Davey Tree Expert Company

Plain-English summary

Davey Tree Expert Company trims trees around power lines for utilities. On April 14, 1993, one of its working foremen was fatally electrocuted in Winchester, New Hampshire when he contacted an energized primary wire from an aerial-lift bucket while trimming under a contract with Public Service of New Hampshire. OSHA first cited a willful general duty clause violation with a $35,000 penalty, then amended it to serious with a $5,000 penalty, alleging the employee failed to keep adequate clearance from the primary line. With no eyewitness to the trimming method, both sides offered plausible accident theories. Administrative Law Judge Barbara L. Hassenfeld-Rutberg found the Secretary's proposed "no crouching in the bucket" rule was not an industry standard, since ANSI Z133 and OSHA's own 29 C.F.R. § 1910.269 did not forbid it, and, more importantly, that Davey Tree proved the affirmative defense of unpreventable employee misconduct. The company had extensive work rules, weekly tailgate safety talks, worksite monitoring, and progressive discipline, and its electrical-fatality rate was far below the industry average. Because the Secretary did not prove a violation or a feasible added abatement step, the judge vacated the citation.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The single general duty clause item vacated; no penalty (the proposed penalty had already been reduced from a $35,000 willful to a $5,000 serious before hearing).
• Key point: An employer defeats a general duty clause citation by proving unpreventable employee misconduct: established work rules, genuine communication and training, monitoring for violations, and effective enforcement, especially where the safe-practice rule the Secretary urges is not an industry standard.

Full text (OSHRC public release)

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                                                  UNITED STATES OF AMERICA’
                         OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                                   One Lafayette Centre
                                             1120 20th Street, N.W. - 9th Floor
                                                Washington, DC 2003643419


    PHONE:
    cou(202)606-6100
    ~Pm-1~

                       SECRETARY OF LABOR
                                   Complainant,
                             v.                                                    OSHRC DOCKET
                                                                                   NO. 93-1849
                       DAVEY TREE EXPERT CO.
                                    Respondent.


                                           NOTICE OF DOCKETING
                                     OF ADMINISTIXIIVE UW JUDGE’S DECISION
                            The Administrative Law Judge’s Re rt in the above referenced ease was
                       docketed with the Commission on Otto goet $1994. The decision of the Judge
                       will become a final order of the Commission on November 4, 1994 unless a
                       Commission member directs review of the decision on or before that date. ANY -
                       PARTY DESIRING REVIEW OF THE JUDGES DECISION BY THE
                       COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
                       Any such petition should be received b the Executive Secretary on or before
                       October 26, 1994 in order to ermit su&icient time for its review. See
                       Commission Rule 91,29 C.F.ii .2200.91.
                          All further pleadings or communications regarding this case shall be
                       addressed to:
                                               ~ecutive Secretary
                                               OccupationalSafety and Health
                                                Review Commission
                                               1120 20th St. N.W., Suite 980
                                               Washington, D.C. 20036-3419
                       Petitioning parties shall also mail a copy to:
                                               Daniel J. Mick, Esq.
                                               Counsel for Re ‘onal Trial Liti ation
                                               Office of the So%‘&or, U.S. DOc
                                               Room S4004
                                               200 Constitution Avenue, N.W.
                                               Washington, D.C. 20210
                       If a Direction for Review is issued by the Commission, then the Counsel for
                       Regional Trial Litigation will represent the Department of Labor. Any party
                       having questions about review nghts may contact the Commission’s Executive
                       Secretary or call (202) 6063400.
                                                              FOR THE COMMISSION


                       Date: October 5, 1994
DOCKET NO. 93-1849
NOTICE IS GIVEN TO THE FOL;LO’WING:


Daniel J. Mick, Esq.
Counsel for Re l  onal Trial Liti ation
Office of the Sof l
                  citor, U.S. DOc
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210



Albert H. Ross, Esq.
Re ‘onal Sohtor
O&e of the Solicitor U S DOL
One Congress Street, 11th ‘Floor
P.O. Box 8396
Boston, MA 02114



Thomas J. Piatak, Es .
Thorn son, Hine and %l o
1100 18ational City Bank ‘Br
                           uilding
629 Euclid Avenue
Cleveland, OH 44114



Barbara Hassenfeld-Rutberg
Administrative Law Jud e
Occupational Safety an B Health
Review Commission
McCormack Post Office and
 Courthouse, Room 420
Boston, MA 02109 4501




oo1o8784ooo:Ol
                                              ..
SECRETARY OF LABOR,

                       Complainant,           :       OSHRC
                                              ..      DOCKET NO. 93-1849
                                              .
               V.                             l




DAVEY TREE EXPERT COMPANY,                    :
                                              .
                       Respondent.            :




Appearances:
       James Glickman, Esq.                           Keith A Aslums,Esq.
              Office of the Solicitor                 Thomas Piatak, Esq.
              U.S. Department of Labor                        Thompson, Hine and Flory
                       ForComplainant                         Cleveland, OH
                                                                      For Respondent

Before: Administrative Law Judge Barbara L. Hassenfeld-Rutberg




       This is a proceeding under section IO(c) of the Occupational Safiety and Health Act of 1970,
29 U.S.C., et seq, (“the Act”), to review a citation issued by the Secretary pursuant to Sec. 9(a) of the
Act and a proposed assessment of penalty issued thereon for an alleged violation of section 5(a)(l) of
the Act.
       Respondent, Davey Tree Expert Company (“Davey Tree”), was issued one citation on June 17,
1993,stemming from an investigation conducted by the Occupational Safety and Health
Administration (“OSHA’) of an accident which occurred on Scotland Road in Winchester, New
Hampshire on April 14,1993. In that accident, a Davey Tree employee was fatally electrocuted when
he contacted a primary wire while performing tree trimming services under a contract with Public
Service of New Hampshire (“PSNH”). (Tr.26-29; Exhibit C-4). David &swell, an OSHA compliance
officer, began the accident investigation on the same day and concluded his investigation on April 15,
1993. The original citation-a Wiill~ violation of Sec. 5(a)(l) of the Act with a proposed penalty of
$35,000.00 was later amended by the Complainant to a Serious violation and the proposed penalty
was reduced to $S,OOO.OO
                       (Tr. 7, M-55).
       Davey Tree filed a timely Notice of Contest and a hearing was held in Boston, Massachu@ts
from May 16, 1993 to May 17, 1993, presided over by Judge Barbara L. Hassenfk!&Rutberg.
I, Serious Citation 1, Item 1
        The Secretary alleges that Davey Tree violated Section S(a)( 1) of the Act (General Duty
Clause) because its employee did not maintain an adequate clearance from the energized (primary)
line. In order to establish a violation of the General Duty Clause, the Secretary must show that the
employer failed to provide to each of its 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
its employees. The cases mandate that the Secretary must prove: (1) the existence of a hazard to
empbyees; (2) recognition of the hazard by the industry or employer; (3) hazard causes or is likely to
cause death or serious physical harm; and (4) the existence of feasible abatement steps to eliminate or
materially reduce the hazard. See National Ready & Cosfnrction Co. v. OSHRC,489 F.2d 1257,
1265, 1267 @.C.Cir. 1973); Wheeling-PittsburghSteel Corp. v. OSHRC, 16 BNA OSHC 1218,
1221,1993    CCH OSHD para. 30,050 (No. 89-3389,1993).
        Davey Tree is an international company that performs tree trimming services around power
lines for utility companies. Although based in Ohio, the company conducts extensive business east of
the Mississippi River and in New England. Thomas Collins, the deceased employee, had been
employed by the Respondent for about 18 months, and at the time of the accident, was the acting
(working) foreman on a two-man tree trimming crew performing tree trimming. On the tenth setup of
the morning of April 14,1993, Collins had been trimming trees in a Ford High Ranger aerial liff buck&
while the chipper (ground person who collects and clips brush), Gordon Goodell, had been on the
ground clearing the debris. (Tr. 28,30-31). From the injuries sustained--a red mark on the sight side
of his face and a wound on his right hip-it was concluded that Collins contacted the primary wire
(containing 2.4 Kilovolts (KV)) with the right side of his face and the neutral wire with his right hip
and was electrocuted.l(Tr. 36-37,229,344,347-48).            Goodell had been working with his back to
Collins and approximately 50 to 70 feet behind the truck when he heard a loud bang and then saw a
blue flash. (Tr. 30-31). The deceased was found in his bucket which was in front of and offto the
right of the truck between the telephone and neutral wires. (Tr. 33-34).
        Since there was no eye witness to the tree trimming method used by Collins that caused the
accident, each party presented a different version of how it believed the accident occurred. Acumhg

1 There were three Werent wires on the poles wkre h4r. Collins and Mr. Goodell were trimming. The lomst one was
a telephone wire and was located 17 feet from the gmmd The next wire was the neutral wire and was located 47 inches
above the telephone wire. The highest wire was the energized line, also called the primarywire, andwaslocated 15
inches above the neutralwire. (Tr. 168032,175-83). The height of the bucket on the aerial lift truckwas 42 inches.
 frr. 125,384-85).

                                                        2
to the Secretary’s expert witness, Mr. Arthur Lewis, Mr. Collins was coming back through the neutral
and telephone wires after finishing trimming the trees at that setup; he had been crouched down in the
bucket to come through the wires and misjudging his location, stood up too early, thus contacting the
primary wire. (Tr. 231-33). The Secretary attempted to substantiate this version of the accident with
testimony from Gordon Goodell, the Davey Tree employee working with Collins the day of the
accident, who stated that the decedent had been known to pass through the neutral and telephone
wires to perform tree trimming and had done SOon earlier setups that day. (Tr. 38). In addition, the
Secretary established that Davey Tree employees were allowed to go through the telephone and
neutral wires as long as they maintained a minimum clearance from the primary wire. (Tr. 43.54,448.
49). Finally, Mr. David Nicholas, a former Davey Tree employee, testified that he had performed tree
trimming by crouching down in the bucket and going between the neutrai and the telephone wires. (Tr.
105-06).
        m. Lewis asserted that crouching down in a bucket and going between the neutral and the
telephone wires were unsafe practices and should be prohibited. (Tr. 233.34,235.36,252-57,266).
However, he admitted that no such prohibition has ever existed nor was adopted in the recently
revised standards of the American National Standards Institute (“ANSI”) covering tree care
operations.   (Tr. 268; ANSI Standard Zl33, Exhibit C-12). There was testimony from Mr. Edward
Johnson, Respondent’s Vice-President for safety, Mr. Walter Michelson, Respondent’s Supervisor for
the PSNH account, and Mr. Gerald Duke, Respondent’s expert witness, that neither the ANSI
standards nor any of Davey Tree’s competitors prohibited either crouching down in the bucket or
going between the neutral and telephone wires as long as there was a minimum clearance of 2 feet
from a line energized at greater than 2. I Kilovolts (KV). (Tr. 270,3 12,453,456-59; Exhibit C-12).
It is to be noted that OSHA’s new standard concerning working in proximity to overhead power lines,
29 CFR 1910.269, does not prohibit crouching in the bucket or passing between the neutral and the
telephone wires. (Tr. 268). ANSI has published tables giving the minimum clearances f&n primary
lines when working around the wires and these tables are the guidelines that Davey Tree posts in its
trucks for its employees to use to determine if it is safe to go between the neutral and telephone wires
on a particular setup. (Tr. 11 142,442).   Although Davey Tree employees do not actually measure
distance f?om and between the wires at each setup, Respondent has set as a guideline to stay a~!UI&
length away from the primary wires and the employees’experience usually tells them what is safe and
what is not. (Tr. 56.58,68). Regarding the operation of aerial lift truck buckets, the ment   ANSI
standards do not impose a minimum height for the operator of the bucket so there is no requirement as
to how far above the top of the bucket the head of the operator must be. (Tr. 268-70; 457-58; &h&it
C-12). Thus, a tall person crouched down may be the equivalent height of a shorter person standing

                                                    3
up.(Tr. 268-69)2
        Mr. Lewis’opinion about the crouching prohibition, therefore, is clearly not reflective of the
industry sta.ndard. Yet, if we assume that his version of the accident is correct and Mr. Collins did, in
fact, crouch down in the bucket measuring 42 inches high to pass between the neutral and the
telephone wires measuring 45 inches and then stood up too early, there would have been a violation of
the industry, i.e. ANSI standards of coming too close to the primary wire which was 15 inches above
the neutral wire (not 2 feet as required by ANSI). However, the Secretary is still unable to meet its
burden of proof to sustain an affirmation of a violation of section S(a)(I) of the Act because the
Respondent    has successfUlly proven its defense of unpreventable employee misconduct or pure
accident caused by a well-trained employee.
        The Secretary dismisses as without merit the alternative theories of the accident presented by
the Respondent,    i.e., that Collins either went through the neutral and the telephone wires and violated
his employer’s instructions for clearance between those wires and the need to maintain a 2 foot
clearance from the primary wire; or he did not go between the wires at all but simply lost track of
where he was, contacting the wires purely by accident while watching the boom across the street.
These are the two versions of the accident raised by Davey Tree in its defense of unpreventable
employee misconduct and/or well-trained employee mistake. (Tr. 19-20). Since there is no eyewitness
as to how the accident actually occurred, this judge finds that the theories presented by both parties
are a,Uplausible explanations and that no particular theory can be said to be the correct one to the
exclusion of the others.
         To establish the defense of unpreventable employee misconduct, an employer must: (1) have
established work rules designed to prevent the violation; (2) adequately communicated these rules to
its employees; (3) taken steps to discover violations; and (4) effectively enforced the rules when
violations have been discovered. Jensen ConstructionCo. v. OSHRC, 7 OSHC 1477,1979 OSHD
para. 23,664 (1979). Davey Tree has passed this test. First, Davey Tree has created and maintained an
extensive safiity and training manual designed to protect their employees while working afound
energized (primary) lines such as those at the accident site. (Tr. 307; Exhibit R-l). In addition, each
truck contains a copy of the Respondent’s safety and training manual which includes the entire ANSI
2133 standard as well as a notice posted in the truck with the ANSI tables of guidelines for clearances
needed from the primary wire. (Tr. 89,112,308).             Thus, the company has clearly tried to prevent the

*OKIcr~~-e.uami~tion, Mr. Lewis amtxded that a 6 foot man crouching down in the budret would have the equivalent
range of vision as a 5 foot 3 inch - standingstraight up in the bucket. Implied in this line of questioning is that since
ANSI standards do not impose a minimum he&ht requirement, there should therefore be m p&ibition on crouching
down in the bucket. (Tr. 26849).


                                                            4
type of accident that occurred--electrocution of an employee--by enabling the employees to quickly
ver@ the necessary minimum clearances at a new job site. (Tr. 89, 11 l-12,308,442).                 Second, safety
issues and rules are communicated primarily through the weekly “tailgate” system. (Tr. 308). Mr.
Mark NicMos, Respondent’s Account Manager for New England travels throughout the area monthly,
and Mi. Walter Michelson, the Supervisor of the PSNH account, visits the different worksites on a
we&ly basis and discusses certain safety issues at the back of the truck, hence the name “tailgate talk.”
(Tr. 366.73,424.39; Exhibits R-2 through R- 15). Sign-in sheets were required and kept in order to
document those who attended and what subjects were discussed. (Tr. 366-73,424.39; Exhibits R-2
through R-15). Topics of these talks, while primarily centering on tree trimming and electrical
hazards, also included general safety concerns such as wearing seatbelts while driving the trucks as
well as their personal vehicles, safety at home over holidays and rescue techniques (Goodell attempted
to revive Collins by using cardiopulmonary resuscitation that he learned from the Respondent’s safety
training program). (See, e.g., Exhibits R-3, R-4, R-12 and R-13). This tailgate system also has
enabled Davey Tree employees to learn about safety in the context of real-life problems, even to the
extent that employees often demonstrate procedures that are discussed. (Tr. 428-29; Exhibit R-l 1).
Mr. Goode11testified that he felt he was adequately trained by Davey Tree so as to be capable of
making the necessary judgments to work safely around electrical lines. (Tr. 92). Third, Davey Tree
has created a reporting program by which employees are charged with the responsibility of maintaining
a safe environment by reporting any safety violations they are aware oc even if a superior officer is
involved. (Tr. 84,3 11,322,3X)). In addition, supervisors travel to the worksites, usually on a daily
basis, to insure that there are no problems, that the employees are working in a safe manner, and work
crews are encouraged to refer safety issues to them. Fourth, Davey Tree issues either an oral or a
written reprimand when safety violations are discovered. (Tr. 95-96,108). The general policy is that
four violations in one year would result in termination3         Employee testimony confirmed that
reprimands had been issued for i&actions ranging Corn going between the primary and neutral wires
to being late for tailgate talks, and that employees were aware that termination could result from safety
infractions. (Tr. 87988,95996, 108,401-12). The Respondent’s safety program is considered a model
by the tree t rimming industry. (Tr. 466).
        Thus, it appears that Davey Tree has more than adequately met the four-part Jensen test fir
unpreventable employee misconduct. Mr. Collins had been a Davey Tree employee for about 18
months and Respondent has documented that he had attended all of the weekly tailgate talks where


3 This rule is neither automatic or Wlute. MCNicklos testified that outside factoIs such as the severity of&e Offenses
and the led of knowledge of an employeewereamsidemd in the decisionto terminate an employee; he a&o m&d t&t
he did not know of an employeewho hadfourviolationsin one year and thatsomeemployees were fired for ]a w
four violations. (I’r. 4O142,W.
                                                          5
safety around energized lines (among other concerns) was frequently discussed. (Exhibits R-2 through
R-l 5). He was characterized by other employees as a “tremendously hard worker”, and he had never
been known to come within the minimum clearance from a primary wire. (Tr. 4 12,365,44 1). In fact,
Mr. Collins was considered capable of added responsibility and was given the position of acting
(working) foreman for the two-man crew on which he was working in the weeks prior to his accident.
From his training by the Respondent, Mr. Collins was well aware of the necessity of maintaining a
sufficient clearance (i.e. the ANSI recommended clearance) from the energized lines.
        The other possible explanation of the accident presented by Davey Tree is that this was just a
pure accident--a me of Collins making a mistake and losing track of his position relative to the wires,
especially the primary wire. Respondent’s expert witness, Mr. Gerald Duke, theorized that Collins was
probably coming back over the wires tier trimming while simultaneously rotating him&using the
controls on the outside ofthe bucket. (Tr. 463). During this time, it was hypothesized that he was
looking over his shoulder to watch the location of the boom on the other side of the street rather than
looking in the direction of his travel in the bucket. (Tr. 463-64). In Duke’s opinion, the bucket must
have hit the neutral wire and Collins turned towards the wires, and thus contacted the primary wire on
his right side. (Tr. 464-66). This version of the accident was also espoused by ML Nrcklos, Davey
Tree’s Account Manager for New England, who had conducted his own investigation of the accident
in order to use it as an example for other Davey Tree employees to prevent accidents in the future.
(Tr. 357-59). only theories could be used because the other employee at the site, Mr. Goode&
testified that he had not seen Collins go through the wires at that setup so he did not actually know
how the trees were trimmed or the route the decedent had traveled in the bucket. (Tr. 70-75). There
was   considerable testimony Corn other Davey Tree employees and Mr. Duke that it was not necessary
to go between the wires to perform the trimming at that setup. (Tr. 70.75,440,443-44,463).                 Lastly,
there was testimony that no other Davey Tree employees had ever been seen coming within the
required 2 foot clearance of the primary wire mandated by the ANSI standards. (Tr. 43.54,365,44).
Ifthe Respondent’s version of the accident that the employee did not go through the wires but rather                   .
made a mistake in judgment coming back towards the wires is true, then Mr. Lewis’ prohibition against
crouching down in the bucket to go between the wires would not have prevented the accident. In
addition, Mr. Lewis’other suggestion to have a regional person solely in charge of safety would also
have not prevented the accident4

4 DaveyTree’sexpertmaintainedtbt the ody &cumstance where a regional safkty person might bme preventedthe
accidenfwas if he/&e coincidentally drove upjust before Mr. Collins had hit the primary wire and honked his/her horn
or scrd     fir. 510).



                                                         6
        The overall safety record of Davey Tree also lends weight to the conclusion that this was either
a case of unpreventable employee misconduct or a well-trained employee’smistake. Davey Tree’s
safety record concerning electrocutions is exemplary; they have one-third less electrical fatalities than
the industry in general--Davey Tree’saverage per year fatality record was 2.32 versus 8.6 for the
industry. (Tr. 477.78,482-83; Exhibit R-17). From 19864993, Respondent’s employees worked
more than 26,700,OOOhours performing utility line clearance without an electrocution or serious injury
while using an aerial lift bucket truck. (Tr. 3 19-20). This low fatality record appears to be a result of
its effective safety program.
        Thus, even if the Secretary’s theory of the accident were true and Collins violated industry
standards by coming too close to the primary wire by passing between the neutral and the telephone
ties,   the Respondent has met its burden of defense of unpreventableemployee misconduct or pure
accident caused by a well-trained employee. Davey has established that it has a good safety program
that was well communicated to the employees and enforced whenever violations were discovered.
Further, the Secretary has not presented feasible abatement steps that Davey Tree couId have pursued
that would have eliminated or materially reduced the hazard or prevented the accident. The Secretary
has not proven that Davey Tree committed a violation of section 5(a)( 1) of the Act, the General Duty
Clause; therefore, the citation must be VACATED.




        All findings of fact relevant and necessary to a determinationof the contested issue have been
found specially and appear herein. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed
findings of fact or conclusions of law inconsistentwith this dtiision are denied.




         Serious citation 1, item 1, alleging a violation of section S(a)(l) of the Act is VkA’fED.

                          .




                                                Judge, OSHRC


Date: September-20, 1994
Boston, Massachusetts