Fluent Essays

Why was Sea World cited for a 5(a)(1) violation and what was the outcome? Please use the specific elements required (for a General Duty Clause citation to hold) in your explanation and the outcome of the OSHRC case.https://ohsonline.com/articles/2013/11/11/appeals-court-to-hear-arguments-in-seaworld-case.aspx _osha_general_duty_clause_when_is_the_duty_general.pdf _1705.pdf Unformatted Attachment Preview Mark A. Lies, II Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, Illinois 60603 (312) 460-5877 mlies@seyfarth.com OSHA GENERAL DUTY CLAUSE When Is The Duty “General” By Mark A. Lies II* INTRODUCTION As employers are aware, OSHA enforces safety and health compliance through two methods, the use of: 1. written regulations that address specific hazards (e.g., 29 CFR 1910 (General Industry), 29 CFR 1926 (Construction), etc.) and 2. the General Duty Clause (Section 5(a)(1) of the Act). Compliance with the General Duty Clause is challenging because it does not specify precisely what employers are required to do to comply. Recently, OSHA lost a decision involving a citation it issued under the General Duty Clause because it improperly attempted to expand the scope of the General Duty Clause and utilize certain general information in an equipment manufacturer’s manual and an ANSI approved standard to create a “safety” or “hazard” warning where none existed. * Mark A. Lies, II is a Labor and Employment Law attorney and Partner with Seyfarth Shaw LLP, 131 S. Dearborn Street (Suite 2400), Chicago, Illinois 60603; (312) 460-5877; mlies@seyfarth.com. He specializes in Occupational Safety and Health law and related employment law and personal injury litigation. 15237753v.1 Page 2 GENERAL DUTY CLAUSE REQUIREMENTS In order to prove a General Duty Clause violation, OSHA must establish the following elements: 1. a condition or activity in the workplace created a hazard, 2. the employer or its industry recognized the hazard, 3. the hazard was likely to cause death or serious physical harm, and 4. a feasible means existed to eliminate or materially reduce the hazard. Unless the agency can establish each element, the citation cannot be supported. In the recent case, Secretary of Labor v. K.E.R. Enterprises, Inc., d/b/a Armadillo Underground, OSHRC Docket No. 08-1225 (hereinafter “Armadillo’), the agency failed to meet this burden. ARMADILLO DECISION The employer in Armadillo was an underground utility excavator contract working at a site in Naples, Florida. The Company was installing pipe and utilized a mechanical joint restraining gland that was manufactured by Sigma Corporation (“Sigma”) to connect sections of the pipe. The process required employees to tighten certain bolts prior to a hydrostatic pressure test on the pipe. After tightening the bolts, the hydrostatic pressure test was performed and the pipe attached to the retraining gland exploded, injuring several employees. CITATION OSHA issued a citation under the General Duty Clause for (1) failing to follow certain installation instructions in the Sigma manufacturer’s manual for the restraining gland and (2) failing to install the restraining gland in accordance with an ANSI approved, American Water Works 15237753v.1 Page 3 Association (AWWA) standard relating to rubber gasket joints for ductile iron pressure pipe and fittings. The Administrative Law Judge carefully reviewed the Sigma manufacturer’s instructions and the AWWA standard and found that there were no specific safety hazards or warnings referenced in these materials regarding the installation of the bolts on the gland and that OSHA introduced no evidence that either Armadillo or its industry “recognized” any hazard relating to these manufacturer’s instructions or ANSI standard. Thereafter, the Judge vacated the citation. On appeal to the OSHA Review Commission, the Judge’s decision was affirmed. ANALYSIS Based upon this decision, employers who receive General Duty Clause citations should carefully scrutinize the basis for the citation to determine if OSHA’s specific underlying source of authority (in this case references to parts of a manufacturer’s manual relating to the bolting process and an ANSI approved standard) contain any type of safety or hazard warnings that would put the employer on notice of an actual safety “warning” or “hazard.” If not, OSHA will have difficulty establishing that the employer or its industry “recognized” the hazard. GENERAL DUTY CLAUSE LIABILITY Employers cannot ignore potential General Duty Clause liability, while a Serious Violation contains a potential penalty of $7,000, the General Duty Clause can also be utilized for Willful or Repeat citations which can carry penalties up to $70,000 per violation. RECOMMENDATIONS In order to avoid OSHA liability (and more importantly an accident with employee injury), the employer should consider the following recommendations: 15237753v.1 Page 4 15237753v.1 • review manufacturer’s manuals to identify specific safety or hazard warnings and incorporate them in employee safety policies and procedures • review industry consensus safety standards applicable to the employer’s industry and identify safety recommendations to be incorporated in employer safety policies and procedures • once the policies and procedures are developed, conduct employee training, with documentation, and enforce compliance with discipline up to and including termination, again with documentation. UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1924 Building – Room 2R90, 100 Alabama Street, S.W. Atlanta, Georgia 30303-3104 Secretary of Labor, Complainant v. OSHRC Docket No. 10-1705 SeaWorld of Florida, LLC, Respondent. Appearances: John A. Black, Esquire and Tremelle Howard-Fishburne, Esquire Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia For Complainant Carla J. Gunnin Stone, Esquire Constangy, Brooks & Smith, LLC, Atlanta, Georgia For Respondent Karen C. Dyer, Esquire and Jon L. Mills, Esquire Boies, Schiller & Flexner, LLP, Orlando, Florida For Intervenor Before: Administrative Law Judge Ken S. Welsch DECISION AND ORDER SeaWorld of Florida, LLC, is a marine animal theme park in Orlando, Florida. Although it features several different species of animals, killer whales are SeaWorld’s signature attraction. The killer whales perform in shows before audiences at Shamu Stadium. On February 24, 2010, SeaWorld trainer Dawn Brancheau was interacting with Tilikum, a 29 year-old male killer whale, in a pool at Shamu Stadium. Ms. Brancheau reclined on a platform located just a few inches below the surface of the water. Tilikum was supposed to mimic her behavior by rolling over onto his back. Instead, Tilikum grabbed Ms. Brancheau and pulled her off the platform and into the pool. Ms. Brancheau died as a result of Tilikum’s actions. 1 In response to media reports of Ms. Brancheau’s death, Occupational Safety and Health Administration (OSHA) compliance officer Lara Padgett conducted an inspection of SeaWorld. Based on Ms. Padgett’s inspection, the Secretary issued three citations to SeaWorld on August 23, 2010. Citation No. 1 alleges a serious violation of 29 C. F. R. § 1910.23(d)(1), for failing to equip two stairways with standard stair railings on each side of the stairways. The Secretary proposed a penalty of $ 5,000.00 for this item. Citation No. 2 alleges two instances of a willful violation of the general duty clause, § 5(a)(1) of the Occupational Safety and Health Act of 1970 (Act), 29 U. S. C. §§ 651-678, for exposing animal trainers to struck-by and drowning hazards when working with killer whales during performances. The Secretary proposed a penalty of $ 70,000.00 for this item. At the hearing, the Secretary withdrew Citation No. 3, which alleged an other than serious violation of 29 C. F. R. § 1910.305(j)(2)(v), for failing to enclose outdoor electrical receptacles (Tr. 1232). SeaWorld timely contested the citations. The court held a nine-day hearing in this matter in Sanford, Florida, from September 19 to 23, 2011, and from November 15 to 18, 2011. SeaWorld stipulates the Commission has jurisdiction over this proceeding under § 10(c) of the Act, and that it is a covered business under § 3(5) of the Act (Tr. 7). The Secretary and SeaWorld have each filed a post-hearing brief.1 SeaWorld denies it violated § 1923(d)(1), cited in Citation No. 1. With respect to Citation No. 2, SeaWorld argues that the Secretary failed to establish the conditions at Orlando’s Shamu Stadium created a recognized hazard to the trainers working with the killer whales during performances. SeaWorld also argues the Secretary failed to offer a feasible abatement for the alleged recognized hazard. In the event the court finds the Secretary established a violation of § 5(a)(1), SeaWorld contends that the violation was not willful. For the reasons discussed below, the court affirms Item 1 of Citation No. 1, and assesses a penalty of $ 5,000.00. The court affirms as serious Instances (a) and (b) of Item 1 of Citation No. 2, 1 The court allowed a limited intervention on the part of Scott Brancheau, Marion Loverde, Charles Loverde, and Deborah Frogameni (respectively, husband, mother, brother, and sister of Dawn Brancheau) in the interest of protecting the surviving family’s right to privacy. Specifically, the intervenors sought to prevent the public disclosure of certain videotapes and photographs showing the death of Dawn Brancheau and its aftermath. Counsel for the intervenors attended the hearing, but did not present evidence or examine witnesses. The intervenors have not filed a post-hearing brief. 2 and assesses a penalty of $ 7,000.00. Background The first SeaWorld opened in 1964 in San Diego, California. Following its success, the original owners opened a second SeaWorld (since closed) in Aurora, Ohio. In 1973, they opened respondent’s facility, Sea World of Florida, LLC, in Orlando, Florida. The owners sold the parks to Harcourt Brace Jovanovich (HBJ) in 1976. In 1988, HBJ opened Sea World of Texas in San Antonio, Texas. HBJ sold its parks in 1989 to Busch Entertainment Corporation, a division of Annheuser Busch. In 2009, the Blackstone Group bought Busch Entertainment Corporation and renamed it SeaWorld Parks & Entertainment. SeaWorld Parks and Entertainment is headquartered in Orlando, Florida (Tr. 570-571). The logo for all of SeaWorld’s parks is a stylized killer whale. Killer whales (Orcinus orca) are large aquatic mammals of the order Cetacea. Cetaceans are mammals well-suited to aquatic life, including whales, dolphins, and porpoises. Killer whales are found in all oceans of the world. They live in long-term social groups, called pods. Killer whales are highly intelligent and their social system is organized in a complex, female-dominant hierarchy. Killer whales are “apex predators,” at the top of the food chain. They are called killer whales because they prey on other, larger whales, as well as other marine animals. Killer whales are not known to prey on humans in the wild (Exh. C-12; Tr. 843). Kelly Flaherty Clark began working for SeaWorld of Ohio2 in 1987 after graduating from Ohio State University with a degree in Animal Science (Tr. 134, 1509). Later she transferred to the Orlando park. At the time of the hearing, Ms. Flaherty Clark was the curator of animal training at SeaWorld (Tr. 33). As curator, Ms. Flaherty Clark oversees the trainers in four animal training programs: the Animal Ambassadors (made up of trainers who take trained animals to visit children in schools and hospitals, among other community appearances), the Sea Lion and Otter Stadium trainers, the Whale and Dolphin Stadium trainers, and the Shamu Stadium trainers (Tr. 34). Approximately 27 trainers work at SeaWorld (Tr. 38). Shamu Stadium Each SeaWorld park features a Shamu Stadium (Shamu was the name of the first killer whale 2 In this Decision, the court will refer to respondent SeaWorld of Florida, LLC, as “SeaWorld.” When referring to SeaWorld Parks & Entertainment or to one of the other SeaWorld parks, the court will use its full name. 3 acquired by SeaWorld of California) where the killer whales perform. Shamu Stadium is a large complex of pools, connected by gates, which house the killer whales. Some of the pools are open and visible to the general public, while others are enclosed and accessible only to SeaWorld personnel (Exh. C-2; Tr. 214). At the time of the hearing, SeaWorld was home to seven killer whales. (SeaWorld of California and SeaWorld of Texas each kept six killer whales. In addition, SeaWorld Parks & Entertainment had leased five killer whales to Loro Parque in Tenerife, Spain (in the Canary Islands), and one killer whale to MarineLand in Niagara Falls, Ontario, Canada.) (Tr. 3839). Tilikum has been at SeaWorld’s Orlando park since 1992, and is one of its star attractions. The average adult killer whale at SeaWorld weighs approximately 6,000 pounds and is approximately 17 feet long. Tilikum weighs approximately 12,000 pounds and is approximately 22 feet long (Exh. C-7). He is approximately 8 feet tall (Tr. 600). Tilikum is the largest killer whale in the collection of SeaWorld Parks & Entertainment. SeaWorld’s Training of the Trainers Newly-hired employees hoping to work with killer whales may wait years before achieving their goal. SeaWorld observes a strict hierarchy, under which employees must work their way up to a position where they are allowed to interact with a killer whale or whales. Ms. Flaherty Clark explained SeaWorld’s training program: When [prospective trainers] come to the stadium, the first thing we do is we teach people how to move about the stadium, we show them where our protocols are, and they are assigned a mentor from the very beginning, and the mentor is somebody who has been training killer whales for at least eight or nine years. . . Before a trainer ever approaches a pool with a killer whale, they have learned a lot about behavior, they have learned about killer whale natural history, they have learned about how to walk about the area on the different surfaces that we have, they have learned about how you carry buckets, and that’s all before approaching within ten feet of the pool. (Tr. 85-86). The mentor uses a check-off sheet to track the new trainer’s progress. At this level the new trainer is referred to as an associate trainer. The mentor records the training documents read by the 4 associate trainer and constantly assesses the associate trainer’s skill level. The associate trainers shadow various activity sessions. After eighteen months to two years, an associate trainer may advance to the trainer level, at which point he or she may experience the first close interaction with a killer whale (Tr. 87). Ms. Flaherty Clark defined a “close interaction” as “anywhere within five feet of the killer whale,” and distinguished it from a “tactile interaction,” during which a trainer may actually touch a killer whale (Tr. 88). Once a trainer advances to the senior trainer level, the senior trainer may have limited tactile interactions with designated killer whales. The highest nonmanagement level in SeaWorld’s hierarchy is senior trainer 1 (Exh. C-1, Section IX). Ms. Flaherty Clark emphasized only more experienced trainers are allowed to proceed beyond a close interaction: “[T]he closer you’re going to be getting to the killer whale, the more decisions you’re going to be making with the killer whale, more training is poured into you. And, you won’t be the person poolside making decisions, behavioral decisions with the killer whale until you’ve been interacting with killer whales for more than three years” (Tr. 88). Advances in trainer levels are approved by SeaWorld’s behavior review committee. The committee reviews and approves individual trainers for different interactions with the animals, and also approves the animals for certain interactions (Tr. 299). Any interaction a SeaWorld trainer has with a killer whale where the water is higher than knee-deep on the trainer is considered “waterwork.” Waterwork often requires the trainer to be immersed in the pool with the killer whale. “Drywork,” which is something of a misnomer, is any interaction a trainer has with a killer whale where the water is less than knee-deep on the trainer. During drywork a trainer may be completely out of the water, standing on the side of the pool. Drywork also includes interactions during which the trainer is on one of the slideout platforms located beneath the surface of the pool. Ms. Brancheau was engaged in drywork with Tilikum when she was lying down on the slideout, in several inches of water on February 24, 2010 (Tr. 124, 128). SeaWorld’s Training of the Killer Whales The foundation of SeaWorld’s training of the killer whales is operant conditioning. SeaWorld uses positive reinforcement to modify the killer whales’ behavior, increasing the frequency of desirable behavior and decreasing the frequency of undesirable behavior (Tr. 128-129). Trainers reinforce desirable behavior by rewarding killer whales with food (fish, Jell-O, ice), 5 physical rubdowns, or other activities the trainers believe the whales enjoy.3 When a killer whale engages in an undesirable behavior, the trainer ignores the behavior. In operant conditioning terms, this neutral response is referred to as a “least reinforcing scenario” (LRS) (Tr. 402). SeaWorld uses a technique called water desensitization, or de-sense, to acclimate the killer whales to the trainers’ presence in the pools with them. SeaWorld’s goal is to train killer whales to ignore trainers unless a trainer signals them to interact for a specific learned behavior. Ms. Flaherty Clark testified: When we’re first introducing ourselves to the animals in the water, we first train them to ignore us, to completely ignore us. No matter how much activity is going on in the pool, concentrate on the trainer, the trainer has control of you, or on the behavior you have been asked to do. And one of those behaviors is a perimeter swim. . . [W]e would start with a whale swimming past us and just ignoring us. We’re not in the water at all, or on the surface of the pool. We’re on a flat surface, and then we might go into ankle-deep water, and we would get a lot of reinforcement activity into them, not interacting with us, swimming past us. And, as we progress, we’re in the water with them, and then we’re trying to swim with them, and then we’re trying to distract them, and they’re still maintaining that perimeter. Then we’re going out to the middle of the pool and maintaining that perimeter. So they’re desensitized and we continue. (Tr. 126-127). Not all killer whales are amenable to water desensitization. Prior to Ms. Brancheau’s death, management personnel in the SeaWorld parks had determined that trainers should not perform waterwork with certain killer whales. SeaWorld of California suspended waterwork with killer whales Kasatka and Orkid in 2006, following incidents in which they were aggressive towards trainers (Tr. 159). 3 The witnesses tried to avoid assigning emotions to the killer whales, or asserting that they knew what the whales were thinking in any given set of circumstances. Under SeaWorld’s behaviorist model, SeaWorld’s employees focus on behavior only. “[I]nternal states, thoughts, perceptions, emotions, all those things that are unobservable are not useful” (Exh. C-12, p. 5, Report of D. A. Duffus, Ph.D.) Nevertheless, witnesses often spoke of the killer whales enjoying certain activities or becoming frustrated in certain circumstances. Jeffrey Andrews, SeaWorld’s expert witness, stated, “Sometimes it’s okay to be anthropomorphic. We try our best to avoid being anthropomorphic for fear of scrutiny. . . . [T]here are more and more studies that are being done nowadays that are looking into the deeper emotions of animals” (Tr. 1656). 6 SeaWorld did not allow trainers to engage in waterwork with Tilikum, but it did attempt a modified water desensitization with him. Ms. Flaherty Clark explained that senior trainers were performing “limited exposure waterwork with T ... Purchase answer to see full attachment