Some personal identifiers have been redacted for privacy purposes. 

United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, OSHRC Docket No. 21-0497 

v. 

ASPLUNDH TREE EXPERT, LLC, 

and its successors,

 Respondent. 

Appearances: 

Kristi Henes, Esq., and Javier G. Diaz, Esq., Department of Labor, Office of Solicitor, 

Denver, Colorado 

 For Complainant 

David L. Zwisler, Esq., Ogletree Deakins Nash Smoak & Stewart, P.C., Denver, 

Colorado 

 For Respondent 

Before: Judge Christopher D. Helms– U. S. Administrative Law Judge 

DECISION AND ORDER 

I. Procedural History 

On November 2, 2020, Asplundh Tree Expert, LLC (“Respondent”) performed treetrimming services at a jobsite located at 1777 CR 241, New Castle, Colorado (“worksite” or “site”). 

On that date, three of Respondent’s employees, [Redacted] (‘[Redacted]”), [Redacted] 

(“[Redacted]”), and James Haynes (“Haynes”), the crew foreman, entered the worksite in order to 

perform tree-trimming services. (Ex. C-10). 
As part of these tree-trimming services, the crew was tasked with removing the top portions 

of several large cottonwood trees. (Ex. C-10). In order to remove a top portion of one of the trees, 

crewman [Redacted] ascended the tree. (Ex. C-10). After [Redacted] proceeded to cut the top 

portion of the tree, it broke off and fell in an unattended direction striking the branch [Redacted] 

was standing on. (Ex. C-10). This caused [Redacted] to fall to the ground, suffering severe 

injuries. (Tr. 332; Ex. C-10). Respondent notified the Occupational Safety and Health 

Administration (“OSHA”). (Tr. 220-22). OSHA’s Denver, Colorado, Area Office initiated an 

investigation after the notification. (Tr. 216-17, 220-22). 

At the close of OSHA’s investigation, on April 26, 2021, the Secretary of Labor 

(“Secretary”) issued a Citation and Notification of Penalty (“Citation”) to Respondent. The 

Citation alleges a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 

U.S.C. §§ 651-678 (the “Act”), the statutory provision commonly referred to as the general duty 

clause. Specifically, the Alleged Violation Description (“AVD”) of the Citation alleges 

Respondent “did not provide safe means or methods to remove a dead cottonwood tree in cold 

weather” exposing Respondent’s employees to struck-by and fall hazards while performing tree 

trimming operations. The Citation indicates that feasible and effective means existed to eliminate 

or materially reduce the hazards, and specifically notes that “[a]mong other methods, one feasible 

acceptable method to correct the hazards is to ensure that all dead limbs are trimmed from a safe 

distance by using a bucket truck or similar equipment.” The Citation proposes a total penalty of 

$13,653. 

On May 19, 2021, Respondent timely filed a notice of contest, thereby bringing the matter 

before the Occupational Safety and Health Review Commission (“Commission”) pursuant to 

section 10(c) of the Act. 29 U.S.C. § 659(c). A two-day trial was held on June 7, 2022 and June 

2 
 

 

 

 

8, 2022. The Secretary presented four witnesses: 1) an expert witness, Donald Blair1; 2) the 

Assistant Area Director for the Denver Area Office, Lisa Bennett; 3) an employee for Respondent, 

Donald O’Campo; and 4) a foreperson for Respondent, Christopher Martinez. Respondent did not 

call any witnesses, but portions of a deposition of Compliance Safety and Health Officer 

(“CSHO”) Katherine Rain were entered into evidence as she was medically unavailable. (Tr. 383-

84; Ex. R-40). 

Both parties submitted timely post-trial briefs.2

 Pursuant to Commission Rule 90, after 

hearing and carefully considering all the evidence and the arguments of counsel, the Court issues 

this Decision and Order as its findings of fact and conclusions of law. 

For the reasons discussed, Citation 1, Item 1 is VACATED. 

II. Stipulations and Jurisdiction 

The parties stipulated to various facts, including several jurisdictional details.3 (Ex. J-1). 

Based on the Joint Stipulations, the Court finds the Commission has jurisdiction over this action 

pursuant to Section 10(c) of the Act, 29 U.S.C. § 659(c). Further, the Court obtained jurisdiction 

over this matter under section 10(c) of the Occupational Safety and Health Act (“Act”) upon 

Respondent’s timely filing of a notice of contest. 29 U.S.C. § 659(c). The Court also finds 

Respondent was an employer engaged in a business and industry affecting interstate commerce 

within the meaning of sections 3(3) and 3(5) of the Act, 29 U.S.C. §§ 652(3), (5). 

1

 At the trial, Mr. Blair testified as an expert arborist. (Tr. 21-23). He has been an arborist for over 50 years. (Tr. 22). 

He founded and led various businesses relating to arborist work, consulting, and education, including the M.F. Blair 

Institute of Arboriculture, Sierra Moreno Mercantile Company, and Blair’s Arborist Equipment. (Tr. 24-27). Mr. 

Blair also assisted in authoring various industry standards, publications, and books relating to the arborist industry. 

(Tr. 23-24, 34-39; Ex. C-17 at 3). He specifically helped draft the ANSI Z-133 standards. (Tr. 35-37; Ex. C-17 at 3). 

2

 Affirmative defenses not raised at the trial are deemed waived and abandoned by Respondent. Any affirmative 

defenses not raised at the trial are deemed waived by Respondent. Corbesco, Inc. v. Dole, 926 F.2d 422, 428–29 (5th 

Cir. 1991); Ga.-Pac. Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991). 

3

 The Joint Stipulations were received and admitted as a Joint Exhibit into the record. 

3 
 

 

The parties stipulated that the Secretary employed Katherine Rain as a CSHO for OSHA. 

(Ex. J-1). The CSHO was assigned to OSHA’s Denver, Colorado Area Office, and she inspected 

Respondent’s worksite in November 2020. Id. 

III.Factual Background4 

Respondent is a nationwide tree-trimming company that contracted with Xcel Energy 

(“Xcel”) in Colorado to prune and manage vegetation affecting Xcel’s power infrastructure. (Tr. 

220; Exs. J-1, C-10). It is headquartered in Pennsylvania with approximately 34,000 employees 

nationwide and roughly 290 employees located in Colorado at the time of the incident. (Tr. 74, 

220-21; Ex. J-1). 

In November 2020, Respondent was engaged in tree pruning and vegetation management 

at a worksite located at 1777 CR 241, New Castle, Colorado (“site” or “worksite”). (Citation; Tr. 

220; Ex. J-1). Xcel had hired Respondent to trim and prune trees that could threaten Xcel’s power 

infrastructure. (Tr. 220; Exs. C-10, C-19). Specifically, Respondent was tasked with trimming 

several dead cottonwood trees that were interfering with Xcel’s powerlines. (Exs. C-10, C-11). 

Respondent’s worksite management consisted of crew foreman James Haynes. (Ex. C10). The crew further consisted of [Redacted] and [Redacted]. (Ex. C-10). Respondent’s general 

foreman, who supervised all of Respondent’s crews at the time of the accident, was Ramon Varela. 

(Tr. 318; Exs. C-6, C-8, C-25). 

On November 2, 2020, Respondent’s crew arrived at the worksite to trim trees. (Tr. 220; 

Exs. J-1, C-10). Respondent’s employees had been instructed to remove the tops of certain trees 

on the site. (Tr. 45). When Respondent’s crew arrived, they performed a Job Safety Briefing 

before beginning their work. (Tr. 67-68, 102; Exs. C-10 pp. 13-14, R-40 at 144-45). This job 

4

 The factual background is based on the credible record evidence, as discussed below, and consideration of the record 

as a whole. Contrary evidence is not credited. 

4 
 

 

 

 

briefing included a description of the tasks to be performed, the tools needed for the job, potential 

hazards, and steps to ensure proper safety. (Ex. C-10 at 12-22). “Dead trees” were identified as a 

safety hazard. (Ex. C-10 at 13). The Job Safety Briefing was signed by [Redacted], [Redacted], 

and James Haynes. (Ex. C-10 at 13). 

Haynes determined they would need a 60/70 bucket truck in order to top the 70-foot height 

of one of the trees.5 (Tr. 47, 330; Ex. C-8). However, Respondent did not provide the 60/70 bucket 

truck. (Tr. 47, 330). Respondent did not have permission to use the 60/70 bucket truck on site.6 

(Tr. 271). Respondent instead provided a second crew and a smaller squirt boom to assist in 

topping the hazard trees.7 (Tr. 49-50, 195-96, 249-50, 337; Ex. C-15). The squirt boom crew 

consisted of foreman Chris Martinez and crewmember Alfred Rankin. (Tr. 324). Upon arrival at 

the worksite, the squirt boom crew reviewed the Job Safety Briefing and discussed the plan the 

first crew had developed. (Tr. 50-51, 320, 325; Ex. C-10 at 12-13). 

Prior to the squirt boom crew’s arrival, [Redacted], unaware of the squirt boom crew’s 

impending arrival, proceeded to climb a dead cottonwood tree in need of topping. (Tr. 352-53; 

Ex. C-8). [Redacted], a trained climber with 17 months of experience, made it approximately 35 

feet up the tree but was unable to climb any further due to structural weakness in the tree.8 (Tr. 

152-54, 352-53; Ex. C-8). The remaining 35-foot portion of the tree, above [Redacted], needed to 

5

 A 60/70 bucket truck refers to the 60-to-70-foot height the bucket on the truck, carrying a tree trimmer, can reach. 

(Tr. 47). 

6

 The Secretary’s expert witness admitted the 60/70 truck would have been preferred if Respondent had permission. 

However, Mr. O’Campo testified that Respondent did not have permission to use the 60/70 truck on the worksite. (Tr. 

271). The Secretary’s expert witness conceded that a qualified climber could do the work with the equipment 

provided, that a bucket truck or other aerial lift are not required to do the work, that dead cottonwood trees can be 

climbed, that the specific cottonwood tree in this case was actually safe to climb, that nothing in the ANSI standards 

required a 60/70 truck, and that there was nothing in the instance here that required a bucket truck. (Tr. 155-59, 165, 

198). 

7

 A squirt boom truck can lift a tree trimmer in the air up to a 42-foot working height. (Tr. 77-78, 320-21, 330; Ex. 

C-15). 

8

 The Secretary’s expert admitted he had erroneously labeled [Redacted] as an inexperienced climber. (Tr. 152-153). 

5 
 

 

be topped. (Tr. 352-53). Before beginning his cut, [Redacted] tied into a fall protection system. 

(Tr. 232). [Redacted] secured his lanyard around the main stem of the tree and his climbing line 

around the branch on which he was standing.9 (Tr. 65, 121-22, 141-42, 157-59, 248, 328-29, 339-

42, 348; Ex. C-10 at 19-20, R-40 at 69-70). Respondent’s employees, who were not in the tree, 

held on to a tag line intended to guide the portion of the tree that was being topped in a safe 

direction. (Tr. 69, 167-68, 331). 

[Redacted] proceeded with his first cut, the notch cut, into the tree at a 32-degree angle. 

(Tr. 62-63, 167, 191).10 The notch cut is the first cut made and is intended to direct the falling path 

of the portion of tree being cut. (Tr. 57). The notch cut consists of a top cut and a bottom cut 

which together create an angle to aim the falling portion of tree in the intended direction. (Tr. 57-

58). [Redacted] then proceeded to make a back cut but did so incorrectly and created a bypass cut 

instead. (Tr. 332-34). A back cut is used to remove wood from the back of the tree and create a 

hinge in conjunction with the initial notch cut. (Tr. 60-61). The hinge is a strip of wood left 

between the face notch cut and back cut that helps guide the topped portion of the tree to fall in 

the intended direction. (Tr. 60-61). When a back cut goes too far into the tree through the hinge 

and into the notch cut, a bypass cut occurs. (Tr. 61). The bypass cut was not observed by 

Respondent’s employees on the ground because they were working on the opposite side of the 

tree.11 (Tr. 64, 168, 344; Ex. C-11 at 2). 

9

 The Secretary’s expert conceded that tie-in locations on trees are tree specific, that tying to the main stem is not 

referenced in the ANSI standards, that he did not actually know where the lanyard was tied off to, and that his original 

theory that they lanyard was tied around the branch [Redacted] was standing on did not make sense. (Tr. 158-59, 179-

80, 184). 

10 The Secretary’s expert admitted that the notch cut was adequate. (Tr. 62-63, 167, 190-91). 

11 The Secretary’s expert admitted that Respondent’s employees on the ground would not be able to gauge the exact 

angle of the cut made by [Redacted]. (Tr. 78, 193). 

6 
 

The improper back cut caused the topped portion of the tree to fall in an unintended 

direction. (Tr. 332; Ex. R-40 at 72, 75-77). The top portion of the tree, estimated to weigh 875 

pounds, struck the end of the branch on which [Redacted] was standing and to which his second 

tie off was secured. (Tr. 328-29, 332; Ex. C-17 at 7). As a result of the top portion of the tree 

striking the branch, [Redacted]’s lanyard around the main stem was lifted over the area in which 

he was tied off and caused [Redacted] to fall about 35 feet to the ground. (Tr. 204-09, 332). 

[Redacted] sustained a broken leg and permanently disabling spinal injuries from the fall. (Tr. 

332). 

Respondent notified OSHA of the incident as part of the Rapid Response program. (Tr. 

220-22). OSHA assigned CSHO Rain to investigate the matter, and she conducted an onsite 

inspection. (Tr. 220-23; Ex. J-1). Through the course of her investigation, she conducted an 

opening conference, inspected the worksite, gathered pertinent facts, and conducted a closing 

conference with Respondent’s employees. (Tr. 222-23). 

As a result of OSHA’s inspection, the Secretary issued Respondent the Citation for a 

violation of the general duty clause. The Citation alleged Respondent’s employees were exposed 

to struck-by hazards and fall hazards while performing tree trimming operations on a dead 

cottonwood tree. On April 26, 2021, OSHA issued the Citation that is at issue in this case. 

IV. Discussion 

A. Law Applicable to Alleged Violation 

The general duty clause requires each employer to “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...” 29 U.S.C. § 654(a)(1). 

To prove a violation of the general duty clause, the Secretary must show that: (1) a condition or 

7 
 

 

activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; 

(3) the hazard was likely to cause death or serious physical harm; and (4) that a feasible means 

existed to eliminate or materially reduce the hazard. Arcadian Corp., 20 BNA OSHC 2001, 2007 

(No. 93-0628, 2004) citing Pelron Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986); K.E.R. 

Enters., 23 BNA OSHC 2241, 2242 (No. 08-1225, 2013). 

The Secretary must also prove that the employer knew or, with the exercise of reasonable 

diligence, could have known of the hazardous condition. Cranesville Block Co., Inc., 23 BNA 

OSHC 1977, 1985 (No. 08-0316, 2012) (consolidated); Burford’s Tree, Inc., 22 BNA OSHC 1948, 

1950 (No. 07-1899, 2010). 

The Secretary has the burden of establishing each element by a preponderance of the 

evidence. See Hartford Roofing Co., 17 BNA OSHC 1361, 1363 (No. 92-3855, 1995). 

“Preponderance of the evidence” has been defined as: 

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free the 

mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. 

Preponderance of the evidence, Black’s Law Dictionary (10th ed. 2014) (emphasis added). 

1. Citation 1, Item 1 

The Secretary alleges that Respondent violated the general duty clause in Citation 1, Item 

1 as follows: 

OSH ACT of 1970 Section (5)(a)(1): The employer did not furnish employment 

and a place of employment which were free from recognized hazards that were 

causing or likely to cause death or serious physical harm to employees in that 

employees were exposed to struck-by and fall hazards while performing tree 

trimming operations: 

On or before November 2, 2020, the employer did not provide safe means or 

methods to remove a dead cottonwood tree in cold weather. An employee 

was instructed to climb a tree to cut limbs for the removal. The employee 

8 
 

tied off to a leader branch that was struck-by another branch when it was cut. 

As a result, the leader branch that the employee had been tied to broke off 

and fell approximately 35 feet to the ground. The employee sustained a 

broken leg and permanently disabling spinal injuries when he landed on the 

ground. This condition exposed employee to struck-by hazards and a fall 

hazard of approximately 35 feet. 

Among other methods, one feasible acceptable abatement method to correct 

the hazards is to ensure that all dead limbs are trimmed from a safe distance 

by using a bucket truck or similar equipment. 

See Citation. 

For the reasons set out, the Court finds that the Secretary failed to meet its burden to 

establish Respondent violated the general duty clause. 

a. Existence of a Hazard 

To establish a violation of the general duty clause, the Secretary must first define the hazard 

at issue. K.E.R. Enters., 23 BNA OSHC at 2242. “A safety hazard at the worksite is a condition 

that creates or contributes to an increased risk that an event causing death or serious bodily harm 

to employees will occur.” Baroid Div. of NL Indus., Inc. v. OSHRC, 660 F.2d 439, 444 (10th Cir. 

1981). When the Secretary proceeds under the general duty clause, it must define the hazard “in 

a way that apprises the employer of its obligations and identifies conditions or practices over which 

the employer can reasonably be expected to exercise control.” Arcadian, 20 BNA OSHC 2001, 

2007 (No. 93-0628, 2004); see also Waldon Health Care Ctr., 16 BNA OSHC 1052, 1060 (No. 

89-2804, 1993) (“[W]hen the Secretary proceeds under the general duty clause, he must meet the 

same minimal criterion regarding the nature of the alleged hazard as he does when promulgating 

a section 5(a)(2) standard.”). There is no requirement that there be a significant risk of the hazard 

coming to fruition. Waldon, 16 BNA OSHC at 1060. Instead, the test is whether, if the hazardous 

event occurs, would it create a significant risk of harm to employees. Id. While employers cannot 

be cited for unpreventable conditions, “the existence of a hazard is established if the hazardous 

9 
 

incident can occur under other than a freakish or utterly implausible concurrence of 

circumstances.” Waldon, 16 BNA OSHC at 1060, citing Nat’l Realty & Constr. Co. v. OSHRC, 

489 F.2d 1257, 1265 n.33 (D.C. Cir. 1973); Pelron, 12 BNA OSHC at 1835. 

The Secretary argues that Respondent’s employees were exposed to fall and struck-by 

hazards when they were directed to perform tree-topping of dead cottonwood trees. (Sec’y Br. at 

8-10). While alleging that the hazard was improperly defined as a general duty clause violation, 

Respondent does not dispute that trees fall at its worksites.12 (Resp’t Br. at 4-8). It was aware that 

certain dead cottonwood trees posed a risk to Xcel’s powerlines and needed to be trimmed. (Tr. 

44-47). Trimming and reducing tree-related hazards to Xcel’s power infrastructure was a routine 

practice. (Tr. 220-23). 

The Secretary’s expert explained that a dead tree is a suspect tree due to the rot and 

structural weakness that results. (Tr. 86, 119-20, 352). If trees are too far degraded, they could 

collapse if you jumped on them. (Tr. 75). The expert further explained that a dead tree can decay 

to the “point it has the consistency of angel food cake.” (Tr. 86). These dead portions of trees can 

fall in unintended ways and injure employees. (Tr. 121-22). 

The Secretary alleges that dead cottonwood trees present a hazard during trimming because 

employees can fall or employees can be struck by portions of the tree to be trimmed. The 

Secretary’s expert stated falling and trees striking employees are the most recognized hazards in 

the tree-trimming industry. (Tr. 137). Trimming dead trees, such as the dead cottonwoods, could 

lead to falling and crushing employees. (Sec’y Br. at 7-9; Ex. C-10). Respondent acknowledges 

as much in its TapRoot Report, job briefings, and Job Hazard Assessment (“JHA”). (Ex. C-10). 

12 Respondent attempts to argue that an existing standard, under 29 C.F.R. § 1910.28, precludes citing section 5(a)(1). 

(Resp’t Br. at 6-9). This Court finds that section 5(a)(1) is not precluded and further discusses its reasoning, infra, at 

section V. Affirmative Defenses. 

10 
 

Respondent’s JHA specifically acknowledges “fall from height” and “being hit/struck by 

falling/moving object[s]” as possible safety or environmental hazards at the worksite. (Ex. C-10 

at 15-22). Further, there is no credible dispute that Respondent’s employees were exposed to 

struck-by and fall hazards while performing tree trimming operations on dead cottonwood trees. 

The Secretary established the presence of a hazard (employees falling and dead cottonwood trees 

falling and striking employees) at the worksite to which employees were exposed. 

b. Hazard Recognition 

The Secretary can establish hazard recognition either “by proof that a hazard is recognized 

as such by the employer or by general understanding in the employer’s industry.” Integra Health 

Mgmt., Inc., No. 13-1124, 2019 WL 1142920, at *7 (OSHRC, Mar. 4, 2019). The Secretary argues 

that Respondent was aware of the hazards presented by dead cottonwood trees at its worksites and 

that its employees were exposed to these hazards. (Sec’y Br. at 9-11). Besides Respondent’s own 

recognition, the Secretary argues that the industry also recognized the hazard of these dead trees 

striking employees and employees potentially falling. Id. 

i. Respondent’s recognition of the hazard 

In support of its contention that Respondent recognized the hazards, the Secretary points 

to Respondent’s Line Clearance Qualification Standard Employer Training Manual (“LCQS 

Manual”). (Sec’y Br. at 9). Respondent disputes the Secretary’s framing of the hazards. It argues 

that it is unclear from the record what hazard the Secretary is alleging. (Resp’t Br. at 9-11). 

Respondent further argues the series of events which caused [Redacted] to fall from the tree was 

an uncommon occurrence which is not expected, known, or recognized in the tree-trimming 

industry. (Resp’t Br. at 11-12). It argues that it could not have recognized the hazard because it 

was freakish in nature and could not have been foreseen. (Resp’t Br. at 11-12). 

11 
Despite these contentions, both parties agreed (Respondent through its trainings, hazard 

assessments, safety briefings, and directions to employees) that trimming dead cottonwood trees 

are dangerous. (Tr. 220-21; Ex. C-10). They agreed, and the facts of the case showed, they may 

cause severe injury because of their unstable and unpredictable nature. (Tr. 75, 86, 119-22, 352; 

Exs. C-10, C-16). Respondent’s employees had acknowledged dead trees as a hazard in their Job 

Safety Briefing before beginning their work. (Ex. C-10 at 12-13). They had also acknowledged 

“being hit/struck by falling/moving object[s]” in their Job Hazard Assessment. (Ex. C-10 at 16-

22). Supervisory personnel had also recognized this hazard and had signed the Job Safety Briefing. 

(Ex. C-10 at 12-13). Respondent routinely directed employees to assess, trim, and mitigate 

dangerous dead trees. (Tr. 220-21; Ex. C-10). It assigned Haynes’ crew to trim and mitigate 

dangerous dead trees at the worksite precisely because they posed a hazard. (Tr. 220-21; Ex. C10). 

Respondent recognized the hazards which is evidenced through the trainings it provided 

its employees. (Tr. 154, 246-48; Exs. C-16, R-40 at 85-89). See Integra, 2019 WL 1142920, at 

*8. Respondent provided training on the hazards and discussed the dangers of dead tree hazards, 

such as falling and portions of trees striking employees in their Job Safety Briefings and Job 

Hazard Assessments. (Tr. 154, 246; Exs. C-10, C-16, R-40 at 143-45). Its written safety policies 

define the hazard dead trees pose to employees and include information designed to address the 

hazards these dead trees present.13 (Tr. 66, 121-22; Exs. C-10, C-16, R-40 at 85-89). Specifically, 

Lesson 13 of the LCQS Manual discusses tree felling. (Tr. 53-54; Ex. C-16 at 5). Lesson 13 states 

that “[f]elling trees, if not done under control, can cause property damage and injury, including 

loss of life.” (Ex. C-16 at 6). The Lesson continues by stating the first step in proper tree felling 

13 The training materials and manual included specific lessons on felling trees safely. (Ex. C-16). 

12 
 

 

is to check the site and tree for hazards. (Ex. C-16 at 7). Hazards include falling trees and the 

“felling path” of the tree. Id. Step 3 acknowledges struck-by and fall hazards when it instructs 

employees to use proper escape routes when the tree begins to fall. Id. Step 5 additionally warns 

of struck by and fall hazards when it instructs employees to “[c]heck felling site for 

hangers/hazards after tree falls to ground prior to proceeding back into the felling site.” Id. Struck 

by and falling hazards are further warned against in the reiteration of the “Danger Zone” around 

the tree to be felled. Id. Employees are instructed to avoid this “Danger Zone” when a tree is 

being felled for their protection. (Ex. C-16 at 7). Further, Lesson 11 of the LCQS Manual 

discusses specific Pruning Cuts to be used when trimming trees. (Ex. C-16 at 3-4). The Lesson 

describes how to make appropriate cuts on different limbs and how to safely drop and guide them 

to the ground. Id. Lesson 11 specifically states “[d]o not allow bypass cuts when notching” as 

control of the tree part being trimmed will not be able to be maintained. Id. Respondent’s training 

materials also reference topics covered in ANSI Z-133. (Exs. C-16, R-40). Seward Motor Freight, 

Inc., 13 BNA OSHC 2230, 2232 n.5 (No. 86-1691, 1989) (“An ANSI standard is relevant evidence 

that a hazard is ‘recognized’ within the meaning of section 5(a)(1).”). Respondent trained its 

employees on the safety tree trimming measures set out in its written materials. (Exs. C-16, R-40 

at 85-89). 

Respondent was well aware of arborist industry guidelines, particularly ANSI Z-133. 

There is substantial evidence in the record that Respondent recognized the hazards posed by 

trimming dead trees and the applicability of ANSI Z-133 to its business. (Tr. 66, 121-22; Exs. C10, C-16, R-40 at 171-73, 179-81). Respondent’s training specifically included material similar 

to ANSI Z-133 tree felling safety requirements and using chainsaws to fell trees. (Exs. C-16, R40 at 16-17, 85-89, 171-73, 179-81). Respondent’s own work rule in the LCQS Manual 

13 
specifically addresses fall protection systems and tie-in procedures to avoid fall and struck-by 

hazards associated with climbing trees. (Ex. C-16). 

Respondent’s training on how to address the hazards from trimming dead trees is 

significant evidence it recognized the hazard. See Integra, 2019 WL 1142920, at *8; Waldon, 16 

BNA OSHC at 1062 (employer’s safety manual that defined and set forth “precautionary steps” to 

prevent the hazard was evidence of employer’s recognition of the hazard); Gen. Dynamics Land 

Sys. Div. Inc., 15 BNA OSHC 1275, 1285 (No. 83-1293, 1991) (safety bulletins issued by 

employer to employees was evidence of employer’s recognition of the hazard), aff’d, 985 F.2d 560 

(6th Cir. 1993) (unpublished). Respondent provided specific training on hazards related to 

trimming dead trees, and supervisors directed employees to remove such trees because of the risks 

they posed. 

The Secretary sufficiently established hazard recognition. See Integra, 2019 WL 1142920, 

at *8; Beverly Enters., Inc., 19 BNA OSHC 1161, 1186 (No. 91-3144, 2000) (consolidated) 

(finding employer had actual recognition where “managers at the highest level of the corporation 

recognized the hazard posed”); Waldon, 16 BNA OSHC at 1061-62 (precautions taken by an 

employer can be used to establish recognition in conjunction with other evidence). 

ii. Industry recognition 

The Secretary also argues the relevant industry recognized the cited hazards. (Sec’y Br. at 

11). Industry recognition may be shown through the general understanding in the employer’s 

industry. See Integra, 2019 WL 1142920, at *8. ANSI standards are developed in an attempt to 

provide safety standards for a variety of workers engaged in various industries. Combined with 

expert testimony, they can provide evidence of industry hazard recognition. See Beverly, 19 BNA 

OSHC at 1181; Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871, 874 (3d Cir. 1979); ACME Energy 

14 
 

 

Servs., 23 BNA OSHC 2121, 2124 (No. 08-0088, 2012) (industry recognition may be shown 

through the knowledge or understanding of industry safety experts) aff’d, 542 F. App’x 356 (5th 

Cir. 2013) (unpublished). 

The Secretary’s expert testified that ANSI Z-133 applies to dead trees and trimming of 

those trees, like those at Respondent’s worksite. (Tr. 137; Ex. C-17). See Pride Oil Well Serv., 

15 BNA OSHC 1809, 1813 (No. 87-692, 1992) (ANSI standard provides evidence of industry 

recognition of a hazard). The arborist industry recognizes the danger of being struck by a falling 

dead tree when they are being trimmed. If an employer is engaged in tree felling, the danger and 

hazard posed remain the same “regardless of why the tree is being felled.” Nelson Tree Servs., 

Inc. v. OSHRC, 60 F.3d 1207, 1210 (6th Cir. 1995). Respondent adopted safety materials similar 

to ANSI Z-133 and trained its employees on it. (Tr. 66, 121-22; Exs. C-10, C-16, R-40 at 16-17, 

85-89, 171-73, 179-81). Similarly, to the current case, in Nelson Tree Services the company was 

hired not only to fell trees obstructing utility lines, but to trim and cut trees obstructing utility lines 

as well. Nelson Tree Servs., Inc. v. OSHRC, 60 F.3d 1207, 1210 (6th Cir. 1995). There, Nelson 

Tree Services had argued felling an entire tree was not a recognized hazard in their industry, 

because they typically topped a tree prior to felling it which reduced and changed the hazard. Id. 

The court rejected this argument and stated, “that although felling preparations may differ 

according to the reason for felling, the danger posed by a falling tree remains the same; a falling 

tree creates the same hazard, regardless of why that tree is being felled.” Id. Simply put, the 

hazards, namely struck by and fall hazards, from trimming dead trees is the same as if felling them. 

Beyond ANSI Z-133, the testimony of the Secretary’s expert bolsters the evidence of 

industry recognition. (Tr. 137; Ex. C-17). According to the Secretary’s expert, the number one 

hazard related to trimming a tree is falling. (Tr. 137). OSHA’s Assistant Area Director 

15 
 

 

additionally testified regarding the tree-trimming industry’s recognition of fall hazards and the fall 

protection methods and equipment needed to ensure that workers are safe while trimming trees. 

(Tr. 228-29). This testimony, combined with the other record evidence, presents strong evidence 

of industry recognition of the cited hazards. See Beverly, 19 BNA OSHC at 1181 (recognizing 

that “voluntary industry codes and guidelines are evidence of industry recognition” but also relying 

on expert testimony to establish industry recognition); ACME Energy, 23 BNA OSHC at 2124 

(holding industry recognition may be shown through the knowledge or understanding of safety 

experts familiar with the hazard in question). 

The Secretary can establish hazard recognition by showing either the employer’s 

recognition or industry recognition. Integra, 2019 WL 1142920, at *8. Here, the Secretary has 

shown both employer and industry recognition of the hazards. Therefore, the Secretary carried 

this element of its burden of proof. 

c. Death or Serious Physical Harm 

To determine whether a hazard is “causing or likely to cause death or serious physical 

harm,” the Commission does not look to the likelihood of an accident or injury occurring, but, 

instead, looks to whether, if an accident occurs, the results are likely to cause death or serious 

harm. See Babcock, 622 F.2d at 1164; Beverly, 19 BNA OSHC at 1188; Waldon, 16 BNA OSHC 

at 1060; R.L. Sanders Roofing Co., 7 BNA OSHC 1566, 1569 (No. 76–2690, 1979), rev’d on other 

grounds, 620 F.2d 97 (5th Cir. 1980). 

Respondent’s employee, [Redacted], fell from an approximately 35-foot distance when the 

portion of tree he was trimming fell on the branch he was standing on. (Tr. 204-09, 332, 352). 

The possibility of death or serious physical harm resulting from an employee falling 35 feet is 

“supplied by common sense [and] understanding of physical law.” Ill. Power Co. v. OSHRC, 632 

16 
 

 

 

F.2d 25, 28 (7th Cir. 1980). The record supports this commonsense conclusion. 

Further, [Redacted] sustained severe injuries. While not dispositive, the existence of an 

actual injury to employees from the cited hazard is evidence that the hazard presented a risk of 

death or serious physical harm. See, e.g., Beverly, 19 BNA OSHC at 1188-90 (citing actual back 

injuries suffered by the employer’s workers as evidence that the hazard posed a risk of serious 

harm). As a result of falling approximately 35 feet to the ground, [Redacted] was hospitalized. 

(Tr. 204-09, 280-81, 332, 352; Ex. C-8). He sustained a broken leg and permanently disabling 

spinal injuries from the fall. (Tr. 332). Broken bones constitute serious physical harm even if a 

worker recovers with no permanent side effects. Waldon, 16 BNA OSHC at 1060 n.6. 

The Secretary established that the hazards presented by trimming dead trees was likely to 

cause death or serious physical harm. 

d. Feasible Means of Abatement 

When an employer has taken some action to address a hazard, the Secretary must show that 

it was inadequate. See U.S. Postal Serv., Nat’l Ass’n of Letter Carriers, 21 BNA OSHC 1767, 

1773 (No. 04-0316, 2006). Respondent’s training materials and work rules refer to similar safety 

standards articulated in ANSI Z-133. (Tr. 66, 121-22, 141, 154-55; Exs. C-10, C-16, R-40 at 16-

17, 85-89, 171-73, 179-81). The Secretary argues that despite the references, there were 

deficiencies in supervision and rule enforcement. (Sec’y Br. at 12-15).14 Following [Redacted]’s 

injury, Respondent’s supervisors now conduct hands on job training with employees. (Tr. 310). 

See SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202, 1206, 1215 (D.C. Cir. 2014) (finding existing 

safety procedures inadequate); BHC Nw. Psychiatric Hosp., LLC v. Sec’y of Labor, 951 F.3d 558, 

14 Although the Secretary now argues there were deficiencies in supervision and rule enforcement, the Secretary did 

not cite Respondent for any failure in training or supervision or specify enforcement or supervision of work rules as a 

feasible means of abatement. (Tr. 154, 246; Ex. C-1). The Secretary also admitted that the citation was not issued as 

a result of a failure in training, supervision, equipment, or fall protection. (Tr. 246-47; Ex. R-40 at 16-17). 

17 
565 (D.C. Cir. 2020) (finding incomplete and inconsistently implemented safety protocols were 

inadequate to address the cited hazard). 

To demonstrate a “feasible” means of abatement, the Secretary “must specify the proposed 

abatement measures and demonstrate that the measures are capable of being put into effect and 

that they would be effective in materially reducing the incidence of the hazard.” Beverly, 19 BNA 

OSHC at 1191. The Secretary must also show that the proposed abatement measures are 

economically feasible. Waldon, 16 BNA OSHC at 1063. 

The Secretary argues that the violation could feasibly be abated by improving employee 

supervision and ensuring that dead limbs are trimmed from a safe distance by using a bucket truck 

or similar equipment. (Sec’y Br. at 12-15). However, the Secretary’s own witness conceded that 

a qualified climber could do the work, in this case, with the equipment provided. (Tr. 155-56, 158-

59, 165, 198). The expert specifically testified that a bucket truck or other aerial lift are not 

required to do the work performed by Respondent. (Tr. 155-56, 158-59, 165, 198). He stated that 

dead cottonwood trees can be climbed and that, specifically, the dead cottonwood in this case was 

actually safe to climb. (Tr. 155-56, 158-59, 165, 198). Nothing in the ANSI standards require the 

use of a 60/70 bucket truck and there was nothing in this instance that required one. (Tr. 155-56, 

158-59, 165, 198). See Arcadian, 20 BNA OSHC at 2011 (“Feasible means of abatement are 

established if ‘conscientious experts, familiar with the industry’ would prescribe those means and 

methods to eliminate or materially reduce the recognized hazard.”); Nelson Tree Servs., Inc., 60 

F.3d at 1211 (“[S]ubstantial evidence supports the administrative law judge’s finding that there 

existed feasible means, which [the employer] could and should have taken, to eliminate or 

substantially reduce the hazard of being struck by a prematurely felled tree.”). 

18 
The Secretary’s own expert admitted that the Secretary’s own proposed abatement 

measures were not needed in this instance. (Tr. 155-56, 158-59, 165, 198). Further, the Secretary 

admitted that the citation was not issued as a result of a failure in training, supervision, equipment, 

or fall protection. (Tr. 246-47; Ex. R-40 at 16-17, 85-89, 91). The Secretary and its expert admitted 

[Redacted] was a trained climber and not inexperienced as previously thought. (Tr. 152-54; Ex. 

R-40 at 16-17, 85-89, 91, 147). Consistent with his report, the Secretary’s expert testified that a 

qualified climber could do the work with the equipment provided by Respondent. (Tr. 156; Ex. 

C-10 at 10). 

The Secretary’s expert specifically testified that the proposed abatement of trimming all 

dead limbs from a bucket truck was not feasible. (Tr. 162). On cross-examination, he testified: 

Q. Are you aware of any company in the industry that requires all dead limbs to be 

trimmed from a bucket or similar aerial lift? 

A. Well, no. 

Q. Okay. So the fact that the feasible method of abatement that has been proposed 

by OSHA as requiring Asplundh to have all dead limbs be cut from a bucket truck 

or similar aerial lift just isn't feasible? 

A. That isn't the way I take this case. 

Q. I'm not asking you to take the case. Is it feasible to -- is it an industry standard 

that all dead limbs would be cut from a bucket truck? 

A. Absolutely not. 

(Tr. 162). 

While the Secretary provided the use of a bucket truck or similar aerial lift as one feasible 

means of abatement in the Citation, it proposed alternative feasible means of abatement as well at 

trial, although the Secretary did not specify such alternative means in the Citation itself. At trial, 

the Secretary argued proper employee supervision and training enforcement as alternative feasible 

19 
means of abatement. (Tr. 360-61; Sec’y Br. at 12-15). Respondent contends this position is wholly 

inconsistent with the Secretary’s original position in that Respondent was not cited for a failure in 

training or supervision. (Resp’t Br. at 16-17). Respondent points to the Secretary’s expert’s 

testimony, that Respondent’s training and associated materials met or exceeded industry standards, 

in support of its inconsistency argument. (Tr. 141-42, 154-55; Resp’t Br. at 16-17). 

Despite Respondent’s assertions, the record reveals that the nature of the alternative means 

of abatement, of proper employee supervision and training enforcement, were recognized and tried 

by the parties. During the trial, the Secretary’s expert testified extensively about these alternative 

means of abatement. (Tr. 78-79, 196-97). The expert’s report, which Respondent had before the 

trial, alleged lack of proper supervision as “[p]erhaps the greatest contributing factor to this 

incident.” (Ex. C-17 at 8). The Secretary’s expert had also testified, at the trial, concerning 

adequate supervision as an abatement method. (Tr. 78-79, 97-99, 196-97). Further, Respondent 

was able to cross examine and depose the Secretary’s expert about adequate supervision as an 

abatement. (Tr. 139). Respondent’s ability to prepare and present its case was not impaired by 

the Secretary’s alternative abatement methods. 

The record showed that the use of a bucket truck or similar aerial lift would not eliminate 

or materially reduce the fall and struck-by hazards in this case. (Tr. 160-62, 250-51). The use of 

a bucket truck in this instance would actually create an additional electrical hazard as the dead 

cottonwoods were in proximity to power lines. (Ex. R-40 at 93, 166-68). The Secretary presented 

no evidence that employee supervision or training enforcement would materially reduce the 

hazard. The Secretary’s expert admitted that Respondent’s training and associated materials met 

or exceeded industry standards. (Tr. 141, 154-55). The Secretary also did not cite Respondent for 

any failure in training or supervision. (Tr. 154, 246). The Secretary’s expert testified: 

20 
Q. So the documentation by all accounts shows that he was trained in both climbing 

and cutting. 

A. Yes. The implementation of such is another source. 

Q. You’re aware that there’s no citation here for failure to train Mr. [Redacted], 

correct? 

A. Yeah, we’re just talking about the 501.5(a)(1). 

Q. No citation for failure even in the supervision of Mr. [Redacted], correct? 

A. No, there’s just the general duty citation. 

Q. And in the general duty clause citation they don’t say you failed to properly 

trained, [sic] correct? 

A. That’s correct. 

Q. And in fact in the materials that you’ve seen, it appears that Asplundh has 

training requirements that are equal to or better than the industry requirements. 

A. Yes, I have no quarrels with the LCQS. 

(Tr. 154-55). 

The Secretary points to no evidence showing [Redacted] was acting contrary to Respondent’s own 

guidelines. OSHA was aware that [Redacted] was tied off, in conformance with Respondent’s 

policies, but did not know exactly where those tie-in locations were. (Tr. 247-48; Ex. R-40 at 69-

71). The Secretary’s expert originally testified that [Redacted] was not tied off properly around 

the main stem. (Tr. 65-67). However, he later accepted the possibility that [Redacted] was actually 

tied off around the main stem. (Tr. 209). Further, Mr. Martinez testified that [Redacted] was tied 

off around the main stem in compliance with Respondent’s guidelines. (Tr. 346-48). The 

Secretary has failed to identify one of Respondent’s policies that was not followed or to address 

how a change in training or supervision would have materially reduced the alleged hazard. 

21 
 

 

The Secretary has not sufficiently established a feasible means of abatement that would 

materially reduce the hazards. Therefore, the Secretary has not met its burden of showing the 

hazard could be materially reduced through a feasible means of abatement. 

e. Knowledge 

The Secretary can establish Respondent’s knowledge of a general duty clause violation by 

establishing either its actual knowledge of the hazard or its constructive knowledge such that it 

could have learned of the hazard with the exercise of reasonable diligence. Otis Elevator Co., 21 

BNA OSHC 2204, 2207 (No. 03-1344, 2007); Tampa Shipyards Inc., 15 BNA OSHC 1533, 1537 

(No. 86–360, 1992) (consolidated). As discussed, the Secretary showed that Respondent 

recognized the hazards associated with trimming dead trees. The Secretary’s expert concluded 

that dead trees are dangerous and can cause severe injury because of their unstable and 

unpredictable nature. (Tr. 86, 119-22, 137, 352; Exs. C-10, C-16). Respondent, aware that 

trimming dead trees posed a hazard to its employees, provided training on and developed a work 

rule discussing these hazards. (Tr. 86, 119-22, 137, 352; Exs. C-10, C-16). However, although 

there is a recognized hazard, the question of whether Respondent had knowledge of the hazardous 

condition remains. 

The Secretary asserts that Respondent had constructive knowledge of the violations. 

(Sec’y Br. at 15-17). The Secretary can establish constructive knowledge of a violative condition 

by demonstrating that the employer failed to exercise reasonable diligence to uncover the 

condition. Ragnar Benson, Inc., 18 BNA OSHC 1937, 1939 (No. 97-1676, 1999). “Reasonable 

diligence involves the consideration of several factors, including the employer’s obligation to have 

adequate work rules and training programs, to adequately supervise employees, to anticipate 

hazards, and to take measures to prevent the occurrence of violations.” Danis Shook Joint Venture 

22 
XXV, 19 BNA OSHC 1497, 1501 (No. 98-1192, 2001), aff’d, 319 F.3d 805 (6th Cir. 2003); 

Burford’s Tree, 22 BNA OSHC at 1950 (involved general duty clause violation). 

Although the Secretary asserted that Respondent had constructive knowledge of the 

violations, it is unclear from its argument and the record what the alleged hazardous condition 

actually was. (Sec’y Br. at 15-17). At the trial, OSHA’s Assistant Area Director, Lisa Bennett, 

originally testified that OSHA had identified a fall hazard and a struck-by hazard as the hazardous 

conditions. (Tr. 231-32). However, after some questioning, she testified that the hazardous 

conditions were an employee “removing objects from above where he was working” and the 

employee was improperly tied off to the tree, with “two points of tie-off, and they were both 

connected to the same anchor,” which was a tree branch the employee was standing on. Id. The 

Secretary’s own expert conceded this theory of tie off location did not make sense. (Tr. 158-59, 

179-80, 184). While the Secretary’s expert made a cursory remark about being “struck by tree 

parts” and identifying an improper face cut in his report as a hazardous condition, he subsequently 

changed his opinion to focus on an improper back cut as the main hazardous condition. (Tr. 62-

63, 167, 190-91, 227; Ex. C-17 at 6-8). Later in the trial, when asked what condition represented 

the hazardous condition, the Secretary claimed it was concerned that Respondent’s safety “policies 

and practices are not being enforced.” (Tr. 360-61). The Secretary, in its post-trial brief, again 

alluded to improper training, supervision, and training enforcement as a hazardous condition. 

(Sec’y Br. at 12-14). However, the record is clear, there was no evidence of or citation for 

improper training, supervision, or lack of training enforcement. (Tr. 141-42, 154-55, 246-47; Ex. 

R-40 at 16-17). 

Respondent’s training materials and work rules acknowledged the hazards associated with 

trimming dead trees. (Tr. 86, 119-22, 137, 352; Exs. C-10, C-16). However, here, the actual 

23 
 

violative condition arose when [Redacted] was completing his back cut. (Tr. 332-34). The back 

cut, which became a bypass cut when it went too far, was not observed by Respondent’s 

employees. (Tr. 64, 168, 344; Ex. C-11 at 2). The back cut had occurred approximately 35 feet 

in the air and on the opposite side of the tree where Respondent’s employees on the ground had 

been working. (Tr. 64, 168, 344; Ex. C-11 at 2). The back cut happened quickly and the employees 

were unable to impact the direction of the falling portion of tree once it began to move. (Tr. 168-

69). The Secretary’s expert conceded as much when he testified, “[b]ut have I been in a situation 

of standing back 40 feet looking at somebody putting in a face cut 35 feet above the ground and 

was I able to judge, no.” (Tr. 193). 

Respondent’s supervisors could not have known or corrected the incorrect back cut within 

the rapid manner it occurred. The Commission has previously dismissed a 5(a)(1) citation, finding 

no employer knowledge when an accident occurs in such a rapid manner that a supervisor could 

not have corrected it. See J.H. Traffic Control Co., LLC, 26 BNA OSHC 1839, at 1845 (No. 15-

1987, 2017)15 (Judge Duncan notes that “Given that the condition in Citation 1, Item 1 of crossing 

a live lane of traffic to retrieve three barrels, could only have taken a few minutes, [the supervisor] 

had no way of knowing that it happened. Therefore there will be no finding of constructive 

knowledge of the violative condition.”). [Redacted] was more than 35 feet in the air, on the 

opposite side of the tree from Respondent’s employees on the ground, when he made his back cut. 

(Tr. 152-54, 204-09, 332, 352; Ex. C-8). The back cut performed by [Redacted] occurred quickly 

and his error in making that back cut consisted of cutting too deeply by mere inches. (Tr. 63, 209-

12, 346; see Ex. 11 at 2).16 

15 J.H. Traffic Control Co., LLC, 26 BNA OSHC 1839 (No. 15-1987, 2017) became a final order of the Commission 

on 7/12/2017. 

16 The Secretary’s expert originally identified an improper face cut as a causal factor of the accident in his report. (Tr. 

24 
 

 

The Secretary has not sufficiently met its burden of establishing that Respondent knew or 

with the exercise of reasonable diligence could have known of the errant bypass cut that was 

performed. The Secretary failed to establish Respondent’s actual or constructive knowledge of 

the violative condition. 

V. Affirmative Defenses 

Respondent pled numerous defenses in its Answer. Those defenses were not raised further 

at trial, nor in Respondent’s Post-Trial Brief. As previously noted in footnote 1, supra, affirmative 

defenses not raised at the trial are generally deemed waived and abandoned. Corbesco, Inc. v. Dole, 

926 F.2d 422, 429 (5th Cir. 1991) (affirmative defenses not argued waived); Ga.-Pac. Corp., 15 

BNA OSHC 1127, 1130 (No. 89-2713, 1991) (“Commission declines to reach issues on which the 

aggrieved party indicates no interest.”). The Court finds all of Respondent’s pled affirmative 

defenses are rejected because they either lack merit, have been abandoned, or both. 

Although not specifically argued in Respondent’s Post-Trial Brief, Respondent did make 

a few cursory statements concerning [Redacted]’s failure to properly complete his back cut. 

(Resp’t Br. at 12-13). Therefore, the Court will briefly address the defensive concept of 

unpreventable employee misconduct. 

In order to prevail on a claim of unpreventable employee misconduct, Respondent must 

show: (1) it established work rules designed to prevent the violation; (2) it adequately 

communicated those rules to its employees; (3) it took steps to discover violations of the rules; and 

(4) it effectively enforced the rules when violations were detected. Am. Eng’g & Dev. Corp., 23 

BNA OSHC 2093, 2096–97 (No. 10-0359, 2012). Essentially, Respondent must “demonstrate 

that the actions of the employee were a departure from a uniformly and effectively communicated 

62-63, 167, 190-91; Ex. C-17 at 6-8). However, he changed his opinion later on to reflect an improper back cut as a 

main causal factor. (Tr. 62-63). 

25 
and enforced work rule [sic].” Archer-W. Contractors Ltd., 15 BNA OSHC 1013 (No. 87-1067, 

1991). 

All of the elements required for a showing of unpreventable employee misconduct were 

not established in this case. There was no work rule advising [Redacted] at which angle to make 

his notch cut, which factored into the direction the top portion of the tree fell. (Tr. 62-63, 114-15, 

264-66). Mr. O’Campo testified that he did not know of any work rules pertaining to notch cut 

angle’s in Respondent’s LCQS. (Tr. 264-66). 

Respondent has not identified any specific rule designed to prevent the alleged violation at 

the worksite. The record reveals that prior to the accident Respondent did not enforce or take steps 

to discover violations of specific work rules designed to prevent the alleged violation. (Tr. 244-

45, 295-97, 318-19). The record does show that after the accident and during the investigation, 

Mr. Varela, Mr. Haynes, and Mr. Martinez were suspended. (Tr. 297-98). Additionally, 

Respondent’s supervisors are now required to directly observe their employees’ cuts to ensure they 

have been made correctly. (Tr. 315-16). 

As Respondent has not met its burden in establishing all of the elements of the abovementioned affirmative defense, the Court finds Respondent’s employee misconduct defense fails. 

Accordingly, even if Respondent’s comments in its Post-Trial Brief could be construed as pursuing 

an unpreventable employee misconduct defense for Citation 1, Item 1, it is rejected. 

Additionally, Respondent asserts that the Secretary cannot cite a violation of the general 

duty clause when specific standards address the hazards associated with an alleged fall protection 

and struck by hazards. (Resp’t Br. at 6). Respondent argues that Subpart D of the Act’s standards 

specifically address the hazards at issue here. Id. Alternatively, Respondent argues subsections 

of 29 C.F.R. § 1910.269 are applicable. (Resp’t Br. at 7-8). This case arose out of Colorado, so 

26 
along with Commission precedent, precedent would also apply from the 10th Circuit Court of 

Appeals and from the D.C. Circuit Court of Appeals. The 10th Circuit notes that the applicability 

of specific standards is an affirmative defense. See Safeway v. OSHRC, 328 F.3d 1189, 1194 (10th 

Cir. 2004). “If an employer demonstrates that a specific standard permits the cited condition and 

compliance resolves any obvious hazard to employees, there is no general duty clause violation.” 

Id. The D.C. Circuit views recognition of the hazard remaining as key, thus where an employer 

recognizes a hazard remains after compliance with all applicable standards, the employer has a 

duty under section 5(a)(1) to safeguard his employees. See Brock v. Gen. Dynamics Land Sys. 

Div., 815 F.2d 1570, 1575-76 (D.C. Cir. 1987). 29 C.F.R. § 1910.5(f) states: 

An employer who is in compliance with any standard in this part shall be deemed 

to be in compliance with the requirement of section 5(a)(1) of the Act, but only to 

the extent of the condition, practice, means, method, operation, or process covered 

by the standard. 

Commission precedent dictates that proving the application of the cited standard pertains 

to the cited work conditions, not the particular cited employer. Ryder Transp. Servs., 24 BNA 

OSHC 2061, 2064 (No. 10-0551, 2014) (concluding “that the Secretary has failed to establish that 

the cited general industry standard applies to the working conditions here”); Active Oil Serv., Inc., 

21 BNA OSHC 1092, 1094 (No. 00-0482, 2005)(finding “that the confined space standard applies 

to the cited conditions” because “the vault was a confined space”); Arcon, Inc., 20 BNA OSHC 

1760, 1763 (No. 99-1707, 2004)(“In order to establish a violation, the Secretary must show that 

the standards applied to the cited conditions.”). 

Respondent is a tree trimming company that contracted with Xcel Energy to prune and 

manage vegetation affecting Xcel Energy’s power infrastructure. (Tr. 220; Exs. J-1, C-10). 

Respondent’s management of vegetation affecting Xcel’s power infrastructure falls under the 

purview of Part 1910, Subpart R, § 1910.269 - Electric power generation, transmission, and 

27 
 

 

distribution. The scope of the aforementioned “section covers operation and maintenance of 

electric power generation, control, transformation, transmission, and distribution lines and 

equipment.” 29 C.F.R. § 1910.269(a)(1)(i). The standard continues by stating that it applies to 

the, “[p]ower generation, transmission, and distribution installations, including related equipment 

for the purpose of communication or metering that are accessible only to qualified employees.”17 

29 C.F.R. § 1910.269(a)(1)(i)(A). 29 C.F.R. § 1910.269(a)(1)(E) states the provisions apply to: 

Line-clearance tree trimming performed for the purpose of clearing space around 

electric power generation, transmission, or distribution lines or equipment and on 

behalf of an organization that operates, or that controls the operating procedures 

for, those lines or equipment, as follows: 

(1) Entire § 1910.269, except paragraph (r)(1) of this section, applies to lineclearance tree trimming covered by the introductory text to paragraph 

(a)(1)(i)(E) of the section when performed by qualified employees (those who 

are knowledgeable in the construction and operation of the electric power 

generation, transmission, or distribution equipment involved, along with the 

associated hazards). 

(2) Paragraphs (a)(2), (a)(3), (b), (c), (g), (k), (p), and (r) of this section apply to 

line-clearance tree trimming covered by the introductory text to paragraph 

(a)(1)(i)(E) of this section when performed by line-clearance tree trimmers who 

are not qualified employees. 

Because Respondent’s work falls under the purview of Part 1910, Subpart R, § 1910.269, section 

1910.28 would not apply as it states: “This section does not apply [t]o electric power generation, 

transmission, and distribution work covered by § 1910.269(g)(2)(i).” 29 C.F.R. 

§ 1910.28(a)(2)(vii). 

Respondent was hired by Xcel to trim and prune several dead cottonwood trees that were 

interfering with Xcel’s powerlines and could threaten Xcel’s power infrastructure. (Tr. 220; Exs. 

17 The standard further states: 

“Note to paragraph (a)(1)(i)(A): The types of installations covered by this paragraph include the 

generation, transmission, and distribution installations of electric utilities, as well as equivalent 

installations of industrial establishments. Subpart S of this part covers supplementary electric 

generating equipment that is used to supply a workplace for emergency, standby, or similar purposes 

only. (See paragraph (a)(1)(i)(B) of this section.)” 29 C.F.R. § 1910.269(a)(1)(i)(A). 

28 
 

 

C-10, C-11, C-19). However, it is unclear from the record whether Respondent’s employees would 

be considered “qualified” or “unqualified” for purposes of 29 C.F.R. § 1910.269 applicability. 

Assuming, arguendo, 29 C.F.R. § 1910.269 applies in this specific case, Respondent’s argument 

would fail in both the 10th Circuit Court of Appeals and D.C. Circuit Court of Appeals. 

Respondent has not met its affirmative defense in establishing the applicability of 29 C.F.R. 

§ 1910.269 to its employees. Even assuming the applicable of 29 C.F.R. § 1910.269, as discussed 

in further detail in Section IV(A)(1)(b)(i) above, Respondent recognized hazards remained as 

evidenced through the trainings it provided its employees. (Tr. 154, 246-48; Exs. C-16, R-40 at 

85-89). Respondent provided training on these hazards and also discussed the dangers of dead tree 

hazards, such as falling and portions of trees striking employees in their Job Safety Briefings and 

Job Hazard Assessments.18 (Tr. 154, 246; Exs. C-10, C-16, R-40 at 143-45). Thus, as Respondent 

recognized hazards remain, even if allegedly complying with 29 C.F.R. § 1910.269, Respondent 

still has a duty under section 5(a)(1) to safeguard its employees. See Brock v. Gen. Dynamics Land 

Sys. Div., 815 F.2d 1570, 1575-76 (D.C. Cir. 1987). 

ORDER 

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that: 

1. Citation 1, Item 1 is VACATED and no penalty is ASSESSED. 

18 As discussed herein, while the evidence demonstrates hazard recognition generally by Respondent and the industry, 

the evidence does not support a finding that Respondent had actual or constructive knowledge of the hazardous 

conditions at the worksite. 

29 
 

 

 

SO ORDERED 

/s/____________________________ 

Christopher D. Helms 

Judge, OSHRC 

Date: 

Denver, Colorado 

30