“Docket No. 77-2350 SECRETARY OF LABOR, Complainant, v.DAVEY TREE EXPERT COMPANY, Respondent, andFLORIDA POWER AND LIGHT COMPANY, Intervenor. OSHRC Docket No. 77-2350DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:The Secretary of Labor has alleged that Davey Tree Expert Company violated 29U.S.C. ? 654(a)(1), section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”).\u00a0 That section requires that each employer\”furnish to each of his employees employment and a place of employment which are freefrom recognized hazards that are causing or are likely to cause death or serious physicalharm to his employees. . . .\”Two Davey employees were felling tree limbs along the right-of-way of ahigh-voltage electrical transmission line.\u00a0 After examining a certain tree andcutting a number of its limbs, they began to cut a limb on the side of the tree closest tothe power line.\u00a0 The limb grew upward and back, however, so most of it leaned awayfrom the power line.\u00a0 They surveyed the situation and concluded that the limb wouldfall away from the line.\u00a0 To keep the limb from falling into dense brush where theyfeared there might be rattlesnakes, the employees \”notched\” the limb and pulledit to make it fall parallel to the wires.\u00a0 The limb did not fall the way theyexpected, however.\u00a0 One of the branches growing off the limb caught on anotherbranch, the chain saw jammed, and the limb was not cut cleanly.\u00a0 It tore, causing itto swing around into the wire, electrocuting the employee holding the saw.Administrative Law Judge Paul L. Brady vacated the citation because he foundthat the accident \”resulted from the method used by the employees in trimming thetree\” and found no proof that the method used was shown to be a recognized hazard.\u00a0Instead, the judge found that the method used was an accepted practice within theindustry.\u00a0 He found no evidence that, when the employees began trimming the limb, itwas likely to hit the power line.The Secretary argues that the judge incorrectly identified the hazard. \u00a0He argues that the hazard is electrocution caused by a limb touching the high-voltage lineand that this hazard is recognized by Davey and its industry.To establish that an employer violated the general duty clause, the Secretarymust do more than show that a hazard was present.\u00a0 He must also show that the hazardwas recognized by the employer or the employer’s industry.\u00a0 See PhillipsPetroleum Co., 84 OSAHRC __\/__, 11 BNA OSHC 1776, 1984 CCH OSHD ? 26,783 (No.78-1816, 1984).\u00a0 The hazard, however, must be preventable so as to render theemployer’s duty the achievable one intended by Congress.\u00a0 See NationalRealty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265-1267 (D.C. Cir.1973).\u00a0 The Secretary’s broad, generic definition of the hazard as electrocutioncaused by a limb touching a high-voltage line does not achieve this objective.\u00a0 Sucha definition does not apprise Davey of its obligations and identify conditions orpractices over which the employer can reasonably be expected to exercise control.\u00a0 Inorder that Davey may properly be apprised of its duty under the Act we define the hazardin this case as electrocution from a tree limb contacting a power line because of theactions of employees in removing the limb.\u00a0 To establish the \”recognition\”element of a general duty clause violation, the Secretary therefore had to establish thateither Davey or its industry recognized a hazard from the process by which the employeesremoved the limb.\u00a0 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 to establish the feasibilityand likely utility of the abatement measures he suggested.\u00a0 A violation of thegeneral duty clause cannot be sustained unless the Secretary is able (1) to establish thetype of employer conduct necessary to avoid citation under similar circumstances and (2)to demonstrate the feasibility and likely utility of such conduct.\u00a0 See Gearhart-OwenIndustries, Inc., 82 OSAHRC 66\/A2, 10 BNA OSHC 2193, 2195-96 1982 CCH OSHD ? 26,329,p. 33,335 (No. 4263, 1982).\u00a0 In our view, the Secretary has not established whatDavey should have done that it did not do.The Secretary argues that several feasible methods of abatement were shown toexist.\u00a0 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 the wrong way),notching the limb before cutting to make it fall in the desired direction, pulling thelimb in the desired direction, using mathematical tables or formulae to determine theweight of the limb, putting insulation on the lines, and deenergizing the lines.\u00a0 Wefind that the last two of these measures, putting insulation on the lines and deenergizingthe lines, were not shown to be feasible.\u00a0 There is no evidence that there is anyinsulating material available to Davey that would prevent electrocution by a 240,000 voltline, and there is expert testimony by an electrical engineer to the contrary.\u00a0 TheSecretary’s assertion that the line should have been deenergized was not shown to befeasible.\u00a0 This job lasted from 4 to 6 months, during which many limbs close to thepower lines were cut.\u00a0 The power lines supplied power to over three million people,who would have been without electricity while the lines were deenergized. As to the other measures suggested by the Secretary, we note that employeescannot be expected to use these protective measures unless they determine that a limb isin a position where it could touch a power line when it is felled.\u00a0 What theSecretary’s argument amounts to, therefore, is that Davey’s employees should have beenbetter trained to recognize that the limb could hit the power line. Contrary to theSecretary’s claim, however, the record establishes that Davey’s training and its safetyprogram were adequate.\u00a0 Davey gave its employees on-the-job training which includedan apprenticeship.\u00a0 This training gave them experience in judging where a limb willfall and included the use of such tree-trimming techniques as \”topping,\”\”roping\” or \”crotching,\” \”notching,\” and \”pulling\”limbs to influence their fall or to prevent them from falling a particular direction; onthis job alone, they had topped 40 to 50 limbs and had roped or crotched 80 to 90 limbs.\u00a0Each crew held weekly tailgate safety meetings and was visited by a safetysupervisor at least twice a week.\u00a0 Davey’s safety rules were enforced by an oralreprimand for the first violation, a written warning for the second, and discharge for athird offense; but foremen could and did summarily discharge employees for safetyviolations. Some trimmers and foremen received an additional twenty hours of classroomsafety instruction annually.\u00a0 Furthermore, Davey pays its insurer $71,000 per year inaddition to its premiums to have the insurer’s safety representatives inspect Davey’screws.The Secretary argues that Davey’s training program was inadequate because itsemployees should have been given formal classroom training to determine how limbs willfall.\u00a0 All the knowledgeable witnesses testified, however, that on-the-job trainingand experience to the only way to gain that ability, and there is no evidence thatclassroom training is superior to Davey’s on-the-job training.\u00a0 The Secretary alsosuggested that employees be taught to use mathematical tables and formulae to estimate theweight of tree limbs.\u00a0 The record does not show, however, that knowing the weight ofa limb would be any help to employees in determining where it will fall.Finally, these were experienced trimmers.\u00a0 The foremen had 15 to 16years’ experience trimming trees along power lines and had been a foremen for 8 to 9years.\u00a0 His assistant had 12 years’ experience.\u00a0 They had been extensivelytrained.\u00a0 In the 8 or 9 years they had worked as a team, neither had had an accident.\u00a0So far as this record shows, Davey could only rely on the judgment of experiencedemployees that the limb would not hit the power line.\u00a0 That their judgment turned outto be wrong and had tragic consequences does not, by itself, prove that Davey should havedone more.Accordingly, the judge’s vacation of the citation is affirmed. FOR THE COMMISSION Ray H. Darling, Jr.Executive SecretaryDATED:\u00a0 MAR 30 1984The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 the recognizedhazard.\u00a0 Although, for the reasons indicated in the text of the decision,Commissioner Cleary would find it unnecessary to reach the recognized hazard issue, heconcludes it is patently untenable to hold that there is no recognized hazard whenemployees cut tree limbs where there is a possibility of contacting live power lines.\u00a0Davey Tree’s own training program demonstrates that this company recognized thattree trimming in proximity to power lines is a hazardous undertaking.\u00a0 On a moregeneral level, Commissioner Cleary would also point out that overly narrow definitions ofhazards emasculate section 5(a)(1) because they require that the particular circumstancesof an accident be predictable regardless of whether the hazard can be alleviated bytraining, procedure or otherwise.”