“SECRETARY OF LABOR,Complainant,v.DAVEY TREE EXPERT COMPANY,Respondent,andFLORIDA POWER AND LIGHT COMPANY,Intervenor.OSHRC Docket No. 77-2350_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:The Secretary of Labor has alleged that Davey Tree Expert Companyviolated 29 U.S.C. ? 654(a)(1), section 5(a)(1) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). Thatsection requires that each employer \”furnish to each of his employeesemployment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or seriousphysical harm to his employees. . . .\”Two Davey employees were felling tree limbs along the right-of-way of ahigh-voltage electrical transmission line. After examining a certaintree and cutting a number of its limbs, they began to cut a limb on theside of the tree closest to the power line. The limb grew upward andback, however, so most of it leaned away from the power line. Theysurveyed the situation and concluded that the limb would fall away fromthe line. To keep the limb from falling into dense brush where theyfeared there might be rattlesnakes, the employees \”notched\” the limb andpulled it to make it fall parallel to the wires. The limb did not fallthe way they expected, however. One of the branches growing off thelimb caught on another branch, the chain saw jammed, and the limb wasnot cut cleanly. It tore, causing it to swing around into the wire,electrocuting the employee holding the saw.Administrative Law Judge Paul L. Brady vacated the citation because hefound that the accident \”resulted from the method used by the employeesin trimming the tree\” and found no proof that the method used was shownto be a recognized hazard. Instead, the judge found that the methodused was an accepted practice within the industry. He found no evidencethat, when the employees began trimming the limb, it was likely to hitthe power line.The Secretary argues that the judge incorrectly identified the hazard. He argues that the hazard is electrocution caused by a limb touching thehigh-voltage line and that this hazard is recognized by Davey and itsindustry.To establish that an employer violated the general duty clause, theSecretary must do more than show that a hazard was present. He mustalso show that the hazard was recognized by the employer or theemployer’s industry. _See_ _Phillips Petroleum Co._, 84 OSAHRC __\/__,11 BNA OSHC 1776, 1984 CCH OSHD ? 26,783 (No. 78-1816, 1984). Thehazard, however, must be preventable so as to render the employer’s dutythe achievable one intended by Congress. _See_ _National Realty &Construction Co._ _v. OSHRC_, 489 F.2d 1257, 1265-1267 (D.C. Cir.1973). The Secretary’s broad, generic definition of the hazard aselectrocution caused by a limb touching a high-voltage line does notachieve this objective. Such a definition does not apprise Davey of itsobligations and identify conditions or practices over which the employercan reasonably be expected to exercise control. In order that Davey mayproperly be apprised of its duty under the Act we define the hazard inthis case as electrocution from a tree limb contacting a power linebecause of the actions of employees in removing the limb. To establishthe \”recognition\” element of a general duty clause violation, theSecretary therefore had to establish that either Davey or its industryrecognized a hazard from the process by which the employees removed thelimb. Chairman Rowland and Commissioner Buckley agree with Judge Bradythat the Secretary failed to show this.[[1\/]]All three Commission members agree that the Secretary failed toestablish the feasibility and likely utility of the abatement measureshe suggested. A violation of the general duty clause cannot besustained unless the Secretary is able (1) to establish the type ofemployer conduct necessary to avoid citation under similar circumstancesand (2) to demonstrate the feasibility and likely utility of suchconduct. _See_ _Gearhart-Owen Industries, Inc._, 82 OSAHRC 66\/A2, 10BNA OSHC 2193, 2195-96 1982 CCH OSHD ? 26,329, p. 33,335 (No. 4263,1982). In our view, the Secretary has not established what Davey shouldhave done that it did not do.The Secretary argues that several feasible methods of abatement wereshown to exist. He suggested various methods to protect employees,including \”topping\” the limb (cutting the end to shorten it), \”roping\”or \”crotching\” the limb (securing it to prevent it from falling thewrong way), notching the limb before cutting to make it fall in thedesired direction, pulling the limb in the desired direction, usingmathematical tables or formulae to determine the weight of the limb,putting insulation on the lines, and deenergizing the lines. We findthat the last two of these measures, putting insulation on the lines anddeenergizing the lines, were not shown to be feasible. There is noevidence that there is any insulating material available to Davey thatwould prevent electrocution by a 240,000 volt line, and there is experttestimony by an electrical engineer to the contrary. The Secretary’sassertion that the line should have been deenergized was not shown to befeasible. This job lasted from 4 to 6 months, during which many limbsclose to the power lines were cut. The power lines supplied power toover three million people, who would have been without electricity whilethe lines were deenergized.As to the other measures suggested by the Secretary, we note thatemployees cannot be expected to use these protective measures unlessthey determine that a limb is in a position where it could touch a powerline when it is felled. What the Secretary’s argument amounts to,therefore, is that Davey’s employees should have been better trained torecognize that the limb could hit the power line. Contrary to theSecretary’s claim, however, the record establishes that Davey’s trainingand its safety program were adequate. Davey gave its employeeson-the-job training which included an apprenticeship. This traininggave them experience in judging where a limb will fall and included theuse of such tree-trimming techniques as \”topping,\” \”roping\” or\”crotching,\” \”notching,\” and \”pulling\” limbs to influence their fall orto prevent them from falling a particular direction; on this job alone,they had topped 40 to 50 limbs and had roped or crotched 80 to 90 limbs. Each crew held weekly tailgate safety meetings and was visited by asafety supervisor at least twice a week. Davey’s safety rules wereenforced by an oral reprimand for the first violation, a written warningfor the second, and discharge for a third offense; but foremen could anddid summarily discharge employees for safety violations. Some trimmersand foremen received an additional twenty hours of classroom safetyinstruction annually. Furthermore, Davey pays its insurer $71,000 peryear in addition to its premiums to have the insurer’s safetyrepresentatives inspect Davey’s crews.The Secretary argues that Davey’s training program was inadequatebecause its employees should have been given formal classroom trainingto determine how limbs will fall. All the knowledgeable witnessestestified, however, that on-the-job training and experience to the onlyway to gain that ability, and there is no evidence that classroomtraining is superior to Davey’s on-the-job training. The Secretary alsosuggested that employees be taught to use mathematical tables andformulae to estimate the weight of tree limbs. The record does notshow, however, that knowing the weight of a limb would be any help toemployees in determining where it will fall.Finally, these were experienced trimmers. The foremen had 15 to 16years’ experience trimming trees along power lines and had been aforemen for 8 to 9 years. His assistant had 12 years’ experience. Theyhad been extensively trained. In the 8 or 9 years they had worked as ateam, neither had had an accident. So far as this record shows, Daveycould only rely on the judgment of experienced employees that the limbwould not hit the power line. That their judgment turned out to bewrong and had tragic consequences does not, by itself, prove that Daveyshould have done more.Accordingly, the judge’s vacation of the citation is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 30 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Commissioner Cleary disagrees with this definition of therecognized hazard. Although, for the reasons indicated in the text ofthe decision, Commissioner Cleary would find it unnecessary to reach therecognized hazard issue, he concludes it is patently untenable to holdthat there is no recognized hazard when employees cut tree limbs wherethere is a possibility of contacting live power lines. Davey Tree’s owntraining program demonstrates that this company recognized that treetrimming in proximity to power lines is a hazardous undertaking. On amore general level, Commissioner Cleary would also point out that overlynarrow definitions of hazards emasculate section 5(a)(1) because theyrequire that the particular circumstances of an accident be predictableregardless of whether the hazard can be alleviated by training,procedure or otherwise.”