Brian Hanley Logging

Plain-English summary

Brian Hanley Logging anchored three guylines from a skyline logging yarder to standing trees. The judge found that the trees could fall toward employees when stressed by the yarding operation, that both the logging industry and the employer recognized the hazard, and that using notched stumps or equipment was a feasible safer alternative. Because an earlier final citation involved the same practice and hazard, the general duty clause violation was affirmed as repeat. A $1,500 penalty was assessed.

Decision snapshot

• Cited standard(s): General Duty Clause, 29 U.S.C. § 654(a)(1)
• Outcome: The repeat violation was affirmed and a $1,500 penalty was assessed.
• Key point: Convenience does not excuse anchoring yarder guylines to standing trees when recognized industry rules prohibit the practice and safer anchors are available.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No . 02-1152
Brian Hanley Logging,
Respondent.

Appearances:

To bias B . Fritz, Esq., Office of the S olicitor, U. S. D epartment of Lab or, Kansas City, Missouri
For Com plainant

Brian and T amra Hanley, Brian Hanley Logging, Libby, Montana
For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                         DECISION AND ORDER
       Brian Hanley Logging (BHL) is a small skyline logging operation in Libby, Montana. On

June 5, 2002, BHL was working at the Alder Jam Timber sale when the site was inspected by the
Occupational Safety and Health Administration (OSHA). As a result of OSHA’s inspection, BHL
received a repeat citation on June 14, 2002. BHL timely contested the citation.
The citation alleges a repeat violation of § 5(a)(1) of the Occupational Safety and Health Act
(Act), 29 U.S.C. § 654, for anchoring three guy lines (safety lines) from the yarder machine to
standing trees. The citation proposes a penalty of $2,000. The citation is classified as repeat based
on a prior citation for the same alleged violation received on January 2, 2001, by BHL. The prior
citation was not contested and resolved through an informal settlement agreement.
The hearing in this case was held in Kalispell, Montana, on March 7, 2003. The parties
stipulated jurisdiction and coverage (Tr. 6-7). BHL is represented pro se by owner Brian Hanley and
his wife, Tamra Klein.
BHL denies the alleged violation and asserts that employees were not exposed to an unsafe
condition, and the Montana Logging Association permits anchoring of guy lines to standing trees
under some circumstances (Tr. 10-11).
 For the reasons discussed, a repeat violation of § 5(a)(1) of the Act is affirmed and a penalty
of $1,500 is assessed.
BHL’s Skyline Operation
BHL, a sole proprietorship, has engaged in skyline logging operations1 with a yarder since
1972. At the time of OSHA’s inspection, BHL had three employees; a yarder operator, loader
operator, and an employee to attach the lines on the carriage to the cut logs. Brian Hanley is the
owner of BHL and has been logging since 1967 (Tr. 4, 19, 88-89, 90).
A yarder also referred to as a jammer is a machine with a truck base and an approximate 30
foot boom or tower. BHL’s yarder which was manufactured in the 1950s is a multi guy line
machine. The yarder is used to drag cut logs uphill to an area where a loader machine can stack the
logs for transportation to the mill. A skyline with a floating carriage is attached to the cut logs
downhill and reeled uphill to the loader (Tr. 19-20, 139).
To prevent the yarder from tipping over when dragging cut logs uphill, guylines which are
made of 5/8 inch wire are attached to drums on the yarder, fed through the boom, and used to anchor
uphill from the yarder. A guyline is 250 feet long and is anchored approximately 100 feet from the
yarder. The yarder used by BHL has the capacity to run 5 guylines, but usually only 2 or 3 guylines
are used to anchor. The boom angle on the yarder is set at approximately 14 degrees. The proper
anchoring of the guylines counters the weight of pulling cut logs uphill from the opposite direction.
BHL maintains that approximately 80 percent of the time, it anchors the guylines to other pieces of
equipment, such as a bulldozer or tree stumps (Tr. 19-20, 63-64, 103, 107, 127, 139-141).
On June 5, 2002, OSHA safety compliance officers Gary Wild and Ken Casto initiated a
complaint inspection2 of BHL’s worksite at a timber sale referred to as the Alder Jam3 in Libby,
Montana. When the compliance officers arrived on site, Brian Hanley and the yarder operator were
performing repair work on the yarder and the loader operator was stacking logs.4 The yarder and

1
Also, referred to as line skidding logging operation (Tr. 19).

2
The items in the complaint were not verified and not the subject of the citation issued in this case (Tr. 70-71).

3
The name given by the timber owner to a section of land to be logged (T r. 71).

4
The loader op erator was David Peebler. The yarder ope rator was Robert Nelson (Tr. 94).

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loader were located on a dirt road. Three guylines from the yarder’s boom were attached uphill to
standing trees of approximately 50 to 60 feet in height (Exhs. C-4, C-7, C-8, C-9; Tr. 21, 38, 72, 105-
106).
During OSHA’s inspection, the yarder was not pulling cut logs uphill to the road area for
stacking. However, Hanley acknowledged that the yarder had been used to pull logs during the
preceding eight hours with the same anchorage to standing trees. The left guyline was anchored to
a standing tree approximately 25 feet from the dirt road on which the loader and yarder were located.
The center guyline was anchored to a standing tree 85 feet from the dirt road, and the guyline on the
right was anchored to a standing tree 40 feet from the road (Exh. C-10; Tr. 54, 56-57, 73, 105-106).
Previously, safety compliance officer Casto had inspected BHL’s worksite at New Fawn
Line, Libby, Montana, on November 1, 2001. As a result of his inspection, BHL received a citation
alleging a violation of § 5(a)(1) of the Act for exposing employees to the “hazard of being struck by
falling trees which were being used for yarder guyline anchors.” The citation was resolved by an
informal settlement agreement dated January 2002 in which the § 5(a)(1) violation and proposed
penalty of $750 were not contested, and BHL agreed to correct the condition. There is no dispute
that the prior citation became a final order in accordance with § 10 of the Act, 29 U.S.C. § 658
(Exh. C-11; Tr. 61-62, 75).
Discussion
Alleged Violation of § 5(a)(1)
The citation alleges that BHL violated § 5(a)(1) of the Act by anchoring three yarder guylines
to standing trees, which exposed employees to falling trees. Section 5(a)(1) of the Act requires that
each employer:
shall 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 employees.

    Section 5(a)(1) of the Act is referred to as the general duty clause, in that no specific OSHA

standard applies to the alleged hazard or unsafe condition. “The general duty clause, while intended
to protect employees from hazards that have yet to be addressed by standards, is not intended to

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replace standards as an enforcement mechanism.” Weldon Healthcare Center, 16 BNA OSHC 1052,
1060 (No. 89-2804, 1993).
There is no dispute in this case, and the record does not show, that a specific OSHA standard
addresses the same hazard and conditions as cited under § 5(a)(1) (Tr. 27). The Secretary’s
standards involving logging operations state that “this standard does not cover the construction or
use of cable yarding systems.” 29 C.F.R. § 1910.266(b)(1). Although the logging operation
standards states that “hazards and working conditions not specifically addressed by this section are
covered by other applicable sections of part 1910, no other specific standard is alleged applicable
and the record does not find any other standard applicable. See 29 C.F.R. § 1910.266(b)(3).
Therefore, to allege a violation under § 5(a)(1) for the conditions cited is appropriate.
To establish a violation of § 5(a)(1) of the Act, the Secretary must show that (1) there was
an activity or condition in the employer’s workplace that constituted a hazard to employees,
(2) either the cited employer or its industry recognized that the condition or activity was hazardous,
(3) the hazard was causing or likely to cause death or serious physical harm, and (4) there were
feasible means to eliminate the hazard or materially reduce it. Beverly Enterprises, Inc.,19 BNA
OSHC 1161, 1168 (Nos. 91-3144, 92-238, 92-819, 92-1257, 2000).
The Hazard
The Secretary argues that anchoring guylines for a yarder machine to standing trees poses a
potential hazard of falling the tree and exposing employees to the hazard of being struck by the
falling tree (Tr. 41, 63). Also, the failure of the anchor, due to the extra leverage posed by a standing
tree, creates a greater risk of tipping over the yarder and exposing the operator (Tr. 135-136). Instead
of anchoring to standing trees, the Secretary asserts that appropriate anchorage includes pieces of
equipment or tree stumps (Tr. 64).
Yarding is defined by the Secretary as “the movement of logs from the place they are felled
to a landing.” 29 C.F.R. § 1910.266(c). The purpose of anchoring the yarder is to prevent it from
tipping over from the forces generated in dragging a cut log uphill (Tr. 19).
A hazard is defined in terms of conditions or practices deemed unsafe over which an
employer can reasonably be expected to exercise control. Morrisson-Knudson Co./Yonkers
Contacting Co., A Joint Venture, 16 BNA OSHC 1105, 1121-1122 (No. 88-572, 1993). However,

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“there is no requirement that there be a ‘significant risk’ of the hazard coming to fruition, only that
if the hazardous event occurs, it would create a ‘significant risk’ to employees.” Waldon Healthcare
Center, 16 BNA OSHC 1052, 1060 (No. 89-2804, 1993). “[T]he existence of a hazard is established
if the hazardous incident can occur under other than a freakish or utterly implausible concurrence
of circumstances.” 16 BNA OSHA at 1060.
In this case, there is no evidence that any standing trees used as anchors by BHL to anchor
its yarder have ever fallen. However, Hanley concedes that he has observed trees “slump over” from
the force of the guyline (Tr. 124). Also, the record in this case shows a guyline completely
embedded in a standing tree used as an anchor (Exhs. C-4, C-7; Tr. 43, 46).
BHL does not deny that at the time of OSHA’s inspection the yarder was anchored to
standing trees. Although 3 guylines were secured to 3 standing trees, BHL claims that only 2
guylines were actually being used (Tr. 107). The tree on the left was not being used (Tr. 121).
BHL’s argument is rejected. The guyline to the standing tree on the left is shown wrapped
around the tree and, if force was applied in the opposite direction, the guyline would have functioned
as an anchor.
The record in this case establishes a hazard of anchoring guylines for a yarder machine to
standing trees. The hazard is that a standing tree may fall in the direction where the employees are
working from the pressure of dragging cut trees uphill. Two standing trees used as anchors which
stood approximately 60 feet high were less than 40 feet from the dirt road where the three employees
were working (Tr. 56-57). There is no dispute that anchoring guylines to standing trees may expose
employees to falling trees if the tree fails. Hanley agreed that “the tree was tall enough to reach and
strike the loader if it was right below it” (Tr. 122). He acknowledged that the loader continuously
moved along the dirt road, and it was possible that the loader was “directly downhill from the left
tree” which was only 25 feet from the road (Tr. 122). The parties agree that considerable stress or
force is placed on the anchor points from pulling cut logs uphill. A hazard is established when
anchoring yarder guylines to standing trees.
The Hazard Was Recognized
In order to establish a § 5(a)(1) violation, the Secretary must also show that the hazardous
condition was recognized either by the particular employer or its industry. Waldon Healthcare

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Center, 16 BNA OSHC at 1061. A hazard is deemed ‘recognized’ when the potential danger of a
condition or activity is either actually known to the particular employer or generally known in the
industry. Pepperidge Farm, Inc., 17 BNA OSHC 1993 (No. 89-0265, 1997).
The hazard of anchoring to standing trees as opposed to notched stumps or equipment is
recognized by the Montana Logging Association (MLA) who jointly, with the Montana Department
of Labor, published safety rules for logging operations. According to Section 3, D.(8) of the MLA
rules, “[s]tanding trees shall not be used for yarder guyline anchors” (Exh. C-5). The rules permit
“[n]otched stumps, deadmen, or items of equivalent holding power shall be used for anchors”
(Exh. C-5, Section 2, D(2)). Similarly, safety standards for logging operations published by the State
of Washington, Department Labor and Industries, states that “[g]uylines of portable spars or towers
shall not be anchored to standing trees if the unit is used for yarding as a head tree” (Exh. C-6, WAC
296-54-553(12)).
BHL, a 10 year member of the MLA, does not dispute that the association rules prohibit the
anchoring of guylines to standing trees (Tr. 104). He even keeps a copy of the MLA handbook in
his pickup truck (Tr. 105).
However, BHL understood from John Hanson, Montana Logging Association Field Safety
Representative, that under certain conditions when using multi-guylines, it may be safer to anchor
the guylines to standing trees. Hanson wrote a letter for BHL to that affect5 (Exh. R-1; Tr. 109-110).
Despite BHL’s belief that MLA permits exceptions to the prohibition against anchoring to
standing trees, the record in this case establishes a recognized hazard by the industry as reflected by
MLA and actually known by BHL. Hanley knew the rule and in fact testified that, at least 80 percent
of the time, he anchors his guylines to equipment or tree stumps (Tr. 103, 127). Hanley also agreed
that, as far as the MLA rules, he knew that on the day of OSHA’s inspection, he was not in
compliance (Tr. 122-123). A recognized hazard, as required by § 5(a)(1), is defined in terms of
preventable consequence of the work operation. Morrisson-Knudson Co./Yonkers Contracting Co.,
A Joint Venture, 16 BNA OSHC 1105, 1121-22 (No. 88-572, 1993).

5
The reco rd was left ope n for the parties to take a trial deposition of John H anson to sup plement the record in this
case (Tr. 114-115). The parties, however, decided not to take the deposition, and the record was closed.

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Also, the MLA written rules do not provide for exceptions. And, even if there is an
exception, the circumstances described by MLA safety officer Hanson does not apply in this case
(Exh. R-1). Hanson’s letter states that anchoring to standing trees is “not a common practice, but
is done at times if the anchoring tree is greater than two tree lengths from the yarder and as in the
case with many safety issues in the logging world, depends on the conditions at the time.” Hanson’s
letter concludes that the hazard would be minimal “if the standing trees are greater than two tree
lengths from the yarder” and the “guylines are [not] out lead with the skyline and/or there are [no]
poor angles utilized on the side guylines” (Exh. R-1).
Hanson’s conditions, even if accepted as exceptions to the MLA published safety rules, do
not apply in this case. The standing trees used by BHL as anchors at the time of OSHA’s inspection
were estimated to be 50 to 60 feet in height. The trees, however, were only 25 feet, 85 feet, and 40
feet from the road where the yarder and loader were located. Clearly, the anchor trees were not
greater than two tree lengths from the yarder. According to compliance officer Wild, he observed
the loader operator in a direct line of the standing tree, which was 25 feet from the road (Tr. 57).
Hanley agreed (Tr. 122).
Additionally, BHL had actual knowledge of the requirements. He has a copy of the MLA
rules. Also, the previous citation issued to BHL was based on not complying with the same MLA
rule as in this case (Exh. C-11). BHL did not contest the previous citation and entered into an
informal settlement agreement affirming the citation. BHL as part of the settlement agreed to
comply in the future. However, BHL admits that it tied off the guylines to standing trees in this case
(Tr. 111). BHL also admits that this violated the MLA rule against anchoring guylines to standing
trees (Tr. 123).
The Hazard Was Likely to Cause Serious Injury
There is no record that BHL has had an employee injured due to anchoring guylines to
standing trees. However, Hanley testified that he has observed standing trees “slump over” from the
pressure or force exerted by the anchoring (Tr. 124).
OSHA compliance officer Wild, who has inspected approximately 100 logging operations
in Montana, testified that he has investigated approximately 4 fatality accidents where employees

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had been struck from falling trees (Tr. 18, 57).6 However, none of the accidents involved anchoring
guylines to standing trees, but from cutting the trees (Tr. 69).
The lack of injuries is not dispositive of whether employees are exposed to an unsafe
condition. ConAgra Flour Milling Co.,16 BNA OSHC 1137, 1150 (No 88-1250, 1993), rev’d. in
part on unrelated grounds, 25 F.3d 653 (8th Cir. 1994). The criteria is not the likelihood of an
accident or injury, but whether, if an accident occurs, the results are likely to cause death or serious
injury. Waldon Healthcare Center, 16 BNA OSHC at 1060. There can be no issue that the hazard
of being struck by a falling tree approximately 60 feet in height can result in serious injury or death
to employees (Tr. 67).
Feasible Abatement
As an element of a § 5(a)(1) violation, the Secretary must finally show that the proposed
abatement will “eliminate or materially reduce the hazard.” See Cardinal Operating Company, 11
BNA OSHC 1675, 1677 (No. 80-1500, 1983). The Secretary must show that the abatement measure
reduces the risk of severe injury from the hazard.
The means for anchoring the yarder are set out in the MLA written rules, which require the
use of notched stumps or other suitable anchorage, such as equipment. BHL does not dispute that
notched stumps could have been used (Tr. 129). Prior to OSHA’s inspection, BHL admits that it tied
off the guylines to equipment and, sometimes to stumps, at other locations (Tr. 127).
Hanley testified that he made a conscious decision in this case to use standing trees in order
to avoid anchoring further up the hill (Tr. 128). Although BHL claims that most of the time (80
percent) it anchors its guylines to equipment or stumps, it felt that anchoring to standing trees gave
a better warning than a stump being pulled out (Tr. 103, 124, 127). BHL believes that anchoring to
standing trees in certain situations may be preferable to anchoring to notched stumps because it is
easier to see if the standing tree is being stressed and a potential problem (Tr. 127-128). He testified
that he “wanted to have something that I could visibly watch and monitor” (Tr. 129). Stumps are
not as observable from where the yarder operator is located from the road. Also, Hanley claimed that
to tie off, he would “have to go up to the upper road and drive down through the trees. And then,

6
Wild had heard from another compliance officer of an injury to an employee from anchoring the guyline to a
standing tree in Alaska (T r. 70). This inciden t is given little weight because of the hearsay.

                                                   -8-

of course, I would have been sitting there above the cut bank and would have to dive off into the
road and that’s not very fun” (Tr. 127).
“Under the general duty clause, if a proposed abatement method creates additional hazards
rather than reducing or eliminating the alleged hazards, the citation must be vacated for failure to
prove feasibility.” KoKosing Construction Co., Inc., 17 BNA OSHC 1869, 1875, fn. 19, (No. 92-
2569, 1996).
In this case, the reasons given by BHL for anchoring to standing trees appear to be more for
convenience and accessibility, as opposed to infeasibility or greater hazard, which affirmative
defenses were not asserted. Hanley acknowledges that stumps were available, and he provided no
explanation why a piece of equipment was not used (Tr. 129). Also, the hazard from pulling out a
stump was not shown to be greater than being struck by a falling tree. The stump would simply pull
out (Tr. 135-136). Also, in both situations, the same hazard to a yarder being tipped over would
exist if the tension to an uphill anchor was suddenly released (Tr. 136). However, the potential
hazard from being struck by a falling tree is greater than a pulled out stump. Feasible abatement by
anchoring to equipment or a stump is shown.
Therefore, a violation of § 5(a)(1) by BHL is established.
Repeat Classification
The violation of § 5(a)(1) is alleged as a repeat violation under § 17 of the Act. 29 U.S.C.
§ 666. A violation is considered repeat if, at the time of the alleged repeat violation, there is a
Commission final order against the employer for a substantially similar violation. Potlatch
Corporation, 7 BNA OSHC 1061, 1063 (No. 16183, 1979). If the violation involves a general
standard such as § 5(a)(1), the Secretary establishes substantial similarity by showing that violative
conditions result in substantially similar hazards. Stone Container Corp., 14 BNA OSHC 1757,
1762 (No. 88-310, 1990).
A review of the prior citation issued to BHL on January 2, 2001, establishes that the § 5(a)(1)
violation in this case involves the same conditions and hazards. The prior citation was also for
anchoring guylines to standing trees and abatement was compliance with the MLA rules. BHL did
not contest the prior citation and entered into an informal settlement agreement with OSHA (Exh.
C-11). The citation became a final order pursuant to § 10(a) of the Act.

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BHL agrees that “this current charge is identical” (Exh. C-2, response no. 6). BHL does not
dispute the similarity. A review of the citations shows that the only differences between the citations
are the different inspection dates and locations of the violations, which are irrelevant factors in
determining a repeat classification. Therefore, the record establishes that the citation in this case was
properly classified as repeat.
Penalty Considerations
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
BHL is a small employer with 3 employees at the time of the OSHA inspection. BHL is
therefore entitled to credit for size as a small employer. However, BHL is not entitled to credit for
good faith and history because of the prior serious citation for the same alleged hazard and BHL’s
failure to comply.
A penalty of $1,500 is reasonable for violation of § 5(a)(1). Two employees and owner
Hanley were exposed to the hazard of falling trees for 8 hours. Hanley made a conscious decision
to anchor to standing trees for convenience. Although not applicable in this case, he believed that
in some circumstances, it was permissible by the MLA to anchor to standing trees.
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) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED:
1. Citation 1, item 1, alleged violation of § 5(a)(1) of the Act, is affirmed as repeat and
a penalty of $1,500 is assessed.

                                                     /s/
                                                     Ken S. Welsch
                                                     Judge

Date: May 8, 2003

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