ALBANY — “There was a weird noise coming from the chipper,” said tree climber Brendon John Andres, crying on the witness stand last week at an Occupational Safety and Health Administration hearing in Albany as he recalled the death over a year ago of  a co-worker.

Justus Booze was 23 and a day laborer halfway through his first day on the job for Countryside Tree Care when he died on May 4, 2016, caught in the rotating blades of a wood chipper.

Booze had been hired for the day — his first time ever doing tree care or working for Countryside Tree Care — when he was killed. He had been set to earn $60 for the day.

Company owner Tony Watson, 46, is contesting fines totalling $141,000 levied against him by OSHA for the death that occurred as he and his crew worked at a home on Guilderland’s Placid Drive.

Watson’s attorney stopped just short of suggesting that Booze had deliberately jumped into the chipper in a suicide, by asking Watson about an observation Watson had made to investigators just minutes after the death: “It was almost like he threw himself into the machine or something, it was that quick.”

OSHA is an agency within the United States Department of Labor, responsible for ensuring safety at work.

Watson is charged with four “serious” violations, for exposing workers to hazards that OSHA said posed a threat of “serious injury” including possible amputation, laceration, eye injury, and head trauma that could result from use of chainsaws, from flying pieces of wood or debris, and from logs falling from overhead.

These citations were for failing to provide employees with proper personal protective equipment including chaps, helmets, safety glasses, and gloves, and for failing to train them in why this equipment is necessary and how to use it. Fines for the serious violations, together, totaled $17,102.

The “willful” general-duty citation, with its fine of $124,709, says Watson failed to provide a workplace free from recognized hazards likely to cause death or serious injury — specifically, the danger of being caught in the rotating blades or moving parts of a wood chipper — and failed to ensure that only employees trained in safe practices used the chipper. The citation says that, at the three worksites on May 4, 2016, Watson and his crew engaged in unsafe practices, including leaning into and reaching into the infeed hopper; standing to the left of the wood, on the left of the center line of the infeed hopper; pushing small pieces of wood and branches in by hand; and standing in front of the wood chipper, with their backs to it, while manipulating large tree limbs into the infeed hopper.

Since Watson and OSHA were unable to reach agreement on the fines during a months-long period of negotiation, a trial was held last week before administrative law Judge William S. Coleman, who came from Washington, D.C. to hear the case. The trial ran from Oct. 25 through 27 in a borrowed courtroom at the Albany County Courthouse. Coleman explained from the bench that it is his responsibility to decide whether fines should be levied, and how much, irrespective of the amount initially levied by OSHA.

No decision is expected for months. Before the judge can rule, the attorneys on both sides have until Jan. 26 to submit briefs — the written equivalent of closing arguments — and until Feb. 9 to submit counter-briefs if they wish. Then Coleman will render a decision “as expeditiously as possible,” he said in the courtroom on Friday.

Fines collected by OSHA go to the National Treasury, not to OSHA itself or to workers who are injured or to the families of those who are killed. The purpose of OSHA fines is deterrence, to convince other employers that it makes financial sense to maintain a safe workplace.

The ceiling on a willful-violation fine was raised 78 percent in June 2016, its first-ever increase, from $70,000 to $124,709. OSHA’s website says this increase was necessary as a cost-of-living adjustment, to keep the fine effective as a deterrent.

Watson’s willful-violation fine, levied several months later, was set at that maximum.

Matt London of the employee-safety organization NorthEast New York Coalition for Occupational Safety and Health said this week that NENY COSH is interested in seeing that employers are held fully accountable — both civilly and criminally — for serious incidents, especially fatalities. London said that NENY COSH representatives had met with the Albany County District Attorney’s Office twice to discuss the issue generally and also specifically in regard to Countryside Tree Service, once shortly after Booze’s death, and once soon after OSHA issued citations.

Asked if the district attorney is considering bringing criminal charges against Watson, spokeswoman Heather Orth said that she could not comment.

Assistant District Attorney Linda Griggs was in the gallery, observing, for all three days of Watson’s trial.

OSHA civil trials are relatively rare, and criminal prosecution is even rarer.

Coleman wrote in an email after the trial, in response to an Enterprise question, that his “non-scientific estimate” based on his “anecdotal experience” is that about 5 percent of cases in which an employer files a timely “notice of contest” to an OSHA citation and notice of penalties actually proceed to civil trial.

Opening statements

Tony Watson’s wood chipper “ingested Mr. Booze headfirst, ending his life in an instant,” the courtroom heard on Thursday during the opening statement by Terrence Duncan of the Office of the Solicitor, United States Department of Labor, representing OSHA.

Duncan noted that it was Justus Booze’s first day, and that his fiancée was expecting their first child. “He was trying to make ends meet for his family,” the attorney said.

Watson gave Booze no training and no personal protective equipment “except a pair of gloves,” Duncan said. Watson did not intervene once to stop Booze from engaging in unsafe practices, he argued.

Referring to Watson, Duncan said that he would present himself as a victim and say “very little about the person who is not present in the courtroom,” Booze. “He will testify falsely that he told Justus Booze not to do anything but stand to the side and watch. He will testify falsely that he watched closely except for one instant when he looked away, and that’s when Justus Booze fed the chipper and caused his own death,” Duncan said.

Booze “didn’t have to die,” Duncan said. “And there is one person who is solely responsible for the events of May 4, and that is Tony Watson.”

Watson’s private-practice attorney, William Fanciullo of Albany, said, “A terrible thing happened. We’re not trying to deny that. Everybody is upset about that. But the blame does not belong to Tony Watson.”

The $124,000 fine should have been reduced, Fanciullo said. Watson had no prior OSHA violations, and no prior employee injuries on the job, “except possibly a minor finger injury, and I’m not admitting that, I’m referring to OSHA documents.”

The only possible reason OSHA refused to reduce the $124,000 fine, he said, was “retribution.” The courtroom did learn, however, near the end of the three-day hearing, that OSHA had offered to reduce the $124,000 fine by 10 percent.

There was no negligence and no willful misconduct, Fanciullo said, promising to show that there was no liability and should be no penalty.

Surveillance video

Watson’s crew of five, including him, as well as one independent crane operator, worked at three jobs that day. The jobs were at houses on Church Road, DiBella Drive, and Placid Drive — all in Guilderland. The court learned that the OSHA citations had all contained an error, listing Salvia Lane as one of the sites, when it should have been DiBella Drive.

The last address, at 215 Placid Drive, was where what Fanciullo consistently referred to as “the unfortunate incident” occurred.

Surveillance footage exists only of the second job, at 1019 DiBella Drive, owned by Stephen Prokrym, an officer with the Coeymans Police Department. Prokrym said he has five cameras outside and one inside his home, “and a couple hidden.”

A camera trained on the front yard captured images of the crew at work, and two 15-minute clips were introduced into evidence and watched multiple times and stopped at many points for discussion of the hazards of various practices allegedly seen in them. The video could not be seen from the gallery.

On the witness stand, OSHA’s assistant area director, Amy Phillips, stopped the video at many different points, saying that it showed, among other things: Booze standing in front of the chipper with his back to it while manipulating a limb in with difficulty; Booze standing between two logs that are being fed into the chipper; Booze standing between the chipper and limbs that someone else is feeding in; a number of employees standing right in front of the chipper at the same time; Booze standing on the left side of the wood to the left of the center line of the chipper while feeding it; and Booze leaning over and sweeping small pieces off the tray and pushing them in by hand.

She also pointed out numerous instances of other employees performing these or other practices that she said were unsafe, including employees standing below logs dangled from the crane overhead.

It is always safer for workers to stand to the right, not to the left or in the center, when feeding a chipper, Phillips testified; Andres had also said that this particular chipper had a tendency to whip branches toward the left, increasing the hazard. Workers should not stand in front of the chipper while it is on, and employees should not stand in front of the chipper while others are feeding it, she said. Workers should use a push paddle to feed in leaves and smaller brush, and should not turn their backs on the chipper when feeding it.

The video also showed Watson working “in close proximity” to his employees, Phillips said, “On the video you could see that he was with them when the employees were exposed [to the hazards].” Watson told her, in a later interview, she said, that “he was aware of the hazards on the job site.” He also knew, she testified, that he had two very inexperienced workers on site. Watson had told her, she said, that Booze “hadn’t even used a weed-whacker before.”

Duncan asked Phillips what the workers would have learned, had they been trained.

They would have known not to lean into the infeed hopper, she said. They would have known to use a push paddle; to stand to the right of center of the machine and to the right of the log; to not have multiple people in front of the chipper at one time; and to not turn their backs.

The camera was placed up high on the house, Watson’s attorney argued, making it look as though the workers were closer to the chipper than they really were.

Watson’s attorney argued that the second job — the only one with video — was substantially different in type from the first and third. The difference, he said, was that, in the first and third jobs, Watson and his crew had visited a week earlier and prepared the trees by taking down some of the limbs.

So the level of visual obstruction was greater at the second job — the one seen in the video — since all of the trees’ leaf-covered limbs were being manipulated and pulled through the site at the DiBella home, according to Watson and his attorney. So, Watson testified, he did not see what his employees were doing at DiBella that day; if he had seen them engaging in any unsafe practices, he would have “absolutely” stopped them, he said.

The video proves nothing, because it cannot be assumed, Fanciullo said, that the crew engaged in unsafe practices at the first and third jobs, because those were substantially different.

Co-worker’s account

Brendon John Andres, who was there when Booze died, requested “affected party status” at the proceedings, which would have allowed him to sit in the gallery throughout the hearing and listen to all testimony. He said that he had been “greatly affected” by Booze’s death and that he would like to be present as “part of my healing as a human being.”

The judge ruled that, according to precedent, an “affected party” needed to be exposed to the hazards at the time that he or she is interviewed by OSHA, and said that Andres did not qualify, since he had stopped working for Watson about a week after Booze died, before speaking with OSHA.

But he did allow Andres to testify.

Andres said he worked for Tony Watson for about a total of nine months, over a two-year period, although he has been working in the tree industry for 10 years. He stopped working for him about a week after Booze’s death, he confirmed.

On the first job, the four workers, including Andres, waited for Watson to arrive, and, when he did, “the only guidance I remember [him giving] was guiding us to the [job] site,” he said.

Andres said there was no discussion between Watson and his two less experienced employees that day about how to use the chipper, and that he, Andres, took it on himself to tell them about safety features of the chipper.

Duncan asked Andres if he had told OSHA in an interview that he had had some problems with the chipper before and if that was why he warned Booze, and Andres testified that that was correct. Reached by phone and asked later what problems he had had with the chipper, Andres told The Enterprise he was not allowed to discuss his testimony.

Andres said in court that his job was to climb the tree and use a chainsaw to make cuts. The crane would take the pieces of wood down from the tree, he said. He did not remember any of the workers below ever wearing helmets, he said, although Watson usually “had a couple of helmets lying around.”

Andres said that wearing chaps for leg protection is advised for those working with chainsaws, but that, in a tree, they limit mobility, so “most people don’t wear them in the trees.” He said he wasn’t wearing chaps, although he owned some; he was wearing sunglasses that he had brought.

At the third house, where Booze died, Andres said, they were working on the third tree, a pine. He was up in the tree, with his back toward the home, facing the street and the chipper. They had just removed the top of the tree.

Watson had just laid the treetop in the street and was cutting it with a chainsaw. Watson’s back was to the chipper, he said.

As he testified, Andres struggled to speak. His foot pounded several times against the wooden floor, but he was otherwise silent.

When he managed to speak, his voice was strangled. “I heard the chipper making a weird noise,” he said, pausing before again saying, through tears, “I heard the chipper making a weird noise.

“Like it wasn’t chopping wood,” he said.

He looked down from his perch at Watson, he said. Watson was looking up at him, “stunned at what had just happened,” Andres said. Watson was “white as a ghost.”

Andres looked down and “seen feet hanging out of the chipper,” he said.

Watson shut the machine down and called police, Andres said. The crane operator sent the crane over to bring Andres down from the tree. All the workers gathered together, away from the chipper. Soon there were police, grief counselors, and OSHA investigators there, he said. Schoolbuses were bringing children home, he said.

He did not see the actual event, Andres said. The last time he saw Booze alive, the young man was standing next to the chipper. “There was nothing to pick up and put in the chipper,” Andres said.

It was about a minute later that he heard the “weird noise.”

Andres said that everyone but him, including Booze, had fed the chipper at the third job. He was asked if, as a more experienced worker in the industry, he knew that Watson relied on him for supervision? He said, “It was not stated, not really, I didn’t know.”

Andres also testified that it was everyone’s job to pick up little pieces of wood and feed them into the chipper and that everyone was feeding the machine, which was sometimes on and sometimes off.

Duncan read a quote from interview notes with the other inexperienced employee who was there that day, John Ciaccio, who told OSHA representatives that he guessed that what might have happened to Booze was, “I think he tried to pick up the little bits of brush on the road and push it in with his hands.”

Duncan continued reading what Ciaccio had said: “He had seen me pick up small stuff and push it in, so I think maybe he picked up some small stuff on the road, and pushed it in. I had done that.”

Coleman accepted these notes, signed by Ciaccio, into evidence but said that, since Ciaccio had no longer been an employee of Countryside Tree Service when the interview was done in May 2016, he would need to treat it as hearsay and not accept anything in it as fact. Coleman was following the OSHA definition of an “employee,” as someone still exposed to the workplace’s hazards. He told The Enterprise that he could not comment further, since interpretation was involved.

Tony Watson takes the stand

Asked if he had a training program, Watson said, “Not like a big company.” He said that his safety method was, “I try to do, basically, everything myself.” Specifically, he runs the chainsaw and carries wood over to the chipper with his Dingo, a compact utility loader.

Watson testified that he told Booze and Ciaccio that he didn’t want them putting any brush into the machine when the feed wheels were running, although they could feed brush into it when it was turned off. He said they could feed it when it was running, as long as he or Bobby Burton were standing there, directly supervising.

Watson said he told Booze about how to turn the machine off, and about the reverse bar that runs along the top of the machine, and about the “last-chance cables,” cords that hang on either side, right in front of the feed wheels, that can stop the chipper in an emergency, if they can be pulled.

He thought that, if the two inexperienced men — Booze and Ciaccio — were feeding the chipper while it was running, Brendon, the tree climber, or Bobby Burton, who was experienced at using the chipper, would have been standing right there, or, if they weren’t, the machine would have been turned off, he said.

Watson said, “I can’t even believe that video, that they [his two more experienced employees] let him [Booze] run them [branches] through like that.”

“Would you sometimes rely on these guys to oversee proper procedures?” Watson’s attorney asked, referring to the two more experienced workers, Andres and Burton. “Yes,” Watson answered.

“And did they know that?” he was asked. “They should have,” he said.

“It’s your understanding that they did?” “Yes,” he said.

Watson really only needs one employee on the job with him, he said. Once the trees are on the ground, he prefers to be the one to use a chainsaw to cut them up, and he then uses a Dingo, which he said was a “mini skid steer,” himself, to carry them over to and lift them into the wood chipper.

So, on May 4, 2016, he said, “I had two guys more than I needed.”

Watson explained that he had let Ciaccio work that day because he had worked for him before — piling up brush, not putting it into the chipper while the chipper was running — and he didn’t have the heart to tell him he didn’t need him anymore. He agreed to hire Booze for the day after Burton, who was Booze’s close friend, told Watson several times that Booze needed money and asked him to give him work.  

Watson had met Booze before, because in the past Booze and Burton had been roommates. His perception of Booze was, Watson said, “Nice guy. I liked him.” Watson thought he seemed responsible; he knew the young men had been paying their rent when they had lived together, and that Booze had held down a steady job as a dishwasher.

That was why, Watson said, Burton knew that, if he could make Watson feel bad for Booze’s financial situation, Watson would agree to take him on.

“It was just that I was being a nice guy,” Watson said on the stand, “and I guess that didn’t work out.”

Watson has never looked at OSHA’s website, where it gives recommendations of safe practices involving the use of wood chippers, he testified; he has abated all of the safety concerns outlined in the citations. He described, for instance, the helmets that his workers now wear as being outfitted with earmuffs for sound protection and as having a built-in Bluetooth communication system.

Watson’s financial situation

Watson has no savings, and few assets owned outright, the court heard.

He lives in a home his mother bought in 2008 for $200,000, on which about $170,000 is still owed. The house is still in her name, but he pays the mortgage, Watson said.

His mother, Linda Housel, died in January 2017, according to her obituary.

Watson owns three trucks, on which he owes a total of about $80,000; only one, a 1991 Ford F-600 bought secondhand about 15 years ago, is owned outright. He didn’t say how much the F-600 is worth.

On the Dingo mini skid steer, he said, which he bought in 2013, he has about a year and a half of payments left; he pays $450 a month.

He bought the chipper in 2003, he said, and has paid it off. He estimated its value at between $8,000 and $10,000.

He owns a 1998 bucket truck, bought secondhand for $17,000 in 2009; he didn’t know its current value, but said he had seen one for sale for $4,500 in Guilderland that was in better shape than his, “that sat for the longest time.”

He also has a stump grinder that he bought in 2005 or 2006, which cost him about $20,000; he estimated its worth at “maybe $10,000 at the very most.”

He said he has about $2,000 or $3,000 at most in his checking account at a time and that he makes payroll from that account.

Watson has some credit-card debt, he said, although his lawyer did not ask him to specify how much.

He has no computer, he said.

He has two daughters, age 26 and 16; the younger one lives at home.

Watson also said that he owes Fanciullo money. About that, Fanciullo said, “OK, we’ll just leave it at that.”

How many suits does he own, Fanciullo asked. Watson, who was dressed in a suit, said, “One.” Fanciullo asked what he had bought it for, and Watson said his mother’s funeral.

Watson’s mother was diagnosed with cancer two years before Booze’s death — and for much of that period, “I really wasn’t concentrating on my jobs, I wasn’t doing as much [work] for the year and a half before the accident that I probably should have been,” Watson said. He was having financial difficulties before Booze’s death, and then, with the negative publicity, for the rest of last year, he said.

This year business has picked up again, he said. “I’ve been in business 20 years. My old customers have all called me back this year. I’ve been doing really good since about April of this year.”  

According to his testimony, then, Watson owns, in addition to $30,000 in equity on his home, at least $22,000 in assets. Asked this week if an employer’s ability to pay enters into an administrative law judge’s decision, Coleman said that he is unable to answer because this is an issue of law that relates to this case, about which the attorneys for the parties might disagree.

Responsibility

Watson said on the stand that he felt his two more experienced workers should have been supervising. “I felt Brendon [Andres] and Bobby [Burton] should have been looking out for John [Ciaccio] and Justus [Booze],” Watson said on the stand, referring to the tree-climber, Andres, and to Bobby Burton, who had often worked with Watson before and who had asked Watson to hire his friend Booze that day.

Watson’s attorney stopped just short of actually arguing that Booze leapt into the wood chipper on purpose.

Fanciullo asked Watson to repeat what he said to OSHA representatives in an interview just minutes after the “unfortunate incident.”

Watson told OSHA representatives that afternoon, he said, that it “almost seemed like he must have jumped in; that’s how fast it was.”

In his cross-examination, Duncan asked Watson if he was “insinuating” that Booze had jumped into the chipper on purpose. Watson said no, adding, “I don’t know what happened, really.”

OSHA’s attorney, Duncan, hammered Watson repeatedly on the stand about his responsibility for supervision, asking if he had hired Booze knowing that Booze had no experience with a tree service or with a chipper. Yes, he had known that, Watson said.

And in spite of that, he had allowed Booze to work unsupervised around the chipper, correct? Duncan asked. Watson said he had not.

Duncan responded, “If you did not see how he ended up in your wood chipper, you were not paying attention to him.”

Duncan asked him, rhetorically, if he were the sole owner of Countryside Tree. Duncan said, “It’s Tony Watson doing business as Countryside Tree Service, not Brendon John Andres doing business as Countryside Tree Service, correct?”

Matt London of NENY COSH, who attended most of the three-day trial, said this week, “It’s clear that Watson was giving mixed messages: ‘You can put stuff in the wood chipper while it’s not running.’ ‘You can’t put stuff in it while it’s running.’ ‘You can put stuff in it while it’s running, if someone is supervising.’”

And, because Watson was performing a dual role of worker and supervisor, he was not able to fulfill his supervisory role, London said. And, even though he had two completely “green” guys on the job that day, Watson worked the same way that he usually did: not concentrating too much on supervising, London said.

London said he had hoped to be convinced that Watson was a terrible person. Instead, he said, he came away with an impression of him as hapless.

“The only reason I don’t feel sorry for Tony,” he said, “is a man died on his watch.”

Outside the courtroom, after the proceeding ended, Watson told The Enterprise, “It was kind of a waste of the government’s money. All the money they spent, getting the judge here and doing all this. They could have lowered the fine amount.”