Secretary of Labor (MSHA) v. Morton Salt Division and Frontier-Kemper Constructors (ALJ decision, August 8, 1980)

Plain-English summary

A civil penalty case involving Morton Salt Division and independent contractor Frontier-Kemper Constructors was resolved by a proposed $500 settlement. The decision says the hazard was serious and that a fall through a gap by a suspended work platform could have caused severe injury even if workers wore safety belts. Judge Joseph B. Kennedy approved the settlement after reviewing the parties' submissions and apportioned the payment between Morton Salt and Frontier-Kemper. Morton Salt was ordered to pay $200 and Frontier-Kemper $300, with the case dismissed subject to payment.

Decision snapshot

• Cited standard: None identified in this decision.
• Outcome: $500 settlement approved, with $200 allocated to Morton Salt and $300 to Frontier-Kemper.
• Key point: The judge approved the agreed penalty after considering the hazard and each party's relative responsibility.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703) 756-6210
8 AUG 1980

SECRETARY OF LABOR,
: Civil Penalty Proceeding
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
: Docket No. CENT 80-59-M
Petitioner
: A.O. No. 16-00512-05009
:
v. : Weeks Island Mine & Mill
:
MORTON SALT DIVISION,
:
MORTON-NORWICH PRODUCTS,
:
INC.,
:
Respondent, Third-Party
:
Petitioner
:
:
v. :
:
FRONTIER-KEMPER CONSTRUCTORS,
:
Third-Party Respondent
:

DECISION AND ORDER

On April 14, 1980, the trial judge denied a motion to dismiss a petition to implead the captioned independent contractor, Frontier- Kemper Contractors (FKC) as a third party respondent in this penalty enforcement proceeding. 1/ Thereafter, the three parties complied with the pretrial order and filed a motion to approve settlement in the amount of $500 which is approximately 170% of the amount initially assessed, $295.

Based on an independent evaluation and de novo review of the parties prehearing submissions and motion, I conclude the gravity of the hazard, which was serious, when discounted for the probability of

1/ The Commission denied FKC's interlocutory appeal from this order on May 12, 1980. Because of the apparent novelty of this procedure and its potential for simplifying enforcement against independent contractors a copy of the trial judge's order of April 14, 1980 is attached. -Compare, Secretary v. Pittsburg & Midway Coal Mining Company, 2 FMSHRC _, August 4, 1980.

2180

injury despite compliance 2/ justifies acceptance of the settlement proposed. I further find that upon a consideration of the relative degree of culpability and responsibility of each respondent, the penalty should be apportioned as follows: Morton Salt, $200; FKC, $300.

Accordingly, it is ORDERED that the motion to approve settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that respondents pay their allocated portions of the total settlement agreed upon, $500, on or before Friday, August 29, 1980 and that subject to payment the captioned matter be DISMISSED.

Joseph B. Kennedy
Administrative Law Judge

Attachment

2/ The record shows that even if the men had been wearing safety belts and lines a fall through the 18 inch to 3 foot gap between the work deck on the suspended platform and the top of the concrete pour could have resulted in crushing injuries that may have proved fatal or disabling.

2181

Distribution:
Thomas A. Mascolino, Esq., Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

James A. Day, Esq., Cotten, Day & Doyle, 1899 L St., NW, Washington, DC 20036 (Certified Mail) William H. Howe, Esq., Loomis, Owen, Fellman & Howe, 2020 K St., NW, Washington, DC 20006 (Certified Mail)

2182