ABCO TREE AND HEDGE SERVICE

OSHRC Docket No. 15082

Occupational Safety and Health Review Commission

March 11, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

BOBBYE D. SPEARS, Regional Solicitor, USDOL

Karl R. Lund, ABCO Tree & Hedge Service, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an [*2] unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated because there is nothing in the record that establishes that working 8 feet from powerlines of 7.2 kilovolts or less constituted a "recognized hazard." n1 See National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

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n1 It is interesting to note that employees engaged in the maintenance or erection of powerlines of similar voltage to that involved in this case need not be provided with protective insulating equipment unless their duties bring them to within 2 feet of the powerline. 29 C.F.R. 1926.950(c).

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Since my colleagues do not address any of the matters covered in Judge Brady's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

DECISION AND ORDER

Robert H. Buckler, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

Mr. Milton L. Bronson and Mr. Karl Lund, Pro Se

STATEMENT OF THE CASE

BRADY, Judge: This proceeding is brought pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et. seq., 84 Stat. 1590 (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The citation, which was issued September 12, 1975, alleges that as a result of an inspection of respondent's workplace located at 801 Royal Drive, Largo, Florida, respondent violated section 5(a)(1) of the Act. A notice of proposed penalty was issued with the citation.

The hearing was held January 6, 1976, at Clearwater, Florida, and no additional parties sought to intervene.

The facts are undinputed [*4] that on August 29, 1975, Mr. Milton Bronson, partner of ABCO Tree and Hedge Service, and Mr. Kettlehake, an employee, were in the process of trimming a tree at the aforementioned worksite. Mr. Kattlehake, while in the tree using an aluminum pole saw, apparently came in contact with a power transmission line causing him to be electrocuted. The accident was not observed, however, a limb which had been cut off was in the tree and apparently Mr. Kettlehake was attempting to hook it with the saw to pull it out of the tree when the saw came in contact with the power line.

The pole saw was approximately seven feet long, and Mr. Kettlehake was approximately eight feet from the power line when the accident occurred. The saw was not insulated, nor was Mr. Kettlehake wearing any form of personal protection for working near power transmission lines.

Mr. Bronson testified that Mr. Kettlehake had been employed for approximately one week. He received no special training by the respondent, but had previous experience as a tree trimmer. He was aware of the power line as it was discussed prior to undertaking the trimming operation. Mr. Bronson pointed out that when it is necessary to trim a [*5] section of a tree near a power line, a power company provides service for trimming that part of the tree around the line (Tr. 10-12).

The respondent, in this case, is charged with serious violation of section 5(a)(1) of the Act, which provides as follows:

"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 his employees."

The citation alleges as follows:

"On August 29, 1975, the employer failed to provide an employee at 801 Royal Drive, Largo, Florida, employment and a place of employment free from a recognized hazard that was causing or likely to cause death or serious physical harm, in that; an employee was allowed to work in such proximity to a high voltage energized electric power line that the line could be contacted in the course of work, without first de-energizing and grounding the line or by guarding it by effective insulation or other means."

Mr. Bronson contended that it was not necessary for the employee to work so close to the line in performing his duties (Tr. 13). He therefore believed the accident occurred as [*6] a result of the negligence of Mr. Kettlehake, and that the trimming of the tree could have been performed in a safe manner (Tr. 24, 25).

Mr. Bronson revealed that the power company's practice was to trim up to approximately three or four feet around power lines, and the distance of the tree to be trimmed in this case did not warrant the involvement of the power company (Tr. 27). The indicated that it was the general practice to hook limbs which have been cut but not fallen to the ground (Tr. 29).

The primary question to be answered in this proceeding relates to the degree of care required of the employer in a manner consistent with the stated purpose of the Act "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." The respondent contends that it was not necessary for the deceased employee to work in such proximity to the power transmission line as to present a hazardous condition.

There is no doubt that the risk of working in near proximity to a high voltage electric power line is a "recognized hazard" and that such hazard is "likely to cause death or serious physical harm" within the meaning of the Act.

The duty of the [*7] respondent under the Act relates to that action which is possible in eliminating any such recognized hazards. In considering this aspect of a violation under section 5(a)(1), the court held in Secretary v. National Realty and Construction Company, Inc., 489 F.2d 1257, 1266-1267 (D.C. Cir. 1973) that:

". . . All preventable forms and instances of hazardous conduct must, however, be entirely excluded from the workplace. . . . At the same time, however, actual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has led to injury. The record must additionally indicate that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred."

Although in the instant case, the unfortunate occurrence may have resulted from the negligent conduct of the deceased, the evidence established that respondent failed to take adequate and reasonable measures to ensure protection of the employee working in near proximity to the power transmission line. It was reasonably foreseeable that in the process of cutting and hooking a limb at the distance involved, the pole saw could come in contact [*8] with the power line. Further, through the use of insulated poles or personal protective equipment, the operation would have been rendered free of the type encountered in this case.

Therefore, it is held that respondent failed to render the workplace free of hazards, in violation of section 5(a)(1) as alleged.

The Commission under section 10(c) of the Act is charged with affirming, modifying or vacating penalties proposed by the Secretary under section 10(a) and (b) of the Act. In determining an appropriate penalty, the Commission under section 17(j) of the Act is required to give "due consideration" to the size of the employer's business, gravity of the violation, good faith of the employer, and history of previous violations in determining the assessment of an appropriate penalty.

The compliance officer testified with reference to the elements considered in determining the proposed penalty in this case (Tr. 21). Weighing all the foregoing factors in light of the circumstances, it is concluded that the proposed penalty in the amount of $500 is reasonable and appropriate under the circumstances of this case.

FINDINGS OF FACT

1. ABCO Tree and Hedge Service is a partnership [*9] having a place of business at 2501 East Bay Drive, Largo, Florida, where it is engaged in the business of operating a tree trimming service.

2. On September 9, 1975, an authorized representative of the Secretary conducted an inspection of respondent's workplace at 801 Royal Drive, Largo, Florida. As a result of the inspection on September 12, 1975, respondent was issued a citation with notification of proposed penalty.

3. On August 29, 1975, an employee of respondent in the process of trimming a tree was using a pole saw at the above worksite in near proximity to an electric power line.

4. During the course of such trimming operation, respondent's employee was not wearing personal protective equipment, nor was the pole saw insulated against electric shock.

5. Trimming of trees in near proximity to an energized electric power line without effective insulated equipment is a recognized hazard which is likely to cause death or serious physical harm.

6. The penalty proposed by the Secretary in the amount of $500 is reasonable and appropriate.

CONCLUSIONS OF LAW

1. ABCO Tree and Hedge Service, at all times pertinent hereto, was an employer engaged in a business affecting [*10] commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter, pursuant to section 10(c) of the Act.

2. Respondent was in violation of section 5(a)(1) of the Act on August 29, 1975, as charged in the citation. The violation constituted a serious violation within the meaning of section 17(k) of the Act.

3. A penalty in the amount of $500 is assessed for the violation of section 5(a)(1).

ORDER

On the basis of the foregoing findings of fact and conclusions of law, and the entire record, it is ORDERED:

The citation alleging violation of section 5(a)(1) of the Act is affirmed, and a penalty in the amount of $500 is assessed.

Dated this 12th day of July, 1976.

PAUL L. BRADY, Judge