Nelson Tree Service, Inc.

Plain-English summary

A Nelson Tree Service apprentice briefly operated an aerial lift without wearing the required safety belt after returning from a break. His crew leader had watched him tie off earlier, was completing paperwork in the truck when the lift rose, and could not see from the ground whether the belt was being worn. Judge Nancy J. Spies found that the crew leader lacked actual knowledge of the violation. She also found no constructive knowledge because Nelson strongly emphasized its tie-off rule, regularly reminded the apprentice, and the incident lasted only a few minutes. Because the Secretary did not prove employer knowledge, the serious citation and proposed penalty were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.67(c)(2)(v)
• Outcome: Serious aerial-lift tie-off citation vacated; no penalty assessed.
• Key point: A supervisor's inability to detect a brief, unexpected departure from a well-communicated safety rule does not establish actual or constructive knowledge.

Full text (OSHRC public release)

))))))))))))))))))))))))))))))))))))))))))))),
Secretary of Labor, *
Complainant, *
*
v. * OSHRC Docket No. 98-0264
*
Nelson Tree Service, Inc., * (E-Z)
Respondent. *
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Appearances:

                 Helen Schuitmaker, Esquire                               Gary W. Auman, Esquire
                 Andrea Phillips, Esquire                                        Dunlevey, Mahan and Furry
                         Office of the Solicitor                                 Dayton, Ohio
                         U. S. Department of Labor                                       For Respondent
                         Chicago, Illinois
                                   For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                                          DECISION AND ORDER
                 Nelson Tree Service, Inc. (Nelson), specializes in clearing trees from commercial power

lines. Its employees often work from aerial lifts in order to trim trees overhead. Nelson contests
the one-item serious citation issued to it by the Occupational Safety and Health Administration
(OSHA) on January 23, 1998. The citation alleges that one of Nelson’s employees was not tied
off while working from the elevated bucket of an aerial lift. The citation resulted from a local fall
emphasis program inspection conducted by OSHA compliance officer Kenneth Korroll on
October 17, 1997 (Tr. 23). Nelson maintains that it was without knowledge of the violation. If,
however, a prima facie violation is shown, Nelson argues that the incident was the result of
employee misconduct. For the reasons stated below, Nelson’s first position is correct.
This case proceeded under the E-Z trial procedures of §§ 2200.201 - .212. The hearing
was held on June 26, 1998, in Chicago, Illinois. Both parties were represented by attorneys, and
each submitted argument in the case.
Citation No. 1

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Item 1:§ 1910.67(c)(2)(v)
It is stipulated that “Ste[phen] Krafft, the employee involved, was not wearing his safety
belt at the time of the inspection” (Tr. 5). The Secretary asserts that Krafft’s failure to be tied off
in the aerial lift was a violation of § 1910.67(c)(2)(v). The standard provides that “[a] body belt
shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.” To
prove a violation of the standard the Secretary must establish that (1) the standard applies to the
working conditions, (2) the terms of the standard were not met, (3) employees had access to the
condition, and (4) the employer either knew of the condition or could have known with the
exercise of reasonable diligence. Astra Pharmaceutical Prods., 9 BNA OSHC 2126, 2129 (No.
78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982).
This fall protection standard applies to an employee in an aerial lift. The terms of the
standard were not met when Krafft failed to tie off while elevated in the lift. Krafft was exposed
to the hazard. Elements (1) through (3) are established. Only element (4), i.e., that Nelson knew
or could have known of the violation, remains to be established as part of the Secretary’s prima
facie case. Kraft Food Ingredients Corp., 16 BNA OSHC 1393, 1399 (No. 88-1736, 1993).
Did Nelson Have Knowledge of the Violative Conditions?
The Secretary asserts that Nelson had knowledge of the violation. This is so, she argues,
because Nelson’s supervising crewleader, John Hawkins, knew that Krafft was not wearing his
safety belt, and Hawkins’s knowledge should be imputed to the company. Gary Concrete, 15
BNA OSHC 1051, 1055 (No. 86-1087, 1991) (foreman’s constructive knowledge imputed to
employer). Hawkins had the type of duties and responsibilities which could have supported
imputing his knowledge to the employer (Tr. 82, 97). Here, however, Hawkins had neither actual
nor constructive knowledge of the violation.

                                    No Actual Knowledge
   As was customary, Nelson employed a two-person crew to trim trees from the aerial lift.

On October 17, 1998, crewleader John Hawkins and apprentice Stephen Krafft trimmed trees in
DeKalb, Illinois. Hawkins trimmed trees from the aerial lift in the morning, and Krafft worked

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below on the ground. Hawkins wore and attached his safety belt to the bucket while he worked
from the aerial lift that morning. After lunch, the employees exchanged work positions: Krafft
worked from the lift and Hawkins worked on the ground. Hawkins watched while Krafft put on
and attached his safety belt when he began work that afternoon (Tr. 52-53, 81).
After Krafft had cut tree limbs for approximately an hour and a half, his chain saw ran out
of gas. Krafft brought the lift down to get the saw refueled. Hawkins met him on the ground and
took the saw around to the side of the truck to refuel it. At this juncture, Krafft took off his
safety belt and went into a nearby field to relieve himself (Tr. 84).
Hawkins finished refueling Krafft’s chain saw. Seeing that Krafft was not at the lift,
Hawkins correctly guessed why Krafft was absent. Hawkins placed the saw in the bucket of the
lift. Hawkins went back to the truck and sat in it to finish his weekly paperwork. While Hawkins
was in the truck, he heard the aerial lift’s motor begin to run. Hawkins knew by this that Krafft
was inside the lift and was operating it. When Hawkins left the truck, Krafft was already 10 to 12
feet in the air (Tr. 44, 85-86). From Hawkins position on the ground, it was not possible to see
whether Krafft was wearing his safety belt (Tr. 42, 78).
OSHA compliance officer Korroll stopped to investigate the worksite. As Korroll
approached closer, Stephen Krafft was in the bucket of the lift and Hawkins was watching Krafft
from the ground. According to Korroll, he asked Hawkins whether Krafft was wearing a safety
belt. Hawkins allegedly replied that he didn’t think so. Krafft then brought the lift down, either
because he was finished or because he was motioned down (Tr. 9-11).
As the bucket descended, Korroll saw that Krafft was not wearing his safety belt. When
Korroll asked Krafft why not, Krafft replied that he always wore his safety belt and had worn it
earlier that day. He stated that he had not put his safety belt back on when he returned to finish
the two small cuts left to do that day. Krafft estimated that the cuts took three minutes (Tr. 11,
55). Krafft and Hawkins quickly informed Korroll that Nelson had a workrule which required
them to wear safety belts at all times when elevated in an aerial lift. They also explained to
Korroll that the infraction was considered to be serious by them and by the company. The men
stated that they would be disciplined for violating the workrule (Tr. 26-27).

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Later, Krafft was reprimanded with a day off without pay. Hawkins was “written up”
because, as he explained, a supervisor has the ultimate responsibility to ensure that the other
worker wore his or her safety belt (Tr. 45, 95). Hawkins’s supervisor, general foreman Robert
Kuter, arrived at the site shortly after the OSHA inspector left, and spoke to the men about the
incident. Kuter was convinced that Hawkins had no knowledge of Krafft’s failure to wear his
safety belt before OSHA arrived. According to Kuter, if Hawkins had known, he would have
been more severely disciplined (Tr. 168-169).
Hawkins denies that he told the OSHA inspector that he did not think Krafft was wearing
a safety belt (Tr. 92). Both Hawkins and Korroll were credible witnesses. However, the
surrounding circumstances (such as the height of the bucket when Hawkins came out of the truck,
the fact that not even Korroll believed anyone could tell from the ground whether Krafft wore a
belt, the corroborative statements of Krafft, and the employees’routine use of the safety belts)
strongly suggest that Korroll’s memory was inaccurate on that point. Further, the brevity of the
incident lessened Hawkins’s opportunity to learn of the safety violation. The Secretary did not
introduce any corroborative written statements or contemporaneous notes to support the alleged
admission. The credible evidence supports that Hawkins did not have actual knowledge of
Krafft’s failure to wear his safety belt on October 17, 1997.
No Imputed Knowledge
Hawkins could not have known, with the exercise of reasonable diligence, that Krafft was
not wearing a safety belt. Nelson’s workrule required the use of safety belts on an aerial lift. At
the beginning of their employment, Nelson’s employees were tested regarding their knowledge of
the rule. Employees also participated in weekly safety meetings, although the particular topic was
not covered during a meeting attended by Krafft before the inspection. Of more significance to
the undersigned, however, was the fact that the safety belt workrule was strongly emphasized at
the crew level. Kuter and Hawkins stressed use of safety belts as they carried out their respective
supervisory duties. As part of Krafft’s ongoing apprentice training, Hawkins regularly reminded
Krafft to put on his safety belt when going up in the lift (Tr. 51, 71, 131).
The Secretary relies on Krafft’s disciplinary notice to show that this was not the first time
Krafft had been disciplined (Exh. R-3). On the disciplinary form Kuter circled “2nd notice of a

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violation.” Even if it were assumed that an earlier incident involved the use of a safety belt,
constructive knowledge is not established. A previous reprimand does not obligate a supervisor
thereafter to maintain 100 percent visual contact with the reprimanded employee.
Krafft, knowing of the workrule, of its importance to Nelson, and of the consequences for
disobeying it, impulsively took a short cut which affected his safety. Hawkins exercised
reasonable diligence even though he failed to detect the brief incident. Because the Secretary
failed to establish actual or constructive knowledge, the alleged violation of § 1910.67(c)(2)(5) is
vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a), Fed. R. Civ.P.
ORDER
Based on the foregoing decision, it is ORDERED that:
Item 1 of Citation No. 1, alleging a serious violation of § 1910.167(c)(2)(v), and the
Secretary’s proposed penalty for that item are vacated.

                                                   NANCY J. SPIES
                                                   Judge

Date: August 7, 1998

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