Nelson Tree Services, Inc. v. Occupational Safety and Health Review Com'n

• Decision Date: 01 August 1995
• Docket Number: No. 94-3705,94-3705
• Citation: 60 F.3d 1207
• Parties: 17 O.S.H. Cas. (BNA) 1305, 1995 O.S.H.D. (CCH) P 30,833 NELSON TREE SERVICES, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Robert B. Reich, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1207

60 F.3d 1207

17 O.S.H. Cas. (BNA) 1305, 1995 O.S.H.D. (CCH)

P 30,833

NELSON TREE SERVICES, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Robert B. Reich, Secretary of Labor, Respondents.

No. 94-3705.

United States Court of Appeals Sixth Circuit.

Argued June 6, 1995.

Decided Aug. 1, 1995.

Gary W. Auman (argued and briefed), Matthew D. Stokely, Dunlevey, Mahan & Furry, Dayton, OH, for Nelson Tree Services, Inc.

Ray Darling, Secretary, O.S.H.R.C., Washington, DC, for Occupational Safety & Health Review Com'n.

Barbara A.W. McConnell (argued and briefed), Barbara Werthmann, U.S. Dept. of Labor, Office of Sol., Washington, DC, for Robert B. Reich.

Before: MARTIN and SILER, Circuit Judges; JOINER, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

Nelson Tree Services, Inc., appeals the final order of the Occupational Safety and Health Review Commission denying its petition for discretionary review and adopting the determination of the administrative law judge that Nelson Tree Services violated the Occupational Health and Safety Act's "general duty clause." 29 U.S.C. Sec. 654(a)(1). Claiming that substantial evidence does not support the administrative law judge's findings that being struck with a prematurely felled tree is a recognized hazard in the utility line clearance industry and that the suggested means of abatement would materially reduce the hazard, Nelson Tree Services asks this Court to vacate the Commission's order. For the following reasons, we AFFIRM the decision of the Occupational Safety and Health Review Commission but modify Nelson's abatement obligation.

I.

Nelson Tree Services is a company that is hired by public utilities to trim and cut trees obstructing utility lines. On March 19, 1993, the company was cutting trees that interfered with power lines in a residential area in Hanoverton, Ohio. Foreman Larry Dulaney and Kevin Fetterman were felling a willow tree about twenty-five yards from the location where foreman Michael Shaffer and Ricky Duck were felling a maple tree. After making two of the three cuts necessary to fell the willow tree, Dulaney stopped to refuel his chainsaw. At that point, Shaffer and Duck approached Dulaney to express their concern that he was making the cuts too large. After confronting Dulaney, Duck and Shaffer headed back toward the maple tree, crossing directly in front of the willow. The willow snapped, and its thirty-foot trunk fell on top of Shaffer, pinning him to the ground and killing him.

II.

On March 22, 1993, an Occupational Safety and Health Administration compliance officer inspected the worksite in connection with Shaffer's death and cited the company for violating the Occupational Safety and Health Act. Specifically, the citation alleged that Nelson Tree Services violated the Act's "general duty clause" by failing to protect its workers from the recognized hazard of being struck by a tree that falls prematurely during the felling process. The citation also identified a feasible and acceptable method of abating the hazard: following standards promulgated by the American National Standards Institute.

By filing a timely notice of contest with the Occupational Safety and Health Review Commission challenging the citation, Nelson Tree Services obtained a hearing before an administrative law judge. In an April 1, 1994, decision, the judge affirmed the citation and proposed penalty, concluding that the record established "that being struck by a prematurely felled tree is recognized as a hazard in the tree felling industries, and was specifically recognized by Nelson" and "that the cited hazard is likely to result in serious physical harm or death." Moreover, the judge determined that the proposed abatement measures--requiring workers not directly involved in the felling operation to stay out of the fall zone and limiting the size of the notch to roughly one-third of the tree's diameter--were feasible and would materially reduce the cited hazard. Finally, the judge held that $1,875.00 was an appropriate penalty.

Nelson Tree Services then petitioned the full Occupational Safety and Health Review Commission for discretionary review. Because the Commission declined to review the administrative law judge's decision, that decision became a final order of the Commission. This timely petition for review followed.

III.

The Courts of Appeals have struggled throughout the years over how we review the decisions of agencies created by Congress. The foundation of this process began in 1951, with Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Our review of the facts, as found by the agency or the official charged with agency operations, is whether or not there is substantial evidence in the record as a whole to support the facts as found. 29 U.S.C. Sec. 660(a); Carlisle Equip. Co. v. United States Secretary of Labor, 24 F.3d 790, 792 (6th Cir.1994) (citing Dunlop v. Rockwell Int'l, 540 F.2d 1283, 1287 (6th Cir.1976)). Moreover, the Commission's conclusions of law are viewed favorably unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (quoting Empire-Detroit Steel Div. v. Occupational Safety and Health Review Comm'n, 579 F.2d 378, 383 (6th Cir.1978)).

The Occupational Safety and Health Act is a comprehensive regulatory scheme broadly designed to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. Sec. 651(b); Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S.Ct. 883, 63 L.Ed.2d 154 (1980). Accordingly, the Act requires every employer to comply with occupational safety and health standards promulgated by the Secretary of Labor, 29 U.S.C. Sec. 654(a)(2), and imposes a general duty upon an employer to furnish both "employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees." 29 U.S.C. Sec. 654(a)(1). This "general duty clause" is the cornerstone of the Act. In order to establish a violation of this provision, the Secretary of Labor must demonstrate that:

A condition or activity in the workplace presented a hazard to employees;

The cited employer or the employer's industry recognized the hazard;

The hazard was likely to cause death or serious physical harm; and

A feasible means existed to eliminate or materially reduce the hazard.

E.g., Secretary of Labor v. Pelron Corp., 12 O.S.H. Cas. (BNA) 1833, 1835 (1986) (citing Continental Oil Co. v. Occupational Safety and Health Review Commission, 630 F.2d 446 (6th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 613 (1981)).

Nelson Tree Services argues that substantial evidence does not support the administrative law judge's finding that the danger of being struck by a prematurely felled tree is a recognized hazard in the utility line clearance industry. In support of its position, Nelson Tree Services first contends that the administrative law judge defined the hazard too broadly: "the hazard to employees of being struck by,...