BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD


In the Matter of the Appeal of:

MARK CRAWFORD LOGGING
26 Walker Creek Road
Seiad Valley, CA 92686

                              Employer

 

Docket No.

01-R2D3-1137

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having taken the petition for reconsideration filed in the above-entitled matter by Mark Crawford Logging (Employer) under submission, makes the following decision after reconsideration.

JURISDICTION

On October 16, 2000, the Division of Occupational Safety and Health (the Division), through Compliance Officer Dennis Barker, conducted an accident investigation at Lovers Camp, Fort Jones, California (the site), a place of employment where Employer was conducting logging operations on federally owned land.

On March 8, 2001, the Division issued to Employer Citation 1, alleging a serious violation of section 6259(a) [felling dangerous trees and snags] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1 A civil penalty of $18,000 was proposed for the alleged violation.

Employer filed a timely appeal contesting the existence and classification of the violation and the reasonableness of the proposed penalty. In addition, Employer raised the Independent Employee Action Defense and asserted that the safety order was unconstitutionally vague.

A Board Administrative Law Judge [ALJ] heard the appeal on March 12, 2002, and issued a decision on April 11, 2002, denying Employer’s appeal but reducing the civil penalty to $14,400.

On May 13, 2002, Employer petitioned for reconsideration of the ALJ's decision, insofar as it denied Employer’s appeal. On June 14, 2002, the Division answered the petition and, on July 1, 2002, the Board took Employer's petition under submission and stayed the ALJ's decision.

ISSUES

Employer seeks relief from the decision on three of the grounds authorized by Labor Code section 6617 and section 390.1(a):

(1) That by…[the] decision made and filed by the…[ALJ], the Appeals Board acted without or in excess of its powers;
(2) That the evidence does not justify the [ALJ’s] findings of fact; and,
(3) That the findings of fact do not support the…[ALJ’s] decision.

More specifically, Employer argues that the Board, through the ALJ, acted without or in excess of its powers by misinterpreting section 6259(a) and, consequently, holding Employer to a standard unintended by the Standards Board, and by making “findings that were erroneous as a matter of law and an abuse of discretion.” The ALJ found that a dead tree appeared to be dangerous to the operation and, thus, first had to be felled to comply with section 6259(a). A challenge to that finding is the underlying basis of Employer’s allegations that the ALJ’s findings are erroneous and abusive, are not justified by the evidence, and do not support the decision.

EVIDENCE

On the day the accident occurred, Employer was harvesting some of the trees growing on a hillside and leaving others standing, in accordance with the sale contract Employer had entered into with the owner, the U. S. Forest Service. The Forest Service marked the trees Employer was to harvest and some dead trees Employer could cut down for operational or safety purposes. The remaining trees, dead and alive, were to be left standing, except that Employer could cut other trees that unduly burdened the logging operation or made it unsafe, subject to somewhat detailed reporting requirements.

The logging started at the bottom of the hill and progressed upward. Employer cleared a straight “road” from the bottom of the hill to the top. A wire rope or cable and pulley “Skyline” yarding system was installed along the centerline of the road to pull felled and trimmed trees (logs) or groups of logs (turns) up the hill to the landing area. It ran between an anchored pulley at the bottom of the hill and a pulley driven by a large, powerful logging machine known as a “yarder” at the hilltop landing area where logs were stored until transported by truck to a sawmill. 2

Employees known as “choker-setters” set short choker cables around individual logs or turns that were then rigged to the yarding system’s hauling cable by the “rigging-slinger” supervising the choker-setters. Employer’s contract included trees more than 50 feet of lateral distance beyond the sides of the road. To bring the trees felled and trimmed beyond the sides of the road over to the system’s hauling cable, a drop line was attached through a block or carriage to the system’s main cable, which ran on the same pulley track as the hauling cable. The rigger-slinger then walked the loose end of the drop line out to the turn, rigged the drop line to the choker on the turn and signaled the yarder operator that the turn was ready to be “broken out” or pulled from its position of rest.

After precautions were taken to assure that all employees in the area were warned to stand clear, the yarder operator caused the yarder to take up the slack on the drop line and pull the turn laterally toward the carriage on the main line through which the drop line was being drawn in.

Because many trees were to be left standing in the logging area under the terms of the sale, it often happened that intervening standing trees prevented the rigger-slinger from walking a straight line from the carriage to the turn when taking the end of the drop line out to the turn to rig it to the choker. Consequently, he would angle downhill to get around the intervening trees and then angle back uphill to reach the turn, so both the carriage and turn were farther uphill than the intervening tree. Under these circumstances, when the yarder operator took up the slack on the drop line to start breaking out a turn, the drop line rubbed or side washed against the downhill side of the intervening tree. A turn may weigh several thousand pounds, snags and rough terrain may increase its resistance to movement, and the yarder exerts strong pulling force. This causes the drop line, stretched between a movement resistant object and a compelling force, to exert considerable force on the downhill side of the intervening tree.

In this case, as rigging-slinger Eric Head took the end of the drop line out to a turn beyond the road, he angled downhill to get around a dead tree, and other trees uphill of it, that prevented him from walking straight from the carriage to the turn. Past the dead tree, he angled back uphill to the turn, rigged the line to the choker, and signaled the yarder operator to break out the turn. As that was being done, the drop line exerted force on the downhill side of the dead tree, causing it to fall over in an uphill direction. As the dead tree fell, it struck and seriously injured choker-setter Travis Black.

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The citation alleges a violation of section 6259 [Trees and Snags](a) of the Logging and Sawmill Safety Orders, which provides, in pertinent part, that, “All trees and snags which appear to be dangerous to any operation shall be felled.” At the hearing, Employer argued that by making the duty to fell trees and snags dependent upon whether they appear to be dangerous to a logging operation, the Standards Board did not provide employers with the reasonably clear and certain notice of what they must do to comply that is required by due process of law.

In its petition, Employer does not challenge the ALJ’s determination that the meaning of section 6259(a) is “reasonably ascertainable” and, thus, due process compliant. Instead, Employer asserts that the ALJ failed to properly ascertain that meaning and deviated from it by characterizing the duty imposed upon employers by section 6259(a) as follows:

…before beginning a break-out operation, the employer or its representative must ascertain whether there is a realistic possibility that any dead or live tree in the work area could be struck by the turn, drop line or other rigging in a manner that would cause all or part of its trunk or limbs to fall into an area where employees are working or standing by. (Decision, p. 7.)

Principal purposes of the California Occupational Safety and Health Act of 1973, stated in Labor Code section 6300, are to “assur[e] safe and healthful working conditions for all California working men and women by authorizing the enforcement of effective standards…[and to assist and encourage] employers to maintain safe and healthful working conditions.” By Labor Code section 6400(a), employers are obligated to “furnish employment and a place of employment that is safe and healthful for the employees therein.” An employer’s Injury and Illness Prevention Program must include a “system for identifying and evaluating workplace hazards” (Labor Code § 6401.7(a)(2)) and “methods and procedures for correcting unsafe or unhealthy conditions and work practices in a timely manner.” (Labor Code § 6401.7(a)(3)) Labor Code section 6402 prohibits an employer from permitting “any employee to go or be in any employment or place of employment which is not safe and healthful.” And, Labor Code section 6403(c) directs employers to do that which is “reasonably necessary to protect the life, safety, and health of employees.”

The Act was promulgated to accomplish these basic employee safety and health purposes. The purposes cannot be accomplished without the cooperation of employers who, in accordance with Labor Code section 6403(c), do what is reasonably necessary to comply with the implementing safety orders. Consequently, we believe that the Act notifies employers of their duty to exercise that level of care to comply with all applicable safety orders. (Pacific Erectors, Inc., Cal/OSHA App. 00-118, Decision After Reconsideration (Nov. 27, 2001) and Underground Construction Company, Inc., Cal/OSHA App. 98-4105, Decision After Reconsideration (Oct. 30, 2001), holding that employer safety inspections conducted pursuant to other safety orders were insufficient, are in accord.)

We conclude that the simple, straightforward language of section 6259(a) conveys the Standards Board’s intent and describes the safety standard employers must meet with sufficient clarity. If there are trees or snags in a logging work area that appear to present a danger to employees, the employer must fell the trees or snags by cutting, pushing or pulling them down.

The Division’s burden of proving a section 6259(a) violation under the facts of this case consisted of three elements: that the dead tree appeared dangerous to the operation because its appearance indicated that it was too weak or ill rooted to withstand the rubbing or side washing force applied to it by the drop line; that Employer did not fell the dead tree to protect employees against that danger; and, that an employee was exposed to the hazard created by Employer’s failure to fell the tree.

The unrefuted testimony of rigging-slinger Eric Head established that Employer did not fell the dead tree before engaging in the logging operation of breaking out the turn, that the dead tree was uprooted and fell over, endangering the operation, and that choker-setter Travis Black, an employee of Employer, was exposed to that danger. This left to the Division the burden of proving that, before the dead tree fell, it appeared to be dangerous to the operation and, therefore, was within the class of trees and snags to which the section 6259(a) felling duty applied.

The accident which gave rise to the investigation Division CompIiance Officer Dennis Barker initiated on October 16, 2000, occurred approximately three weeks earlier, on September 21, 2000. Logging operations had continued in the interim. Hence, Barker never saw the dead tree, but did view photographs of it, taken after it fell over, by Employer. He also conferred with Employer and interviewed witnesses.

Employer’s Exhibit B is a reasonably clear picture of the uprooted dead tree lying on the ground. Bark is missing around the bottom of the tree but the trunk and root stump otherwise appear unremarkable. The hearing record does not indicate whether the bark was missing from the trunk when the accident occurred or was stripped off by the drop line or post-accident efforts to move the tree away from the injured employee.

However, Barker, who has extensive logging and sawmill experience and knowledge, did not testify that any of Employer’s photographs of the uprooted tree revealed things about its pre-accident condition that created an appearance of danger. Nor did he testify that the physical characteristics of the log being broken out, the manner in which the breaking out operation was to be conducted or the terrain and other site conditions, made it appear or contributed to the appearance that the dead tree was dangerous to the operation.

None of the employee witnesses who were working at the site when the accident occurred testified that the dead tree appeared dangerous. Rigging-slinger Head, circled around the downhill side of the dead tree when taking the end of the drop line out to the turn and was thus aware that it would be side washed when the turn was broken out. He testified that it did not appear to endanger the operation. Supervisor David Kearns had not examined the dead tree while it was standing. After examining the tree after the accident, he opined that it did not present a danger because “it looked like any other snag and it wasn’t close to the road line.” The ALJ found their testimony to be incredible. However, discrediting that evidence as proof of the negative, i. e., that the tree did not appear to be in danger of falling, leaves an evidentiary blank that does nothing to help the Division meet its initial burden of proving the converse positive, i.e., that the tree did appear to be in danger of falling.

The ALJ predicated his finding that the dead tree appeared to be dangerous on “the physical facts.” Subordinately, he found that rigging-slinger Head knew the drop line would create a side wash when the turn was broken out. Next he found that Head could have seen that the dead tree was the one that would be contacted by the side-washing drop line. Then he found that, “given the weight of the turn and the force needed to overcome its inertia and drag it over to the corridor (road) … [Head] should have realized that a great deal of lateral force would be exerted on the dead tree.” From these findings, the ALJ concludes “that Head could reasonably have anticipated the danger”3 of the dead tree being forced over into the work area occupied by employee Black.

The ALJ’s finding that Head knew the drop line would create a side wash is supported by Head’s testimony. The other findings are predicated on the assumption that Head did not realize that the dead tree would be side washed by the break out operation and, thus, did not take into account the side washing force the break out would generate and impose on the dead tree before signaling for the break out to proceed. However, neither Head nor any other witness testified that Head was unaware the dead tree would be side washed, that he lacked the logging experience necessary to estimate reasonably the apparent force of the side wash and the apparent ability of the dead tree to withstand that force, or that he failed to consider those factors before proceeding. Employer’s belief that the Forest Service’s snag cutting rules were onerous suggests a motive for taking liberties with section 6259(a) but does not prove that was done.

Nor does the fact that the dead tree was pushed over tend to prove that it appeared to endanger the operation before it fell. In section 6259(a), the Standards Board recognized that assessing the danger that a tree might pose to a logging operation is not an exact science by limiting the class of trees and snags that must be felled to those, “which appear to be dangerous to any operation….”

We agree with the ALJ’s assertion that the appropriate and intended means of measuring whether a tree or snag appears to be dangerous to a particular logging operation, is to base the finding on how “a reasonable person, experienced in logging operations” (ALJ decision, p. 7) would view the matter.

However, we disagree with his conclusion that, under that test, the Division proved by a preponderance of the evidence presented that the dead tree appeared to be dangerous to the break out operation. No “reasonable person experienced in logging operations” testified that when considered in the context of the terrain, the weight of the turn, and the set-up and execution of the break out, the dead tree appeared to endanger the operation. Nor did the Division present any other evidence from which that appearance can competently and reasonably be inferred. Accordingly, we find that the Division failed to prove that essential element of a section 6259(a) violation and grant Employer’s appeal from Citation 1 and the related penalty.

DECISION AFTER RECONSIDERATION

Employer’s appeal is granted. The related $14,400 civil penalty is set aside.

MARCY V. SAUNDERS, Member
GERALD P. O'HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: January 30, 2003

1 Unless otherwise noted, all section references are to Title 8 of the California Code of Regulations.
2 “Choker”, “landing”, “snag”, “turn”, and “yarding” are defined in section 6249.
3 All quotation-marked portions of this paragraph appear on p. 8 of the ALJ’s decision.