The recent decision in Secretary of Labor v. Asplundh Tree Expert, LLC discussed feasible and effective methods to reduce or eliminate harm to employees performing tree trimming operations. Of course, in this field, proper and well-documented training of employees is needed given the danger of falls and falling objects. The decision arose from an unfortunate November 2, 2020 incident where a worker for Asplundh Tree Expert, LLC (“Asplundh”) fell during a tree trimming operation in Colorado and suffered severe injuries.

Asplundh is a nationwide tree-trimming company with over 34,000 employees. It had contracted with an electric utility company to prune and manage vegetation affecting its power infrastructure including trimming and pruning several dead trees that were interfering with the utility’s powerlines. On the day of the incident, Asplundh sent its crew consisting of the crew foreman, James Haynes and two crewmen to remove the top portions of several large trees. Upon arrival at this site, the crew performed a Job Safety Briefing prior to commencing work, which included a description of the tasks performed, necessary tools, potential hazards including dead trees, and steps to ensure safety. The Job Safety Briefing was signed-off by each crew member.

Although Foreman Haynes had determined that they needed a bucket truck that could extend 60 to 70 feet carrying a tree trimmer (a “60/70 bucket truck”) another employee for Asplundh testified and confirmed that they did not have authority to use this type of truck on this site. As alternative, Asplundh provided a second crew with a smaller squirt boom that can lift the tree trimmer in the air up to a 42-foot working height. Prior to the second crew’s arrival, the crew member from the first crew who was an experienced climber (with 17 months of experience), and who was unaware of the second crew’s arrival, began to climb to dead tree and made it up to 35 feet, at which point he stopped being unable to climb further due to the tree’s structural weakness. The remaining 35 feet of the tree needed to be cut and prior to beginning his work, he tied into a fall protection system by securing his lanyard around the main stem of the tree while securing his climbing line around the branch he was standing on. The crewmember began to make his cuts which were unobserved by the crew on the ground who were working on the opposite side. It was determined post-incident that he performed this cut improperly by a mere few inches, which caused the top of the tree to fall in an unintended direction. The top portion of the tree (weighing about 875 lbs.) struck the branch on which he was standing, and which his tie-off was secured. The impact further led to the lanyard around the main stem to lift over the area, in which he was tied off, and therefore caused him to fall 35 feet to the ground sustaining various serious injuries.

Following the incident, OSHA investigated and issued a violation of the Occupational Safety and Health Act’s general duty clause in alleging that Asplundh “did not provide safe means and methods to remove a dead cottonwood tree in cold weather” which exposed their employees to a struck-by and fall hazards while performing tree operations. The Citation further indicated the feasible and effective means existed to eliminate or reduce the hazards by among other methods “ensuring that all dead limbs are trimmed from a safe distance by using a bucket truck or similar equipment”.

The general duty clause requires employers to furnish their employees a “place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm…” To prove a violation of the general duty clause, the Secretary of Labor (“Secretary”) must prove a (1) a condition or activity in the workplace presented a hazard; (2) the employee or its industry standard recognized the hazard; (3) the hazard was likely to cause death or serious harm; and (4) that a feasible means existed to eliminate or materially reduce the hazard. The Secretary must also prove the employer knew or with the exercise of reasonable diligence could have known of the hazardous condition.

The Administrative Law Judge (“ALJ”) found that Secretary succeeded in showing the existence of some but not all of the above-mentioned elements. The conditions of falling trees pose hazards to Asplundh’s employees and the Secretary was able to show through their expert witness that trimming dead trees such as cottonwood could lead to falling and crushing employees given that the dead trees are suspect and often not structurally sound and unpredictable. Asplundh acknowledged as much from this its job briefings, Job Hazard Assessment and investigative reports and further acknowledged and recognized the hazard. Supervisory personnel also recognized the hazards and had signed the Job Safety Briefing. They provided written safety policies defining the hazards associated with dead trees and discussed it within their Line Clearance Qualification Standard Employer Training Manual, which specifically addressed the “felling path” of a tree, struck-by and falling hazards, and the danger zone around the tree to be felled. The manual further discussed the type of cuts to be used when trimming trees. The materials also referenced industry standards regarding safety tree trimming measures for which Asplundh’s employees were trained including fall protection systems and tie-in procedures. The existence of these standards established the industry’s recognition of the hazards. Furthermore, the actual incident itself demonstrated and proved that that the hazard was likely to cause severe injury and/or death.

However, the ALJ found that the proposed abatement in the Citation was not feasible. The industry standards did not require use of 60/70 bucket truck and there was nothing in this instance that required one. The Secretary’s own expert conceded that a qualified climber could perform the work with the equipment provided and the use of the bucket truck in this instance would also actually create an additional electrical hazard as the trees were in proximity to power lines. Asplundh provided training and associated materials that met or exceeded industry standards. Here, the ALJ found that the Secretary failed to present evidence that training enforcement or employee supervision would materially reduce the hazard. Furthermore, since the incident happened so quickly at the elevation, other employees would not be able to impact the direction of the falling portion of the tree or to correct the crewmember’s mistake of cutting too deeply into the trees by mere inches. In light of the above, the Citation was vacated.

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The recent decision in Secretary of Labor v. Americold Logistics, LLC reaffirms the need for construction companies to provide proper training and establish rules and regulations for their employees when using powered industrial vehicles (“PIVs”). Further, companies can better ensure employee safety by conducting routine, documented, monitoring of employee practices and performance, while also maintaining and enforcing their disciplinary programs.

This decision arose from a work-place incident where an employee was severely injured while working in a large cold food storage facility in Georgia. Americold Logistic, LLC (“Americold”) temporarily stores food products and performs various operations from its Savannah 2 facility. Each shift had four floor supervisors, and each supervisor was responsible for a team that consisted of PIV operators and laborers. Different types of PIVs were used at this facility including fork trucks that were used to load and unload product and move around the facility, and reach trucks that were used to stack and remove products from the racking systems. Tractor trailers containing the food products would be unloaded at the loading dock with the use of the fork trucks. A PIV operator would then move food products into the blast freezer where they would be flash frozen. Once the food products were frozen, laborers would restack the products on pallets and PIV operators would then use the reach trucks to move them into freezers.

On July 7, 2022, an Americold employee who was driving a fork truck and making a turn, stuck out his food and caught it between a bollard and the truck, injuring his ankle. OSHA was notified of the accident and an OSHA Compliance Safety and Health Officer (“CSHO”) appeared on-site and conducted an investigation. During her investigation, the CSHO noted that she even had to step-out of the way from a PIV during her walk of the premises with management. She appeared again in September 2022 and observed similar conditions as in her earlier visit. She also interviewed the injured employee. The CSHO subsequently issued safety citations including permitting an untrained person to operate a PIV. The applicable safety standard required an employer to “ensure that each operator has successfully completed the training required by this paragraph” prior to being allowed to operate the vehicle.

To prove a violation, the Secretary of Labor (“Secretary”) must show by a preponderance of the evidence (i.e., that it was more likely than not) that (1) the cited standard applies, (2) there was failure to comply with the cite standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or should have known of the condition with the exercise of reasonable diligence.

Americold’s former floor supervisor, Lamar Church testified as to Americold’s training procedures for PIV operators and explained that their training consisted of three parts. New operators would first be shown a 30-minute video created by the PIV manufacturer that addressed different operating and safety topics. The employees would then attend a class held by a supervisor who presented a 76-slide PowerPoint presentation on the vehicles’ operations and safety. The employees would then complete their training by receiving hands-on training and proficiency testing. Operators would also receive annual refresher training and recertifications, every three years. However, if an operator was involved in an accident or was observed operating a PIV unsafely, they would be mandated to immediately take the refresher and recertification. Americold had procedures and rules in place for PIV use, which included instructing operators to slow down and sound their horn when approaching pedestrians (within the warehouse). An operator would also complete a vehicle inspection checklist before starting-up the vehicle, and if it failed the inspection, it would be taken out of service. The company also had installed software which required an employee to have an ID badge with the appropriate credentials, which they would have to swipe before starting the vehicle. The PIVs also had speed governors installed that limited the vehicle’s speed to five miles per hour.

Furthermore, floor supervisors were responsible for conducting three “behavior-based safety observations” per day which included observing an employee conducting their work for 30 minutes, after which the floor supervisor would coach the employees on what was observed. Floor supervisors also had to conduct “coaching method observations” twice a day involving observing an employee conducting certain job skills. Americold’s disciplinary program included termination for serious safety rule violations. If a supervisor observed such behavior, they could request an employee’s immediate termination and the request would then be reviewed by a safety panel which determined the final outcome for the employee.

Here, Americold’s records indicated that the injured employee had not completed their training program and Americold conceded that the employee was not authorized to operate the PIV. The employee was exposed to the hazards associated with untrained use of a PIV and was in fact severely injured. The Administrative Law Judge (“ALJ”) found that Secretary had established the first three elements of the alleged violation. However, the record was unclear as to whether any supervisory employee had actual or constructive knowledge of the violation.

The injured employee did not testify at the hearing, and the Secretary only presented the CSHO’s account of her interview with the employee without documentation, in which she recalled that another PIV driver badged-through the PIV’s system permitting this employee to use it. She also was told that a supervisor overrode the system after this employee failed the safety questions. However, the record contained no evidence corroborating the injured employee’s statement as provided through the CSHO. Further, the ALJ found the CSHO’s account that unnamed employees informed her that supervisors had observed unauthorized employees using PIVs, as unpersuasive. Therefore, the Secretary failed to establish that Americold had actual knowledge of the violative condition.

The ALJ’s Decision then looked at whether Americold should have known or been aware of this violative condition. The evidence presented in fact showed that Americold had written rules prohibiting unauthorized use of PIVs which included training provided to all employees. They also had controls in place requiring ID badges showing training and certification to operate the machine and employees had to perform a safety inspection prior to even starting the PIV. Although Americold conceded that an authorized employee’s card could be used by an unauthorized employee, Americold was unaware of any similar instances and Secretary had not shown any evidence of this practice. Americold also had two forms of routine, documented, monitoring of employee safety and performance as well as a disciplinary program for which it established it had terminated three of its employees, months prior to the accident for PIV violations. Under these circumstances the Secretary failed to meet its burden and the Citation was vacated.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

Power saws, shears, presses and other machines typically used in construction require one or more methods of machine guarding to protect operators from the hazards created by using these machines, and companies cannot merely delegate such duty to its own employees. The recent decision in Secretary of Labor v. Good Food Concepts, LLC d/b/a Ranch Food Directs is instructive as to the need for machine guarding. Although this matter arose from an unfortunate accident involving use of a meat grinder leading to the amputation of the worker’s fingers, the use of equipment with similar hazards are common in the construction industry and even if a company has stringent work rules in place they do not act as a substitute for guarding when an employee is in the zone of danger.

Ranch Foods is a meat processing business which also operates a retail store in Colorado that had approximately 15 employees in 2021. The owner of Ranch Foods, Mr. Michael Callicrate, visited the store twice a day, four to five times a week. Although he oversaw store operations, he delegated management and supervision to the store’s general manager, Mr. John Morrill and the head of the meat department, Mr. John Wichman. Mr. Morrill had held his position for 3 ½ years and typically he would visit the store every day to pick up receipts from the prior night and discuss any issues/needs with the employees during these visits. He was charged with safety compliance and discipline at the store and could remove employees for safety violations although he had never conducted any internal safety audits nor examined any of the equipment. If equipment was not operating properly, he expected his employees to report these problems and stop using that machine. They relied on “observation by managers and other employees” to ensure a safe work environment but safety violations were not documented, unless disciplinary action was required. They also posed a Code of Safe Practices in the common area, along with other labor law materials and schedules. Ranch Foods did not have a formal safety and health training plan and employees were given a handbook that contained the company’s disciplinary policy. Specific safety and equipment training was expected to be conducted by an employee’s immediate supervisor. Mr. Wichman, who held over 50 years of experience in the meat industry, trained new meat-cutters regarding the operation of meat cutting tools and machinery and was responsible for ensuring the employees operated the machinery safely. The employee involved in this underlying accident (hereinafter “Ms. Doe”) had been trained by Mr. Wichman, including the use of the meat grinder and the use of a stomper, an 18-inch cylindrical tool used to push meat down the throat of the grinder as well as cleaning and disassembling the grinder’s components which generally consisted of a hopper, a throat, an auger and rotating blade. The operator would place meat in the hopper and push down the throat of the grinder towards auger and blades that ground the meat. The stomper could also be used to push the meat down the grinder throat but sometimes the stomper was ineffective, and operators would use their fingers to dislodge meat from the walls of the throat. The grinder jammed frequently, and Mr. Wichman had trained this employee how to clear the jam by reversing it and then re-running it. If the jam did not clear, the operator was expected to disassemble and clean the machine. Mr. Wichman did not utilize any training materials nor videos, nor had he reviewed the grinder’s manual or OSHA publications pertaining to the safe use of meat grinders. Mr. Wichman trained this worker to avoid using her fingers to push the meat down the throat of the grinder but even though he knew it was dangerous, Mr. Wichman used his own fingers to push meat down the throat to about 2 inches (of the total 4 ¾ inches in length) since he was comfortable with this practice given his experience but advised employees not to do so because it was unsafe. No written rule existed prohibiting this practice and he had never formally reprimanded any employee for doing so.

On June 11, 2021, Ms. Doe was operating the meat grinder when it jammed. She reversed the machine but was unsuccessful. She then observed that extra meat was on the side of the throat, so she reached into the throat to push it towards the auger. At that point her right hand was caught and pulled into the grinder. Mr. Wichman unplugged grinder and an ambulance. The EMS personnel, after deliberation transported Ms. Doe with the grinder to the hospital. After emergency surgery which reversed the grinder’s motor, free the hand and amputated four fingers.

OSHA received notice that a worker had lost four fingers in a meat grinder and on June 15, 2021, a Safety Officer investigated the store, interviewed employees and took photographs. Following the investigation, Ranch Food was issued multiple citations. The relevant citation for our discussion pertained to violation of the safety standard which requires, one or more methods of machine guarding to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks, by methods such as barrier guards, two-hand tripping devices, electronic safety devices, etc. The citation set forth that Ranch Foods failed to ensure that the grinder was guarded effectively or that tools other than hands were used for pushing small amounts of meat through the grinder when the stomper was ineffective.

The Administrative Law Judge (hereinafter “ALJ”) found that the cited standard applied in this instance. The meat grinder presented a point of operation, ingoing nip point, and rotating parts with the potential for serious injury, which was being used during its “normal production operations” and did not a maintenance activity, which would have involved a different safety standard (lockout/tagout standard which places a larger onus on the equipment operator). The purpose of this safety standard is to not make it primarily dependent on human behavior but rather to provide a safe environment “regardless of the employee’s intelligence, skills and tendency to neglect a specified course of conduct”. Ranch Foods argued that the grinder’s own design prevented employee’s exposure as adult hand could not enter the zone of danger and further that the stomper, alleviated the need for use of an operator’s fingers to push meat into the throat of the grinder and further that operators were warned against this use. However, the safety standard prohibits tools to be used in lieu of a guard and therefore the stomper was inadequate. Moreover, the safety standard does not permit guarding by work rules but rather requires a physical guard so as not to depend upon correct employee behavior. The practice of inserting their fingers in the meat grinder to dislodge meat within 2 to 4 inches from the rotating auger, as confirmed by Mr. Wichman and other employee testimony, established that this was a common practice for which it was foreseeable that an operator would put their hands within the zone of danger. The inadequacies of Ranch Food’s safety training and precautions established that supervisor, Mr. Wichman, own violation of safety rules was foreseeable to impute knowledge of these violative conditions on the Ranch Foods of this practice. Furthermore, an employer could not merely delegate the duty of safety to its employees, and the general manager, Mr. Morrill’s reliance on employees to act safely and report any safety issues and his own failure to discipline any unsafe actions or examine equipment for safe operation did not allow Ranch Foods to escape responsibility. Consequently, the Citation was affirmed.

Ranch Foods was also cited for failing to timely notify OSHA of this accident, which was also affirmed by the ALJ. Pursuant to the applicable rules, all employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported within 8 hours, while an in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445