Townsend Tree Services Corporation

Plain-English summary

Townsend Tree Services employees changed blades and a belt on a remote tree trimmer, then energized the machine to test the replacement parts. The foreman moved within three feet of the rotating blades and died after the boom moved and the blades struck him. The judge held that the lockout/tagout standard applied to the servicing activity even though the trimmer resembled off-road construction equipment. Four energy-control-program and training items were vacated because the machine's energization was not unexpected during either the shut-down repair phase or the deliberate testing phase. The item requiring employees to be safely positioned or removed before testing was affirmed because the foreman entered the blade danger zone and the company had no work rule prohibiting that conduct. A $5,000 penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.147(c)(1); 29 C.F.R. § 1910.147(c)(4)(i); 29 C.F.R. § 1910.147(c)(7)(i)(A); 29 C.F.R. § 1910.147(c)(7)(i)(B); 29 C.F.R. § 1910.147(f)(1)(ii)
• Outcome: Four lockout/tagout program and training items were vacated, while the testing-area item was affirmed with a $5,000 penalty.
• Key point: When equipment must be energized for testing after servicing, employees must first be safely positioned outside the machine's danger zone.

Full text (OSHRC public release)

Townsend Tree Services Corporation, Docket No. 04-1157

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant,  

v.

OSHRC Docket No. 04-1157

Townsend Tree Services Corporation,

Respondent.

Appearances:

Jamison Poindexter Milford, Esq., U. S. Department of Labor, Office of the Solicitor,, Kansas City, Missouri

For Complainant

John B. Renick, Esq., McMahon, Berger, Hanna, Lanihan, Cody & McCarthy, St. Louis, Missouri

For Respondent

Before: Administrative Law Judge Nancy J. Spies

DECISION AND ORDER

On March 30, 2004, Paul Ney, a foreman for Townsend Tree Services Corporation (TTS),
was killed in a horrific accident when he came into contact with a piece of tree trimming equipment.
On June 4, 2004, the Secretary issued a citation following an investigation of the fatality conducted
by Occupational Safety and Health Administration (OSHA) compliance officer Kevin J. Kolesa.
TTS contests the citation, which alleges serious violations of five standards of the Occupational
Safety and Health Act of 1970 (Act).

The citation alleges violations of five different sections of § 1910.147, the lockout/tagout
(LOTO) standard. Item 1 alleges a violation of § 1910.147(c)(1) for failing to establish an energy
control program. Item 2 alleges a violation of § 1910.147(c)(4)(i) for failing to develop, document,
and utilize procedures for the control of potentially hazardous energy. Item 3a alleges a violation
of § 1910.147(c)(7)(i)(A) for failing to provide training in the recognition of applicable hazardous
energy sources, the type and magnitude of the energy available, and the methods and means
necessary for energy isolation and control. Item 3b alleges a violation of § 1910.147(c)(7)(i)(B) for
failing to instruct each affected employee in the purpose and use of the energy control procedure.
Item 4 alleges a violation of § 1910.147(f)(1)(ii) for failing to remove employees from the equipment
area.

A hearing was held in this matter on February 8 and 9, 2005, in St. Louis, Missouri. The
parties have filed post-hearing briefs. TTS contends that the LOTO standard is inapplicable to the
Timberland Trimmer, the vehicle at issue. TTS argues that items 1, 2, 3a, and 3b are duplicative.
TTS asserts the affirmative defense of employee misconduct. TTS also argues that Kolesa’s OSHA
inspection was inadequate and prejudicial to the company.

For the reasons discussed below, items 1, 2, 3a, and 3b of the citation are vacated, and item 4
is affirmed.

Background

Since 1945, TTS has been in the business of tree clearing. TTS employs approximately 1,800
employees in five states, with its home office in Parker, Indiana. In March 2004, a TTS crew
consisting of foreman Paul Ney and ground man Bobby McMahan was working in Steelville,
Missouri, reclearing the right-of-way under and beside an existing overhead electric distribution
facility (Exh. J-1).

Ney had worked for TTS since April 3, 1986, and McMahan had worked for
the company since May 5, 1996.

On March 30, 2004, Ney and McMahan were on Czar Tower Road, a rural area near
Steelville, Missouri. Their assignment at that location was to clear and trim trees, brush, and other
debris. Purn Gilliam, a hired hand for the property owner where the TTS crew was located, was also
present. At approximately 11:30 a.m., they changed the blades and the belt on a Timberland Remote
Trimmer. The trimmer is a four wheel drive cab tractor with an articulated boom on one side and
a bulldozer blade on the opposite side. The trimmer is 54 feet long with its boom extended to the
rear. Five circular saws, 15 inches in diameter, are mounted toward the far end of the boom on an
attached wand. Before changing the blades and belt, the crew lowered the boom to a horizontal
position. The machine was not on. The cab of the trimmer was locked and the key was in the
ashtray of the company pickup truck.

After Ney and McMahan finished changing the belt and blades, they moved to the front of
the trimmer near the cab. Ney unlocked the cab, entered it, and started the trimmer. He engaged
the blades and exited the cab with the machine still running. Ney walked to the rear of the trimmer
near the rotating blades. Ney shouted at McMahan to get into the cab and accelerate the engine so
as to speed the rotation of the bleeds. McMahan did so and was exiting the cab when he heard
Gilliam yell to Ney to sit down.

Gilliam had seen Ney squat down within 3 feet of the rotating blades. He saw the trimmer
jerk and the blades made contact with Ney on his face, neck, and chest. Ney started to walk away
when Gilliam yelled for him to sit down and ran over to him. McMahan went to Ney with the intent
of providing first aid but did not do so when he saw the extent of Ney’s injuries. McMahan went
to the pickup truck and radioed TTS employee Norm Wilkinson, who in turn called 911. Ney was
dead when the emergency medical team arrived. McMahan later stated he believed that he had
bumped the steering wheel while exiting the cab, causing the boom to swing into Ney (Exh. J-1).

Kolesa arrived at the scene of the fatality the next day, on March 31, 2004. He held an
opening conference with TTS management personnel and took photographs of the site. Kolesa did
not hold a closing conference with (TTS) (Tr. 117-118). The Secretary issued the citation at issue
on June 4, 2004.

Adequacy of Kolesa’s Inspection

TTS argues that Kolesa’s inspection was inadequate because (1) his testimony was
“incredible, inconsistent, and unreliable” (TTS’s brief, p.6), and (2) he failed to hold a closing
conference with the company. TTS’s argument is rejected on both counts.

TTS spends a considerable portion of its brief detailing perceived inconsistencies in Kolesa’s
testimony. Without passing judgment on these alleged inconsistencies, the undersigned notes that
her findings of facts are based upon the stipulated facts contained in Exhibit J-1 and the testimony
of the other witnesses. The one item that is affirmed (item 4) was decided without regard to Kolesa’s
testimony. Therefore, TTS’s allegation that his testimony was inconsistent and unreliable is
irrelevant to the determination of the items.

Kolesa admitted that he did not hold a closing conference with TTS (Tr. 40).
Section 1903.7(e) requires the compliance officer to hold a closing conference “[a]t the conclusion
of the inspection.” While omission of the conference is not condoned, TTS has not shown that it was
prejudiced by Kolesa’s failure. Such a showing is required to invalidate the inspection in its entirety.
Kast Metals Corp., 5 BNA OSHC 1861 (No. 76-657, 1977). In the present case, TTS has not shown
that it could have provided any new information that would have altered the course of the
proceedings. Kolesa’s conduct of the inspection was adequate and not prejudicial to TTS.

The Citation

The Secretary has the burden of proving her case by a preponderance of the evidence.

In order to establish a violation of an occupational safety or health standard,
the Secretary has the burden of proving: (a) the applicability of the cited standard, (b)
the employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation ( i.e., the employer either knew or, with the exercise of reasonable diligence
could have known, of the violative conditions).

Atlantic Battery Co., 19 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

Applicability of the LOTO Standard

TTS’s central argument is that the LOTO standard does not apply to the Timberland Trimmer
at issue. The company argues that § 1910.147 is a general industry standard that does not apply to
equipment such as mobile cranes and bulldozers, which the trimmer resembles. The scope section
of the LOTO standard (at § 1910.147(a)(ii)(A)) specifically excludes construction employment. TTS
argues that the LOTO excludes construction employment because of OSHA’s concern that
equipment and vehicles routinely used in construction present unique hazards not addressed in
§ 1910.147.

In support of its position, TTS cites the preamble to the LOTO standard, in which the
Secretary states (54 Fed. Reg. 36644 (September 1, 1989)):

Of additional concern in the imposition of regulations in the construction industry is
the uniqueness of the earthmoving equipment, such as lattice boom mobile cranes,
front-end loaders, bulldozers, scrappers and dump trucks. As opposed to maintenance
on automobiles, buses and over-the-road trucks where removal of the ignition key
usually insures that the engine cannot be started and the vehicle may be worked upon,
some of the maintenance of the above earthmoving equipment involves the
positioning of components, such as buckets, blades and machine body parts, which
present extraordinary hazards to maintenance or servicing personnel. These hazards
and the means to minimize the potential for injury to employees involve additional
considerations, which were not adequately addressed during the course of the
rulemaking proceeding.

The Secretary counters that § 1910.147 is a performance-based standard, and does not apply
to individual pieces of equipment. Because TTS was not engaged in construction employment, as
defined in § 1910.12,

there are no grounds, the Secretary contends, for exempting the trimmer from
the LOTO standard.

The undersigned agrees the language in the preamble supports TTS’s contention that the
LOTO standard was not intended to apply to an off-the-road vehicle such as the trimmer. The
Secretary is correct, however, that the language of the LOTO standard itself provides for no such
exemption. “[W]hen a statute speaks with clarity to an issue judicial inquiry into the statute’s
meaning, in all but the most extraordinary circumstances, is finished.” Estate of Cowart v. Nicklos
Drilling Co., 112 S. Ct. 2589, 2594 (1992). The Secretary rightly points out that it is the nature of
the work, and not the type of machine or equipment, that determines applicability of the LOTO
standard. While it seems inconsistent that the LOTO standard would be inapplicable to an off-the-road vehicle one day while it is used for construction employment, and then would apply the next
day when the vehicle was used for non-construction work, that is the plain meaning of the language
of the standard.

The application section of the standard states that § 1910.147 “applies to the control of
energy during servicing and/or maintenance of machines and equipment.” Section 1910.147(a)(2).
In the instant case, the TTS employees changed the blades and belt of the trimmer, which is clearly
a servicing and maintenance activity. The testing of the machine after the actual servicing and
maintenance is completed is part of the servicing and maintenance process. It is determined that the
LOTO standard applies to the trimmer at issue.

Items 1, 2, 3a, and 3b:

Alleged Serious Violations of

§§ 1910.147(c)(1); (c)(4)(i); (c)(7)(i)(A); and (c)(7)(i)(B)

The Secretary alleges that TTS violated four subsections of the LOTO’s section regulating
the energy control program. Those subsections provide:

§ 1910.147(c)(i):Energy control program. The employer shall establish a program consisting of energy
control procedures, employee training and periodic inspections to ensure that before
any employee performs any servicing or maintenance on a machine or equipment
where the unexpected energizing, startup or release of stored energy could occur and
cause injury, the machine or equipment shall be isolated from the energy source and
rendered inoperative.

§ 1910.147(c)(4)(i):

Procedures shall be developed, documented and utilized for the control of potentially hazardous
energy when employees are engaged in the activities covered by this section.

§ 1910.147(c)(7)(i):

The employer shall provide training to ensure that the purpose and function of the
energy control program are understood by employees and that the knowledge and
skills required for the safe application, usage, and removal of the energy controls are
acquired by employees. The training shall include the following:

(A) Each authorized employee shall receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the
workplace, and the methods and means necessary for energy isolation and control.

(B) Each affected employee shall be instructed in the purpose and use of the energy
control procedure.

Each of the subsections apply only “where the unexpected energizing, start up or release of
stored energy could occur and cause injury.” The Review Commission has noted that it is the
Secretary’s burden to prove that these conditions exist:

The Secretary must show that there is some way in which the particular machine
could energize, start up, or release stored energy without sufficient advance warning
to the employee.

General Motors Corp., 17 BNA OSHC 1217, 1220 (Nos. 91-2973, 91-3116, and 91-3117, 1995),
aff’d Reich v. General Motors Corp., 89 F.3d 313 (6 th Cir. 1996).

The servicing and maintenance of the blades and belt occurred in two different phases: (1) the
physical changing of the blades and belt and (2) the testing of the changed blades and belt. It is
undisputed that the trimmer was not energized during the physical changing of the blades and belt.
The record establishes that during that time, the trimmer was off, the cab was locked, and the
ignition key was in Ney’s pickup truck. The Secretary presented no evidence showing that the
trimmer could energize, startup, or release stored energy while the ignition key was in the pickup
truck. TTS area vice president Raymond Swaringin testified that it is impossible for the steering
wheel to move the boom unless the trimmer’s engine is running (Tr. 173-174). Kolesa stated
explicitly that OSHA was not citing TTS for unexpected energization of the trimmer while the
engine was not running (Tr. 84): “In this case, the stored energy is when the equipment is running,
the hydraulic pump is building up pressure in the hose, and if you turn the steering wheel, that moves
the hydraulic cylinders which rotate the wheels and the boom on the tree trimmer.” Kolesa testified
that the release of stored energy could be caused by “moving or touching or bumping the steering
wheel which could unexpectedly energize the hydraulics which would cause the machine to flex,
move, causing the boom to move” (Tr. 48).

The Secretary must prove, then, that the trimmer could have unexpectedly energized during
the testing phase of the servicing and maintenance process. During the testing process, however, the
trimmer was already energized. Ney himself started the trimmer so that he could observe the blades
and belt running. He instructed McMahan to enter the cab and rev the engine so that Ney could
observe the blades and belt running faster. Neither Ney nor McMahan were subject to the
unexpected energization of the machine. They had both participated in energizing it. In Reich v.
General Motors Corp, the Sixth Circuit held that the LOTO standard did not apply in a situation
where the machine was not yet energized, but the employees were aware that it soon would be ( Id.
at 315):

We conclude that the plain language of the lockout standard unambiguously renders
the rule inapplicable where an employee is alerted or warned that the machine being
serviced is about to activate. In such a situation, “energization” of the machine
cannot be said to be “unexpected” since the employee knows in advance that machine
startup is imminent and can safely evacuate the area. The standard is meant to apply
where a service employee is endangered by a machine that can start up without the
employee’s foreknowledge. In the context of the regulation, use of the word
“unexpected” connotes an element of surprise, and there can be no surprise when a
machine is designed and constructed so that it cannot start up without giving a
service employee notice of what is about to happen.

In the present case, not only did the two employees servicing the machine receive notice that
the machine was starting up, they themselves started it and were fully cognizant that it was
energized. The Secretary has failed to establish that TTS violated the terms of the standard by
having its employees service a machine where its unexpected energization could result in injury to
them. Items 1, 2, 3a, and 3b are vacated.

Item 4: Alleged Serious Violation of § 1910.147(f)(1)(ii)

The Secretary also alleges that TTS committed a serious violation of § 1910.147(f)(1)(ii),
which provides:

In situations in which lockout or tagout devices must be temporarily removed
from the energy isolating device and the machine or equipment energized to test
or position the machine, equipment or component thereof, the following sequence
of actions shall be followed:

. . .

(ii) Remove employees from the machine or equipment area in accordance with
paragraph (e)(2) of this section[.]

Section 1910.147(e)(2) provides:

The work area shall be checked to ensure that all employees have been safely
positioned or removed.

Unlike the sections of § 1910.147 cited in the previous items, § 1910.147(f)(1)(ii) deals with
situations where the machine or equipment is energized in order to test the equipment. The TTS
crew had energized the trimmer in order to test the replacement blades and belt.

The Secretary has established a prima facie case for item 4. Ney violated the terms of the
standard when he positioned himself within the zone of danger created by the rotating blades. His
death is evidence of his exposure to the hazard, and, as foreman, his knowledge of his positioning
is imputed to TTS.

TTS asserted the affirmative defense of employee misconduct in its answer. In order to
establish the affirmative defense of unpreventable employee misconduct, an employer is required
to prove (1) that it has established work rules designed to prevent the violation, (2) that it has
adequately communicated these rules to its employees, (3) that it has taken steps to discover
violations, and (4) that it has effectively enforced the rules when violations are discovered. Precast
Services, Inc., 17 BNA OSHC 1454, 1455 (No. 93-2971, 1995), aff’d without published opinion,
106 F. 3d 401 (6th Cir. 1997).

The evidence adduced by TTS tended to show that it was uncharacteristic of Ney to position
himself near the blades (Tr. 147), that Ney could have observed the testing of the blades from a safer
vantage point (Tr. 163, 174), and that staying away from rotating blades is common sense (Tr. 80).
TTS failed, however, to establish the first element of its defense, that it had an actual work rule
designed to prevent an employee from positioning himself within the zone of danger of the trimmer’s
blades. McMahan testified regarding the work rules for changing the blades and belt (Tr. 141):

Q. What kind of work rules, if any, did you have for doing this kind of work, like
changing a saw blade? Did you have any rules about it?

McMahan: No, because it wasn’t nothing in operation when we was changing them.
The machine was shut down completely.

When Ney squatted down within three feet of the rotating blades attached to an articulated
boom, he was not violating any work rule established by TTS. With no work rule established to
communicate to its employees, the affirmative defense of TTS must fail. The Secretary has
established that TTS committed a violation of § 1910.147(f)(1)(ii).

Penalty Determination

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.

TTS employs approximately 1,800 employees. At the time of the inspection, the company
had a history of previous violations within the last three years (Tr. 58). No evidence of bad faith was
adduced. The gravity of the violation is high, as Ney’s tragic death attests. Based upon these factors,
it is determined that a penalty of $5,000.00 is appropriate.

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 that:

1. Item 1 of the citation, alleging a violation of § 1910.147(c)(1), is vacated and no penalty is
   assessed;

2. Item 2 of the citation, alleging a violation of § 1910.147(c)(4)(i), is vacated and no penalty
   is assessed;

3. Item 3a of the citation, alleging a violation of § 1910.147(c)(7)(i)(A), is vacated and no
   penalty is assessed;

4. Item 3b of the citation, alleging a violation of § 1910.147(c)(7)(i)(B), is vacated and no
   penalty is assessed; and

5. Item 4 of the citation, alleging a violation of § 1910.147(f)(1)(ii), is affirmed and a penalty
   of $5,000.00 is assessed.         

/s/ Nancy J. Spies                     

NANCY J. SPIES

Judge

Date: August 4, 2005