Davey Tree Expert Company and Florida Power and Light Company, Intervenor

Plain-English summary

A Davey Tree employee was electrocuted when a partly cut limb unexpectedly swung into a 240,000-volt transmission line. The Secretary alleged a general duty clause violation and proposed measures including topping, roping, notching, pulling, insulating or deenergizing the line, and additional training. The Commission affirmed the citation's vacatur. A majority found that the Secretary did not prove recognition of a hazard arising from the employees' method of removing the limb, and all three commissioners found that the Secretary failed to establish feasible, useful abatement beyond Davey's extensive on-the-job training and safety program. Commissioner Cleary disagreed with the majority's narrow hazard definition but agreed that the abatement proof was insufficient.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1) (general duty clause).
• Outcome: Citation vacated.
• Key point: A general duty clause case requires proof of specific feasible and useful measures the employer should have taken; a tragic error by experienced employees does not by itself establish that the employer's training or precautions were inadequate.

Full text (OSHRC public release)

Docket No. 77-2350

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 ( [email protected]
), 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.