of equipment

through owner[’]s manuals and/or maintenance/repair manuals. Failure to heed

these requirements will subject the fastener to dynamic loading and eventual

fatigue failure. Engineers may identify a particular connection in an assembly that

warrants extra attention to ensure protection against dynamic loading. Periodic

torque testing of the fasteners for such a connection may be required to ensure

safe operation of the assembly. A torque test will often be as straight forward as

simply applying a specified torque to the fastener to ensure it is tight enough to

protect it from dynamic loading. Alternatively or in addition to torque testing

fasteners may be marked to provide visual confirmation that the fastener has been

torqued and that it has not rotated after being torqued.

(Ex. C-18, pp. 4-5, 6.)28 Mr. Toone opined the bolts “failed through the mechanism of fatigue.”

(Tr. 551, 552-53.) As Mr. Toone explained, “it's important that fasteners are torqued to a proper

specification because doing so reloads the fastener with tensile stress as it's compressing the

material that it's clamping down on.” (Tr. 529.) Put another way, “the primary purpose for doing

that” is “that the torquing process stretches the bolt in tension, which applies a pre-loaded tension

to that fastener, which protects it from fatigue failure.” (Tr. 537.) “Doing this protects the

fastener against cyclic or dynamic loading, which can result in fatigue failure.” (Tr. 529.) By

27 Mr. Toone has been an engineer since 2003 and has been an engineer with OSHA’s Salt Lake

Technical Center since 2010. (See Ex. C-18; see also Ex. R-7.) He has a Master of Science degree in

mechanical engineering and in aerospace engineering. (Id.; see also id.) He has never previously testified

as an expert. (Id.) He has experience in ensuring bolted connections (or fasteners) maintain their

structural integrity by understanding their strength, resistance to corrosion, assembly, and problems

with use. (See Tr. 515.) He testified as a mechanical engineer with a focus on fastener integrity. (Id. 522.)

28 Mr. Toone uses the term “fastener” when referencing the rotation bearing mounting bolts. (Tr. at

515-516.) “A fastener, in a very generic broad sense, is anything that fastens parts of an assembly

together ... it applies to both bolts and screws ....” (Id.)

6
way of example, Mr. Toone explained that fatigue failure could be compared to bending a piece

of wire until it eventually breaks. If you bend wire once, it may not break. But after five, ten or a

thousand bends, it will. (Id. 538.) Thus, fasteners, when used and loaded as part of a bolt

assembly, would be compared to bending a wire. (See generally, id.)

Mr. Toone also opined that “there is an additional benefit to torquing these fasteners, in

addition to helping protect against fatigue, that because these fasteners had experienced some

damage due to microcracks and corrosion that they were going to fail at a lower threshold than

they would if there were no damage.” (Id.; see also Tr. 532) Thus, torque testing of these bolts

“would have provided an opportunity for them to fail in a safe and controlled environment

revealing that they were no longer fit for service. This would have prompted the replacement of

all of the ... [bolts].” (Ex. C-18, p. 6, ¶ G.) Mr. Toone opined that failing to follow the

manufacturer’s instructions, including torque testing the bolts to the manufacturer’s prescribed

torque values, created a hazard. (Tr. 537; see also Ex. C-18, p. 6, ¶ D.v.)

However, H&M’s expert, Dr. Glen Stevick,29 disagreed with Mr. Toone’s conclusions,

and opined “the torque evidence found in the sister units 44474 and 44475 (they were tight and

at specification) and Altec’s use of a patch thread lock indicate the subject bolts were almost

certainly tight and at specification. ... There is no evidence to support a theory of loose bolts.

Rather, the available evidence suggests the bolts were tight.” (Ex. R-2, p. 2.) In Dr. Stevick’s

expert opinion, the loss of torque and preload in the bolts could result in a fatigue failure of the

bolts if separation of the components being bolted together occurred because the cyclic load that

would normally be transferred through the components would then be transferred through the

bolts. (Ex. R-2, p. 5) (emphasis added). Thus, Dr. Stevick opined the available evidence

indicated that separation did not occur. (Id.) The Court credits Dr. Stevick’s expert opinion,

which is consistent with Aldrich’s statement, the only eyewitness, that after the bolt broke, the

boom had not lifted off the digger derrick’s platform (i.e., there was no space or separation

29 Dr. Stevick is Mechanical Engineer, Principal, with a Ph.D. in Mechanical Engineering. (See Ex. R-2.)

He has been an engineer since 1981 and has been a Principal, Consultant with Berkeley Engineering And

Research, Inc. since 1986 and has over 35 years of experience in failure analysis, design, damage

mechanics (corrosion, fracture, fatigue, creep, etc.) and risk assessment of: structures; stadium roofs;

industrial equipment; medical devices such as aortic stents, hip and knee implants and spinal rod

implants; exercise equipment; turbines and reciprocating engines; automotive and aircraft components;

offshore platforms for wind generation and oil exploration; pressure vessels and piping systems;

blowdown, blowout and breakaway systems; heat exchangers, boilers and furnaces; and electronic

controls and interlocks for battery systems, consumer products and industrial equipment. (Id.)

7
between the boom and the platform). Therefore, the Court concludes the Secretary has failed to

establish the existence of a hazard resulting from improper maintenance of the bolts. 

Further, even assuming the Secretary’s is correct that the “condition” was H&M’s failure

to properly maintain the bolts, the Court nonetheless concludes he has failed to show employees

were exposed to a significant risk of harm. “To prove that a condition presents a hazard under

the general duty clause, the Secretary is required to show that ... employees [were exposed] to a

“significant risk' of harm.” Sci. Applications Int'l Corp., d/b/a Saic, 2020 WL 1941193, at *4

(No. 14-1668, 2020) (quoting A.H. Sturgill Roofing, Inc., 27 BNA OSHC 1809, 1810-11 (No.

13-0224, 2019) (quoting Beverly Enters., Inc., 19 BNA OSHC 1161, 1170-72 (No. 91-3144,

2000) (consolidated)). As indicated supra, the Court credits Dr. Stevick’s expert opinion and

concludes H&M’s employees were not exposed to a significant risk of harm from improper

maintenance of the bolts since “the available evidence suggests the bolts were tight.” 

Significantly, Dr. Stevick further opined “the failure was primarily due to an underdesigned (pedestal/ring gear) bolted connection that subjected the rotation bearing mounting cap

screws (‘bolts’) to excessive cyclic tensile and bending stresses.” (Ex. R-2, pp. 2, 8; see also Tr.

951-52.) As Dr. Stevick explained, “the highest tensile stress is on the outer surface,” and when

the bolt circle was bent from the boom falling, “the failure was on the inside of the bolt instead

of the outside relative to the center of the bolt circle.” (Tr. 902-03.) “That means that those

flanges were pried and not stiff enough in design. And sure enough that's what the calculations

showed.” (Tr. 903.) Dr. Stevick explained:

[T]he fatigue crack initiation and growth has occurred on the inner side of the

bolts. In other words, the side toward the center of the gear ring and bolt circle. If

the bolted connection halved (gear ring and pedestal flange) were adequately stiff,

crack initiation would occur at the furthest point from the center of the gear ring

and bolt circle, or at least exhibited cracking all the way around. Instead, flexing

of the pedestal flange is causing the bolt to bend[.] This opinion is based on my

detailed stress analysis of several similar crane and man lift pedestal/ring gear

failures using finite element analysis (FEA) and experience in bolted connections

consulting with Bigge Crane and Rigging, the Golden Gate Bridge and numerous

other clients that are heavy users of bolted connections.

(Ex. R-2, p. 3; see also id. Fig 2, Fig 3.) Dr. Stevick further explained:

[I]f the pedestal flange was adequately stiff, the Bolts would experience their

maximum stress at the first thread of engagement with the threads of the ring

gear,2 and would have fatigued and failed at that location. However, the Bolts

failed outside the thread engagement with the ring gear. This clearly indicates the

8
maximum stresses were outside the thread engagement area and due to local

bending of the Bolts caused by excessive pedestal flange flexing. 

(Id. p. 4.) The Secretary’s expert, Mr. Toone, admitted he had called Altec and confirmed the

tensile strength of the bolts were “akin to something over a Grade 8,” which “tend to be more

brittle than a lower grade bolt.” (Tr. 567-68.) The Court credits Dr. Stevick’s expert opinion,

which was not refuted by Mr. Toone. Thus, the Court concludes the preponderance of evidence

shows the bolt failure was primarily due to a design defect. 

Whether Hazard Was Recognized

“[A] ‘recognized hazard’ is a condition that is ‘known to be hazardous.’” Georgia Elec.

Co. v. Marshall, 595 F.2d 309, 321 (5th Cir. 1979) (citation omitted). “This element can be

established by proving that the employer had actual knowledge that a condition is hazardous.”

Id. “It may also be shown by proving that the condition is generally known to be hazardous in

the industry.” Id. “It does not depend upon whether the particular employer appreciated that the

[condition] was a recognized hazard in the industry.” Id. 

Altec issued a recall notice on October 26, 2018, almost six months after the fatality

occurred, which indicated that a defect existed in the DC47 units that had “rotation bearing

fasteners that can break” and “possibly cause uncontrolled movement resulting in death or

serious injury.” (Ex. R-48, p. 4.) The Secretary failed to proffer any evidence that either H&M

or the industry was aware of the manufacture’s defect prior to Altec’s issuance of its recall

notice. Therefore, the Secretary has failed to establish the condition was generally known to be

hazardous to H&M or in the industry at the time of the accident.

Whether Hazard Was Preventable

The Secretary has the “burden to show that demonstrably feasible measures would

materially reduce the likelihood that such injury as that which resulted from the cited hazard

would have occurred.” Champlin Petroleum, 593 F.2d at 640 (citation omitted). Thus, the

Secretary “must specify the particular steps the employer should have taken to avoid citation,

and he must demonstrate the feasibility and likely utility of those measures.” Id. The Secretary

asserts one feasible and acceptable method of abatement would have been “to ensure that the

ALTEC derrick digger being used had the bearing bolts tested according to the ALTEC's

maintenance and parts manual.” (Compl., Ex. A.) 

9
The Court concludes the Secretary failed to establish the likely utility of those measures

since he failed to establish that ensuring the bolts were tested in accordance with the

manufacturer’s maintenance manual “would be effective in materially reducing the incidence of

the hazard,” A.H. Sturgill Roofing, Inc., 2019 WL 1099857, at *8 (No. 13-0224, 2019), since the

risk of injury was a result of the manufacturer’s defective bolts. Put another way, even if H&M

had ensured the bolts were tested in accordance with the manufacturer’s maintenance manual,

the Secretary failed to establish it “would effectively reduce the hazard,” i.e., effectively reduce

the risk of injury as a result of the manufacturer’s defective bolts. Champlin, 593 F.2d at 641. 

For the reasons indicated infra, the Court concludes the Secretary has failed to prove all

of the elements of his prima facie case. Accordingly,

IV. ORDER

IT IS HEREBY ORDERED THAT Citation 1 Item 1 is VACATED and no civil penalty is

assessed.

SO ORDERED.

 /s/ 

First Judge John B. Gatto

Dated: November 2, 2020

Washington, D.C. 

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