SECRETARY OF LABOR,
Complainant,

v.

DAVEY TREE EXPERT COMPANY,
Respondent,

and

FLORIDA POWER AND LIGHT COMPANY,
Intervenor.

OSHRC Docket No. 77-2350

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

The Secretary of Labor has alleged that Davey Tree Expert Company violated 29 U.S.C. § 654(a)(1), section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  That section requires that each employer "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. . . ."

Two Davey employees were felling tree limbs along the right-of-way of a high-voltage electrical transmission line.  After examining a certain tree and cutting a number of its limbs, they began to cut a limb on the side of the tree closest to the power line.  The limb grew upward and back, however, so most of it leaned away from the power line.  They surveyed the situation and concluded that the limb would fall away from the line.  To keep the limb from falling into dense brush where they feared there might be rattlesnakes, the employees "notched" the limb and pulled it to make it fall parallel to the wires.  The limb did not fall the way they expected, however.  One of the branches growing off the limb caught on another branch, the chain saw jammed, and the limb was not cut cleanly.  It tore, causing it to swing around into the wire, electrocuting the employee holding the saw.

Administrative Law Judge Paul L. Brady vacated the citation because he found that the accident "resulted from the method used by the employees in trimming the tree" and found no proof that the method used was shown to be a recognized hazard.  Instead, the judge found that the method used was an accepted practice within the industry.  He found no evidence that, when the employees began trimming the limb, it was likely to hit the power line.

The Secretary argues that the judge incorrectly identified the hazard.   He argues that the hazard is electrocution caused by a limb touching the high-voltage line and that this hazard is recognized by Davey and its industry.

To establish that an employer violated the general duty clause, the Secretary must do more than show that a hazard was present.  He must also show that the hazard was recognized by the employer or the employer's industry.  See Phillips Petroleum Co., 84 OSAHRC __/__, 11 BNA OSHC 1776, 1984 CCH OSHD ¶ 26,783 (No. 78-1816, 1984).  The hazard, however, must be preventable so as to render the employer's duty the achievable one intended by Congress.  See National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265-1267 (D.C. Cir. 1973).  The Secretary's broad, generic definition of the hazard as electrocution caused by a limb touching a high-voltage line does not achieve this objective.  Such a definition does not apprise Davey of its obligations and identify conditions or practices over which the employer can reasonably be expected to exercise control.  In order that Davey may properly be apprised of its duty under the Act we define the hazard in this case as electrocution from a tree limb contacting a power line because of the actions of employees in removing the limb.  To establish the "recognition" element of a general duty clause violation, the Secretary therefore had to establish that either Davey or its industry recognized a hazard from the process by which the employees removed the limb.  Chairman Rowland and Commissioner Buckley agree with Judge Brady that the Secretary failed to show this.[[1/]]

All three Commission members agree that the Secretary failed to establish the feasibility and likely utility of the abatement measures he suggested.  A violation of the general duty clause cannot be sustained unless the Secretary is able (1) to establish the type of employer conduct necessary to avoid citation under similar circumstances and (2) to demonstrate the feasibility and likely utility of such conduct.  See Gearhart-Owen Industries, Inc., 82 OSAHRC 66/A2, 10 BNA OSHC 2193, 2195-96 1982 CCH OSHD ¶ 26,329, p. 33,335 (No. 4263, 1982).  In our view, the Secretary has not established what Davey should have done that it did not do.

The Secretary argues that several feasible methods of abatement were shown to exist.  He suggested various methods to protect employees, including "topping" the limb (cutting the end to shorten it), "roping" or "crotching" the limb (securing it to prevent it from falling the wrong way), notching the limb before cutting to make it fall in the desired direction, pulling the limb in the desired direction, using mathematical tables or formulae to determine the weight of the limb, putting insulation on the lines, and deenergizing the lines.  We find that the last two of these measures, putting insulation on the lines and deenergizing the lines, were not shown to be feasible.  There is no evidence that there is any insulating material available to Davey that would prevent electrocution by a 240,000 volt line, and there is expert testimony by an electrical engineer to the contrary.  The Secretary's assertion that the line should have been deenergized was not shown to be feasible.  This job lasted from 4 to 6 months, during which many limbs close to the power lines were cut.  The power lines supplied power to over three million people, who would have been without electricity while the lines were deenergized.

As to the other measures suggested by the Secretary, we note that employees cannot be expected to use these protective measures unless they determine that a limb is in a position where it could touch a power line when it is felled.  What the Secretary's argument amounts to, therefore, is that Davey's employees should have been better trained to recognize that the limb could hit the power line. Contrary to the Secretary's claim, however, the record establishes that Davey's training and its safety program were adequate.  Davey gave its employees on-the-job training which included an apprenticeship.  This training gave them experience in judging where a limb will fall and included the use of such tree-trimming techniques as "topping," "roping" or "crotching," "notching," and "pulling" limbs to influence their fall or to prevent them from falling a particular direction; on this job alone, they had topped 40 to 50 limbs and had roped or crotched 80 to 90 limbs.  Each crew held weekly tailgate safety meetings and was visited by a safety supervisor at least twice a week.  Davey's safety rules were enforced by an oral reprimand for the first violation, a written warning for the second, and discharge for a third offense; but foremen could and did summarily discharge employees for safety violations. Some trimmers and foremen received an additional twenty hours of classroom safety instruction annually.  Furthermore, Davey pays its insurer $71,000 per year in addition to its premiums to have the insurer's safety representatives inspect Davey's crews.

The Secretary argues that Davey's training program was inadequate because its employees should have been given formal classroom training to determine how limbs will fall.  All the knowledgeable witnesses testified, however, that on-the-job training and experience to the only way to gain that ability, and there is no evidence that classroom training is superior to Davey's on-the-job training.  The Secretary also suggested that employees be taught to use mathematical tables and formulae to estimate the weight of tree limbs.  The record does not show, however, that knowing the weight of a limb would be any help to employees in determining where it will fall.

Finally, these were experienced trimmers.  The foremen had 15 to 16 years' experience trimming trees along power lines and had been a foremen for 8 to 9 years.  His assistant had 12 years' experience.  They had been extensively trained.  In the 8 or 9 years they had worked as a team, neither had had an accident.  So far as this record shows, Davey could only rely on the judgment of experienced employees that the limb would not hit the power line.  That their judgment turned out to be wrong and had tragic consequences does not, by itself, prove that Davey should have done more.

Accordingly, the judge's vacation of the citation is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  MAR 30 1984

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] Commissioner Cleary disagrees with this definition of the recognized hazard.  Although, for the reasons indicated in the text of the decision, Commissioner Cleary would find it unnecessary to reach the recognized hazard issue, he concludes it is patently untenable to hold that there is no recognized hazard when employees cut tree limbs where there is a possibility of contacting live power lines.  Davey Tree's own training program demonstrates that this company recognized that tree trimming in proximity to power lines is a hazardous undertaking.  On a more general level, Commissioner Cleary would also point out that overly narrow definitions of hazards emasculate section 5(a)(1) because they require that the particular circumstances of an accident be predictable regardless of whether the hazard can be alleviated by training, procedure or otherwise.