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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
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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.
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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
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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:
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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.
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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.
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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
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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).
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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 …
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