Nelson Tree Services, Inc. (ALJ decision, May 9, 1994)

Plain-English summary

Nelson Tree Services cleared trees around utility lines at a worksite in Hanoverton, Ohio. A leaning tree fell prematurely while a Nelson employee passed through the work area, fatally injuring the employee. The judge found that the tree-care industry and Nelson's own safety manual recognized the danger of workers entering a tree's fall zone during felling. Employees nevertheless passed through the zone while trees were being notched, and workers routinely cut notches deeper than the company's one-third-diameter rule. Keeping uninvolved workers clear and limiting notch depth were feasible measures that would reduce the hazard. The general duty clause violation was affirmed with a $1,875 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1).
• Outcome: Affirmed. The recognized tree-felling hazard violation and $1,875 penalty were upheld.
• Key point: An employer must enforce controls that keep uninvolved workers outside the fall zone from the start of felling and must follow safe notch-depth practices.

Full text (OSHRC public release)

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uWED STAVE8W AMERICA
OccUPiUlONAL SAFETY AND HEALTH REVIEW COMMISSION 12U N. Spew BouIevatd
Room 2so
Denver, colomdo 802w-3s82

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SECRETARY OF LABOR,
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Complainant
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v. I
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NELSON TREE SERVICES, INC.,
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I OSHRC
DocKEr
I NO. 93-1665
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THE UTILITY WORKERS UNION OF
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AMERICA (AFLcI0) - LOCAL a452)
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Authorized Empbycc
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Representative.
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Before: Administrative LAWJudge James H. Barkky

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DECISION AND ORDER

This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C Section 651 et seq.; hereafter called the “Act”).
 Respondent, Nelson Tree service, h (Nelson) at all times relevant to &js atian, m&taind a worksite at 29756Route 30 west, Hanwerton, Ohio, where it was enm in fehg trees for public utility line clearancc~, Nelson admits it is an employer engaged i,n a business afkcting commerce and is subject to the requirements of the Act.
On March 22, 1993 the Occupational safety and Health Administration (OSHA) conducted an inspection of Nelson’s Hanoverton worksite (Tr. 103). As a result of the ~@OQ Nelson was issued citations, together with proposed penalties, allegins viola- tions of the Act. By filing a timely notice of contest Respondent brought this proceed@ before the Occupational Safety and Health Review Commission (&nmission).
Nelson subsequently withdrew its contest to all items other than “serious” citation 1, item 1, which alleges violation of 95(a)(l). On Nwember 1748, 1993, a hearing was held in Ciicinnati, Ohio, on the contested issue. The parties have submitted brief&and this matter is ready for disposition #Uled Violatiou
Citation 1, item 1 states:
Section 5(a)(l) of the Occu@ional safety and Health Act of 197Q The emplayer did not furnish employment and a place of employment which were free from rea@& hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to:

On March 19,1993, employees at 29756 Route 30 West, were subjected to the hazards of either-being struck by the tree trunk or being caught between the tree trunk and the stump and/or ground resulting in tictures, crushing of body pars, multipk intemal injuries or death due to the inadvertent falling of the tree trunk whik felling an&or moving about in the work ar;ta

Among other methods, one ftasibk and acceptable method to ccxrcct the hazard is to follow ANSI 2133.14988 National Standard Safety Requirement of the Tree Cart Opcr- ations-Pnmhg,T rimming, Repairing, Maintai&~ and Removing Trees, and Cutting Brush - Safety Requirements, Section 8 - Safe Work Procedures, Part 8.!5- Fell& ‘8
(a) Before beginning any felling operatiom care- consider the tree and surroundingarea for anythingthat may cause trouble when the tree fslls, the shape and lean of the tree, wind force and direction, decayed or other weak spots and the location of other persons.
@) Each tree worker shall be instructed as to exactly what he/she is to do. Keep a w&em mt directly involved in the felling operations clear of the work area (0 &lude theareathctreecouldfan).

(c) ‘IYhcdepth or penetration of the notch shall be about one-third the diameter of . thetree.

(d) me opening or height of the notch shall be about 2-l/2 inches (63.5nm) for each fit (0.3 meter) of the tree’s diameter.

Alleged Violation of Ham
The Commission has held that: .
In order to prove a violation of section S(a)(l) of the Act, the Secretary must shuw thatz (1) a condition or activity in the workplace presented a hazard to 811 empbyee, (2) the hazard was recognized, (3) the hazard m likely to cause death or serious physical harm, and (4) a f-l&k means existed to eliminate or materially reduce the be The evidence must shuw that the employer knew, or with the exercise of reasonable diligence could have known, uf the violative coIlditionsm(citationro??zibed)

&mmyqfLubarv.TrrmpaSh@yan&I
nc., 15 BNA OSHC 1533, 1992 CCH 06HD
W,617 (Docket Nos. 8M60,8&469,1992).
Nelson is charged with failing to eliminate the hazard to employees of being struck by, or caught beneath an inadvertently, of prematurely, felled tree.
Dodd BIZOVM,OSHA area director, test&d that in the logging industry, a tree
being felled is considered hazardous from the time it is Bst notched pr. 233,273). The wind, a lean, or a hidden defect such as root rot may cause a tree to fall uncqcctedly at any time during the fact cut or back cut, endangering persons within two tree kqths - ur. 232-35, 26869; Exh. C-26, p. 52, C-27, p. 53). The American Natbnal Standard Institutq Inc, (ANSI) consensus standard fi tree care operation& 2133.1-x)8& recognks the same hazards as the logging industry;in order to protect wurkers from the danger of prematurely fentd trees, g8.5 warns fellers to consider the wind, the tree’s lean and any decay or weak spots prior to felling, and mandates that the work area be kept clear of all workersnot directly invoked in the felling operation (Tr. 108-11,117; Exh. C- 21). Nelson’s safety manual also implicitly acknowledges the hazard presented to

3 workers by prematurely felled trees, mctig the r&Ant sections of the ANSI S-W verbatim (Tr. 6366; Exh. C-22).
The ftcofd establishes that being struck by a prematureiy felled tree is recog&ed a a &arc! in the tree felling industries, and was specifiw recognized by Nelson. me eyidence further establishes that the cited hazard is likely to result in serious physical harm or death. The fidity which kd to the citation in this matter redted from a lea&g tree falling prematurely while a Nelson employee passed through the work area (Tr. 35).
The Secretary suggests, as a possible abatement measure, that Nelson follow ANSI
saSety requirements contained in 084 pciiicaliy, keeping aIl woikers not directly imrohred in the felling operation clear of the area in which the tree could Ml, 81bd limiting the sti of the notch to “about one-third the diameter of the tree? The read establishes that the suggested abatement methods arc f-l&W, those work rules arc already contained in Nelson’s safety manual s26 C) and E). The Secretary has also established that the suggested abatement methods would eliminate or mate&Q reduce the cited hazard.*
Requiring workers not actually felling a tree, who may not be fU on felling conditions, to stay clear of the area in which felling operations are taking place, would plainly reduce the chance of injury to those workem. Though Nelson’s work rides require workers to be kept clear of the fall mne, that rule was not edbreed until the notch was compkte and the back cut initiated (Tr. 76, 86, 123-26, 296, 323). Employees regularly passed through the fall mne during facing or notching (Tr. 36).
The evidem also establishes that limiting the size of the notch would reduce the danger to workers uf being struck by a prematurely felled tree. Brunrvsh’stated that in a leaner, or a tree with hidden defects, removal of too much wood in the campressbn ard i.e. the notch, can cause the trunk to snap and the tree to f&IIprematurely ur. 2470

1 The commission has held that the Secretaryneed pm only that the abatement method wumld mdtux the hazard, Lc, the (preventable amsquenaP of tbc work operation, RUNthat the IMum to utilize a suggested abatement method wnstitutes a reapbed hazard in respondent’s industry. MiMs~-Rw&en Co., Inc/Yii C&&act& Ca, 16 BNA OSHC 110!5,1121-22,1950 CCH 06HD m,O4& p. 4&279 (Na 88-572,1993).

4 a). Rufia Van Bossuyt, an artmist tatiQhg for Nelson, admitted that mtcm am
&cts its integrity,and that the larger the note& the greater the effect (Tr. 36869). -. Msods s&y r&s direct, and Nelson’s employw were instructedto notch trees m appraxim&Q on&ird of their diameter (“ha68, 95). However Nelson’s empbyees be&wd the rule provided sufficient latitudeto allow them to notch one-half or more tbe diameter of a tree, and the one-third mark was bequently exceeded (Tr. 203-04,209,3M, 3W). The tree invoh~edin the accident which instigated the OSHA inspection was ‘. notched to more than one-half the diameter of the trunk (Tr. 3344, 106-07, 27679; E&.

The Secretaryhas established the cited violation. penaltv
Section 17(j) of the Act provides:
The Commissionshall have authority to assess all civil pe~~~Itiesprwided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of tbe employer being chug& the gravity of the violation, the good faith of tbe employer, and the history uf previous violations.

The Commissionhas fbrther instructed=

T&se f&tori are not neces&ly accorded equal weighi Generany speak& the gravityof 8 violation is the primaryelement in the penalty assessment. Zkibityh&s., 15 BNA OSHC 1481,1483,1992 @CHOWD 1129385 p. a033 (No. 8&2691,1992). The gravity of a paHicular vioMon depends upon such matters as the number of employees exposed, the dura- tion of the exposure, the precautions taken against injury, and the likeli- hood thatany injurywould result. LA. Jq 15 BNA OSHC at 2214,195X3 CCH 06HD at p. 41,032

gravityof thisviol&on was high. ‘Ibw employees were cqosed, one of whichwas fWIy injured. The gravitybased penalty was reduced for good faith ahd history, resulting in a proposed penalty of $1,875.00 (Tr. 128). There was no evidence relating to size. Respondent did not contest the proposed penalty amount. The proposed penalty of
$1,8’75.00is found to be appropriate.
 of Fact and Conclusions of Law
AU ihdhg~ of fact and conclusions of law relevant and neceswy to a detemka- tion of the collttsted issues have been found tpcciayI and appear in the decision ah. See Rule 52(a) of the Federal Rules of Civil Procedure.

1l Citation 1, item 1 is afhxd, and a penalty of $1,875.00is ASSESSED.

Dated: April 1, 1994

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