Austin Power, Inc.

Plain-English summary

Austin Power employees were installing a cross-pit spreader at the Big Brown Strip Mine when a boom moved unexpectedly after an eyelet failed. Steve Smith fell to his death, and two other employees were not injured. The Commission held that the Secretary did not prove a violation of the equipment-movement standard, but affirmed the finding that Smith was required to tie off his safety belt because his work exposed him to a danger of falling. It vacated the penalty for the first alleged violation and affirmed the penalty for the safety-belt violation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1607(g) and 77.1710(g)
• Outcome: The equipment-movement violation was reversed and its penalty vacated; the safety-belt violation and its penalty were affirmed.
• Key point: The Commission distinguished between employees being clear of foreseeable hazards from moving equipment and an individual worker's separate duty to use fall protection.

Full text (FMSHRC public release)

CCASE:
AUSTIN POWER V. MSHA
DDATE:
19871221
TTEXT:
FMSHRC-WDC
December 21, 1987
AUSTIN POWER, INC.
v. Docket Nos. CENT 86-59-R
SECRETARY OF LABOR, CENT 86-60-R
MINE SAFETY AND HEALTH CENT 86-61-R
ADMINISTRATION (MSHA)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v. Docket No. CENT 86-40
AUSTIN POWER, INC.

BEFORE: Chairman Ford; Backley, Doyle, Lastowka and Nelson,
Commissioners
DECISION
BY: Backley, Lastowka and Nelson, Commissioners
In this consolidated contest and civil penalty proceeding
arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. $ 801 et seq. (1982), the issues presented include whether
Commission Administrative Law Judge George A. Koutras erred in
holding that Austin Power, Inc. ("Austin Power"), violated two
surface coal mine safety standards: 30 C.F.R. $ 77.1607(g) requiring
equipment operators to be certain that all persons are clear before
starting or moving equipment 1/ and 30 C.F.R. $ 77.1710(g) mandating
that employees be required to wear safety belts and

1/ 30 C.F.R. $ 77.1607(g) provides:
Equipment operators shall be certain, by signal or
other means, that all persons are clear before starting
or moving equipment.
~2016
lines where there is a danger of falling. 2/ 8 FMSHRC 1671
(November 1986)(ALJ). The Commission granted Austin Power's petition
for discretionary review. For the reasons that follow, we reverse the
judge's conclusion that Austin Power violated section 77.1607(g) and
affirm his finding that Austin Power violated section 77.1710(g).
This case arises out of a fatal accident that occurred on
August 19, 1985, at the Big Brown Strip Mine located in Freestone
County, Texas. The mine is a surface coal mine owned and operated

Page 2

by Texas Utilities Company. Austin Power is an independent contractor
and was engaged in erecting a cross.pit spreader at the mine. The
spreader is an extremely large piece of tracked equipment that removes
top soil from the area to be mined. Two separate conveyor belt booms
extend horizontally from the spreader at different heights. The
higher 70-meter conveyor belt boom and the lower 20-meter conveyor
belt boom are designed to receive and transport topsoil that has been
removed from the ground by the spreader's digging apparatus. Opposite
these conveyor belt booms, another conveyor belt boom for discharging
the topsoil extends horizontally from the spreader.
On the day of the events at issue, the electrical power to
the spreader had not been connected and the booms were unable to
be moved on their own. The 20-meter boom had been released from
its shorings underneath the 70-meter boom and had been moved by a
518 Link-Belt crane laterally from west to east, so that five
counterweights, each approximately 24,000 pounds in weight, could be
installed. The counterweights balance the boom when in operation.
In order to install the counterweights, two separate cranes were used.
The 518 Link-Belt crane was connected to the receiving end of the
20-meter boom. The other crane, which was used to load the
counterweights at the boom's discharge end, was near the boom's
fulcrum.
After the loading of the counterweights was completed, the
20-meter boom was to be repositioned under the 70-meter boom. It
was determined that the 518 Link-Belt crane's boom could not pass
under the 70-meter boom and as a result, could not complete the
procedure of repositioning the 20-meter boom underneath the 70-meter
boom. Therefore, a cherry picker on the other side of the 70-meter
boom was to swing the 20-meter boom from the point beyond which the
crane could no longer proceed to the proper location under the
70-meter boom. Three employees of Austin Power were assigned to
attach a wire-rope choker to the end of the 20-meter boom for the
purpose of hooking it to the cherry picker. The three employees
walked to the end of the 20-meter boom's covered walkway and stood on
the walkway while the boom was being moved by the crane. The walkway
was 36 feet above the ground and was equipped with guardrails and
floor plates of metal grating.

2/ 30 C.F.R. $ 77.1710 provides in part:
Each employee working in a surface coal mine ...
shall be required to wear protective clothing and
devices as indicated below: ...
(g) Safety belts and lines where there is danger
of falling....
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Page 3

The three employees were wearing safety belts, but they did not
"tie off," i.e., attach their lines to the boom.
One of Austin Power's employees, Steve Smith, was in the
process of attaching the choker to the walkway frame near the end
of the 20-meter boom while the other two employees were standing
behind him. A rigging foreman for Austin Power, James Patterson,
was on the ground, 35-40 feet from the end of the boom, observing the
employees. While Smith was attaching the choker, an eyelet connecting
a hydraulic device at the opposite end of the 20-meter boom broke.
The eyelet failure caused the end of the boom to jerk suddenly upwards
in a "whiplash" motion. The three employees were propelled off the
boom, and the metal floor grating separated from the walkway and fell
to the ground. Smith fell to his death. The other two employees
grabbed onto part of the boom as they fell and were not injured.
The following day, an inspector of the Department of Labor's
Mine Safety and Health Administration ("MSHA"), Donald Summers,
arrived at the mine to investigate the accident. As a result,
Summers issued citations alleging violations of sections 77.1607(g)
and 77.1710(g). Summers charged that because Smith and the other
two employees were on the 20-meter boom while it was being moved by
the crane, the crane operator "was not certain that all persons
were in the clear before he put his machine into operation" and,
consequently, that Austin Power had violated section 77.1607(g).
Govt. Ex. P.1. Summers also charged that under 77.1710(g) the
employees on the boom were required to have tied off their safety
belts since they were exposed to a danger of falling. In addition,
Summers found that both violations were "significant and substantial"
and that Austin Power was negligent. The Secretary proposed civil
penalty assessments in the amount of $3,000 for each violation.
At the hearing before Judge Koutras, the Secretary contended
that as applied to the facts of this case, section 77.1607(g)
required the crane operator before starting or moving the crane to
be certain that persons were not only clear of the crane, but also
not on the crane's load, here the 20-meter boom. As to section
77.1710(g), the Secretary and the MSHA inspector conceded at the
hearing that the two other employees present on the boom, but not
involved in the actual installation of the choker, were not required
to wear safety belts and to tie off. However, the Secretary asserted
that a reasonable employer would have required Smith to tie off when
assigning him to a task that required him to place his body between
guardrails on an elevated walkway thereby creating a danger of
falling. Austin Power responded that section 77.1607(g) did not
apply to the circumstances that existed at the time of the accident.
Austin Power argued that the employees were not riding the "load"
of the crane and, in any event, were in the clear because the very

Page 4

design and purpose of the 20-meter boom was to permit employee
access. Austin Power further argued that section 77.1710(g) was
not applicable, since working on the 20-meter boom did not involve a
hazard of falling. Also, it argued that its employees were required
to wear safety belts and lines where there was a danger of falling as
evidenced by its safety rules.
The judge rejected Austin Power's arguments. He determined that
section 77.1607(g) applied to the three employees "while on the moving
boom which was being lifted and maneuvered about during the course of
the
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workshift in question." 8 FMSHRC at 1716. He accordingly found
that the crane operator had a duty to be certain that the employees
were clear of the boom before the crane was ready to move the boom,
that this duty was not met, and that section 77.1607(g) was
therefore violated. Id. In concluding that Austin Power also
violated 30 C.F.R. $ 77.1710(g), the judge found that Smith's
position on the walkway while in the process of installing the
choker placed him in danger of falling. 8 FMSHRC at 1719-22. The
judge found that "it should have been clear to a reasonably prudent
person that a danger of falling existed and that Smith should have
tied off." 8 FMSHRC at 1722. The judge rejected Austin Power's
argument that its work rules regarding use of safety belts where a
danger of falling is present were adequate to defeat the violation in
this case. He found that an employee of Austin Power could reasonably
have concluded that he was not required to tie off while performing
work in an elevated walkway protected by handrails, 36 feet off the
ground. 8 FMSHRC at 1724-25.
Finally, the judge concluded that the violations were
"significant and substantial," and were the result of Austin
Power's negligence. The judge assessed civil penalties of $2,000
and $2,500, respectively, for the violations. Austin Power challenges
the judge's findings and conclusions regarding both violations.
We hold that section 77.1607(g) requires the operator of
equipment subject to the standard to be certain that all persons
within the potential zone of danger are clear from reasonably
foreseeable hazards resulting from the starting or moving of the
equipment. We agree with the judge that the standard applied to the
crane operator, but hold that the Secretary did not establish that
the crane operator failed to make certain that all persons, including
the three employees on the boom's walkway, were clear before he
started or moved the equipment. Accordingly, we find no violation of
the standard.
As contrasted with more detailed regulations, the requirement
of section 77.1607(g) that "[e]quipment operators be certain ...

Page 5

that all persons are clear before starting or moving equipment" is
the kind of regulation made "simple and brief in order to be broadly
adaptable to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496,
2497 (November 1981). Generally, the adequacy of an equipment
operator's efforts to comply with section 77.1607(g) is evaluated in
each case with reference to an objective test of what actions would
have been taken by a reasonably prudent person familiar with the
mining industry, relevant facts, and the protective purpose of the
standard. See, e.g., United States Steel Corp., 6 FMSHRC 1908, 1910
(August 1984); United States Steel Corp., 5 FMSHRC 3, 5 (January
1983); Alabama By-Products, 4 FMSHRC 2128, 2129 (December 1982). In
this instance, such a determination requires consideration of what a
reasonably prudent operator of the Link-Belt crane would have done
under the circumstances to make certain that all persons were clear
before he started or moved the crane.
Austin Power argues that the obvious purpose of the standard
is to require an equipment operator to make certain that he does not
hit bystanders with his equipment. According to Austin Power, the
crane operator received proper signals and made certain that all
bystanders were clear before starting or moving the& crane and that
the three employees were
~2019
clear because the crane could not come into contact with them.
A plain reading of section 77.1607(g) reveals that it does
not limit the protection it affords to any particular class of
persons, such as bystanders. It refers to "all persons" being
clear. In addition, the language does not suggest that the hazard
with which the standard is concerned is limited to situations in
which people might be run over or hit by the equipment itself.
Rather, the standard protects all persons within the potential
zone of danger from all reasonably foreseeable hazards resulting
from the starting or moving of the equipment. Under the standard,
therefore, it was the duty of the crane operator to make certain
that all persons within the potential zone of danger were clear of
reasonably foreseeable hazards before he started or moved his
equipment.
In this case, the 518 Link-Belt crane was being used to
reposition a boom on the cross-pit spreader. As an integral
part of the repositioning operation, the three Austin Power
employees were assigned to go to the walkway of the boom. The
walkway was intended by its very design to permit the presence
and passage of workers during the operation of the spreader.
Although the crane was to apply force to the boom in order to
effectuate a lateral movement, the three employees were clear of
any reasonably foreseeable hazard posed by that movement. They

Page 6

were on a covered walkway that was protected by a fall protection
system consisting of a top rail, mid-rail, and toe-board. Further,
movement of the boom and its attached walkway was anticipated in
the design and function of the spreader. The crane operator knew
that the employees were on the walkway to transfer the 20-meter
boom from his crane to the cherry picker on the opposite side and
the employees knew that the boom was to be moved. The crane
operator testified that he moved the rig upon receiving a signal
from ground personnel. Tr. 154. The crane operator also testified
that throughout the day of the accident he received signals and
instructions from supervisory personnel. Tr. 133. Before the
crane actually began to reposition the boom, the project general
superintendent was actively involved in issuing instructions to
the employees on the boom and to ground personnel. Tr. 249.
James Patterson, the rigging foreman, was on the ground underneath
the boom supervising the three employees and flagging the crane
operator. Tr. 203. Thus, the crane operator was aware of the
presence of the three employees on the protected walkway, was
receiving signals, and made a determination that all persons were
clear of any reasonably foreseeable danger resulting from the
starting or moving of his equipment. Tr. 144. The record contains
no proof that any of the employees on the walkway was in an
unprotected position at the time the crane operator began to
reposition the boom. Smith's attempt to attach the choker for
hooking onto the cherry picker, placing him in a danger of falling
as discussed below, appears to have occurred after the Link-Belt
crane had begun to move the boom. Therefore, we find that the crane
operator acted as a reasonably prudent person in similar circumstances
would have and, therefore, met' the duty imposed by the standard.
Consequently, we conclude that there is insufficient evidence to
support the judge's finding of violation of section 77.1607(g).
In concluding that Austin Power violated section 77.1710(g),
which provides that employees "shall be required to wear ...
safety belts and lines where there is a danger of falling," the
judge determined that Smith
~2020
was in danger of falling while attempting to attach the choker
and he found the substance and enforcement of Austin Power's safety
rules regarding the wearing of safety belts and lines to be lacking.
8 FMSHRC at 1722.25. In Great Western Electric Co., 5 FMSHRC 840,
842 (May 1983), the Commission, construing the corollary safety belt
standard applicable to underground metal and nonmetal mines, concluded
that a danger of falling exists when "an informed reasonably prudent
person would recognize a danger of falling warranting the wearing of
safety belts and lines." Further, in Southwestern Illinois Coal

Page 7

Corp., 5 FMSHRC 1672, 1675 (October 1983), the Commission concluded
that section 77.1710(g) mandates that an operator establish a program
requiring the wearing of safety belts and lines where dangers of
falling exist and enforce the requirement diligently.
The administrative law judge concluded that in the
circumstances of the present case a reasonably prudent person would
have recognized that a danger of falling existed and that Smith
should have tied off. Our task on review is to determine whether
substantial evidence supports the judge's finding. 30 U.S.C.
$ 823(d)(2)(A)(ii)(I). Substantial evidence is "such evidence as a
reasonable mind might accept as adequate to support [the judge's]
conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). As recited by the judge, the evidence establishes that while
attempting to attach the choker, Smith was on his knees near the end
of the boom, reaching under the middle railing of the guardrail with
at least his head outside the railing. 8 FMSHRC at 1722. His hands
were occupied with swinging the choker cable under the walkway from
one side and catching it on the other. This was occurring in a
location 36 feet above ground. Given the circumstances and the work
Smith was performing, we conclude that a reasonably prudent person
would have recognized a danger of falling and would have tied off.
Consequently, we hold that substantial evidence supports the finding
of a violation of section 77.1710(g).
The judge also addressed Austin Power's safety rules concerning
the use of safety belts and lines. The judge held that the safety
rules were inadequate because under those rules an employee working
36 feet above ground on an elevated walkway protected by handrails
could conclude that he was not required to tie off. In addition,
the judge found the safety rules to be inadequate because under
circumstances in which the employee reaches through the railings,
the decision to tie off is left to the discretion of the employee.
8 FMSHRC at 1724-25. We agree with the Secretary that consideration
of Austin Power's rules was unnecessary to a disposition of the case.
In Southwestern, in response to the Secretary's argument that an
operator must guarantee the wearing of safety belts, the Commission
stated that "when an operator requires its employees to wear belts
when needed and enforces that requirement, it has discharged its
obligation under the regulation." 5 FMSHRC at 1675. In the instant
case, the controlling issue is whether safety belts and lines were
"needed," that is, whether there was a danger of falling, not whether
Austin Power's program requiring the use f safety belts and lines was
adequate. Austin Power did not regard Smith's failure to tie off
under the circumstances he faced as a violation of its rules and
policies because, in its view, no danger of falling was presented.
The rigging foreman testified that Smith was not required to tie off,

Page 8

Tr. 197, and this argument has been vigorously advanced on review.
The issue of the adequacy of an operator's program and its enforcement
is only relevant when an operator contends that an employee violated
the
~2021
requirements of its program due to the employee's disobedience or
negligence. Southwestern, 5 FMSHRC at 1675 (quoting North American
Coal Corp., 3 IBMA 93, 107 (April 1974)). Because Austin Power does
not contend that Smith violated its safety rules or that he was
disobedient or negligent, but insists that Smith was not required to
be tied off, Southwestern Illinois is inapposite. We conclude that
substantial evidence supports the judge's finding that a danger of
falling was present and we affirm his finding of a violation of
section 77.1710(g).
Finally, we affirm the judge's finding that the violation
of section 77.1710(g) was "significant and substantial" and was the
result of Austin Power's negligence. A violation is properly
designated significant and substantial "if, based on the particular
facts surrounding the violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness
of a reasonably serious nature." Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981); Youghiogheny s Ohio Coal Co.,
9 FMSHRC 673, 677 (April 1987): see also, Consolidation Coal Co. v.
FMSHRC, 824 F.2d 1071, 1078-79 (D.C. Cir. 1987). In Mathies Coal Co.,
supra, 6 FMSHRC at 3.4 (January 1984), we explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary must prove: (1) the
underlying violation of a mandatory safety standard;
(2) a discrete safety hazard -- that is, a measure of
danger to safety contributed to by the violation: (3) a
reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious
nature.
The third element requires the Secretary to establish a reasonable
likelihood that the hazard contributed to will result in an injury
producing event. Furthermore, it is the contribution of a violation
to the cause and effect of a hazard that must be significant and
substantial, U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August
1984), and the violation itself "must be evaluated in terms of
continued normal mining operations." YoughioghenY & Ohio, 9 FMSHRC
at 677-78; U.S. Steel Mining Co., Inc., 6 FMSHRC 1575, 1574 (July
1984).
The discrete safety hazard contributed to by the violation of

Page 9

section 77.1710(g) was the danger of falling. Based on the evidence
recited above describing Smith's position on his knees with at least
his head beyond the guardrails while attempting to attach the choker
while 36 feet above ground, we conclude that even if the work had
proceeded normally, a fall under the circumstances was reasonably
likely. Accordingly, we affirm the judge's finding that the
violation was of a significant and substantial nature.
Regarding the judge's finding of negligence in connection
with this violation, the rigging foreman was directly supervising
Smith's work from the ground and was able to observe Smith's body
position and efforts to attach the choker. Tr. 195-97, 203. We
agree with the judge that with the exercise of reasonable diligence,
the foreman should have recognized the
~2022
falling hazard to which Smith was exposed and should have
instructed Smith to tie off. 8 FMSHRC 1730. The negligence of
the foreman was properly imputed to the operator in determining the
amount of civil penalty. Wilmot Mining Co., 9 FMSHRC 684, 687 (April
1987); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (August 1982).
Accordingly, we reverse the judge's finding that Austin Power
violated section 77.1607(g) and vacate the civil penalty assessed by
the judge for the violation. In addition, we affirm the violation of
section 77.1710(g) and the civil penalty assessed.
Richard V. Backley, Commissioner
James V. Lastowka, Commissioner
L. Clair Nelson, Commissioner
~2023
Chairman Ford and Commissioner Doyle, concurring in part and
dissenting in part:
We join in the majority's decision to the extent that it
reverses the administrative law judge's finding that Austin Power,
Incorporated violated section 77.1607(g) and vacates the civil
penalty assessed by the judge for that violation. 1;e would,
however, reverse the judge on a more basic ground, viz. that the
standard does not apply to the facts presented in this case. We
also respectfully dissent from the decision to the extent: that it
affirms the judge's finding of a violation of section 77.1710{g)
and the civil penalty assessed for that alleged violation.
30 C.F.R. $77.1607(g) provides:
Equipment operators shall be certain, by signal
or other means, that all persons are clear before
starting or moving equipment.
The Secretary asserts that this standard prohibits any
employees from being on the boom of the spreader at any time
while it is being moved. Tr. 46, 69, 257. He believe that the

Page 10

plain meaning conveyed to a person of ordinary intelligence by the
standard as drafted is far closer to that articulated by the crane
operator at the hearing: "[I]t is your responsibility not to jump
into a rig, crank it up and run over the mechanic that is changing
your oil." Tr. 154. The hazard addressed in the crane operator's
statement is that posed by self-propelled mobile equipment that is
capable of injuring pedestrians or operators of nearby equipment who
are not adequately forewarned of a start up or movement. Thus, the
518 Link-Belt crane operator was responsible for seeing that the
ground around the crane and the path it was to take were clear
before starting or moving the crane. His testimony indicates that
he took those actions.
Section 77.1607(g) has been placed in Subpart Q - Loading
and Haulage and contains as its own heading: "Loading and haulage
equipment; operation." The record contains no evidence of the
history or purpose of the section nor does it contain evidence of
prior enforcement actions by the Secretary that would have put the
operator on notice that this regulation prohibited anyone from being
on the cross-pit spreader's boom at any time while it was being
moved by the Link-Belt crane. On the contrary, another section"
within Subpart 0. subsection 77.1601(c), specifically deals with
"Transportation of persons; restrictions" and specifically limits
and prohibits riding or being transported outside the cabs and beds
of mobile equipment, with no mention being made of the type
~2024
of equipment at issue in this case. Further, section 77.1607(f)
requires persons to notify the equipment operator before they get
on or off loading and haulage equipment.
All of this leads us to the conclusion that, if it were the
Secretary's intention to enjoin persons from riding on this
spreader boom at any time that it was in motion, that intention
was not adequately expressed in section 77.1607(g). See Phelps
Dodge Corporation v. FMSHRC, United Steelworkers of America, AFL-CIO,
Local Union 616, Intervenor, 681 F.2d 1189 (9th Cir. 1982).
"Laws [must] give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly." Alabama By-Products, 4 FMSHRC 2128, 2129 (December 1982)
(quoting Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972)).
The majority, in finding coverage by the standard, characterizes
it as one that is made "simple and brief in order to be broadly
adaptable to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496.
2497 (November 1981). However, such broad standards must afford
reasonable notice of what is required or proscribed. United States
Steel Corp., 5 FMSHRC 3, 4 (January 1983). We do not disagree that
the adequacy of the operator's efforts to comply with those standards

Page 11

that are designed to cover myriad circumstances is to be evaluated in
each such case with reference to those actions that would have been
taken by a reasonably prudent person familiar with the mining
industry, the relevant facts, and the protective purposes of the
standard. However, in this case, the Secretary's position permits
absolutely no latitude or discretion but, rather, asserts a very
specific requirement: that no one be permitted on the boom of the
cross-pit spreader while it is moving. If the Secretary's requirement
is so specific, he could have, and should have. said so. See Diamond
Roofing Co., Inc., 528 F.2d 645 (5th Cir. 1976). As the Commission
has held previously, broad standards "cannot be applied in a manner
that fails to inform a reasonably prudent person that the condition or
conduct at issue [is] prohibited by the standard." Mathies Coal Co.,
5 FMSHRC 300, 303 (March 1983). Safety standards, if they are to
ensure safety to miners and prevent accidents, must put the operator
on notice beforehand of :,hat is required of him.
We also dissent from the majority's affirmance of a violation by
Austin Power of 30 CFR $77.1710(g) because the record fails to
provide substantial evidence to support the judge's finding that a
danger of falling existed.
30 CFR $77.1710(g) provides, in relevant part, as follows:
Each employee working in a surface coal mine ...
shall be required to wear protective clothing and devices
as indicated below: ...
(g) Safety belts and lines where there is danger of
falling...
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Immediately prior to the accident, three employees were
situated along a covered walkway that was attached to the 20-meter
boom of the cross-pit spreader. The walkway was equipped with a
guardrail that consisted of a top rail approximately 42 inches above
the walkway surface, a mid rail and a toe board. The fatal accident
occurred when an eyelet on the spreader broke and caused the 20-meter
boom to jerk upwards, propelling the three employees upward from the
walkway into the air. One of the employees, Steve Smith, fell to his
death while the other two managed to regain a hold onto the structure.
After initially charging that all three employees were in danger of
falling, the Secretary conceded at the hearing that only Steve Smith
was in danger of falling prior to the accident and, therefore,
required to wear a safety belt and be tied off. The basis for the
Secretary's allegation of violation was that Smith's work activity of
installing a choker placed him in danger of falling. Therefore,
analysis of whether Smith's work activity placed him in danger of
falling must be made without consideration of the fact that Smith was
propelled from the walkway as a result of the eyelet failure, an event

Page 12

totally unrelated to his installation of the choker and, by all
accounts, totally unforeseeable.
Four witnesses testified on the issue of whether Smith's
installation of the choker placed him in danger of falling. MSHA
inspector Donald Summers, who participated in the investigation of
the accident, testified that there was a need for Smith to have a
safety belt and be tied off if he was performing work "outside" the
handrail. Tr. 105. However, Summers, who was not an eyewitness to
the event and began the investigation two days after it occurred did
not testify as to whether, by being "outside" the handrail, he meant
one's entire body, a portion of the torso, or any body part extending
beyond the handrail. The uncontradicted evidence was that Smith, who
weighed 235 pounds, was on his knees installing the choker with only
his hands and a portion of his head outside the railing, between the
mid rail and the toe board. Tr. 163, 170, 171. Inspector Summers
did not testify that this constituted being outside the railing, nor
did he offer his opinion as to how Smith's actions would have put him
in danger of falling. As mentioned, the inspector did not believe it
was necessary to be tied off at all times when one was on the walkway.
Indeed, Inspector Summers had traveled the very walkway in issue
without being tied off with a safety line. Tr. 103-105.
The second witness was Russell Crowell, the operator of the
518 Link-Belt crane that was being used to move the spreader's 20-
meter boom. Crowell was unable to observe Smith's position on the
walkway at the time of the accident, but he testified that he and
Smith had worked extensively on the spreader and he knew that Smith's
practice was to tie off whenever there was a risk of falling.
Tr. 143.
Jeffrey Arent, the third witness, was an eyewitness to the event,
and was located on the same walkway as Smith when the eyelet failed.
He testified that Smith was kneeling on the walkway at the time of the
accident with his head "just barely out" and his hands "out there"
(i.e. outside the guardrail) Tr. 163. Mr. Arent believed there was no
need to tie off under those circumstances. Tr. 173.
~2026
The last witness, James Patterson, rigging foreman at the site,
was also an eyewitness. At the time of the accident he was on the
ground some 35 to 40 feet from the end of the 20-meter boom. He
observed Smith kneeling on the walkway, putting the choker around the
framework. In his opinion Smith was not in danger of falling while
performing that work. Tr. 197.
In order to establish substantial evidence that a danger of
falling existed, the record must do more than create a suspicion of
the existence of that fact. Rivas v. Weinberger, 475 F.2d 255, 257
(5th Cir. 1973). Anything in the record that "fairly detracts" from

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the weight of the evidence must also be considered and a finding
should not be sustained "merely on the basis of evidence which in and
of itself justified it. without taking into account contradictory
evidence or evidence from which conflicting inferences could be
drawn..." Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951).
In this case, the testimony of the two eyewitnesses to the event,
Arent and Patterson, that they did not believe that Smith's extension
of his hands and part of his head beyond the guardrail placed him in
any danger of falling, when coupled with the testimony of the crane
operator that Smith was a careful individual who used his safety belt
and line when exposed to a falling hazard, results in a record that
provides formidable evidence that Smith was not exposed to such a
hazard when he was installing the choker. This evidence must be
considered along with the testimony of inspector Summers who was not
at the scene at the time of accident, only 'understood' what Smith's
position was while installing the choker, did not elaborate as to what
he meant by being 'outside' the handrails and did not explain how
Smith's actions would put him in danger of falling. Considering the
entire record, we believe it fails to provide substantial evidence
that a danger of falling existed prior to the totally unrelated,
unforeseeable event of the eyelet failure.
There being no evidence to support the finding, the judge's
determination that "Mr. Smith's position on the walkway while in the
process of installing the choker in question placed him in danger of
falling" is without foundation. 8 FMSHRC 1671, 1722 (November 1986).
Similarly, the judge's statement that the railing afforded Smith
"little protection a"d that he [Smith] could have lost his balance
while attempting to swing the choker under the walkway and fallen to
the ground" are conclusions unsupported by the record. Id. at 1722.
Accordingly, we would vacate the finding of a violation of 30 CFR
$77.1710(g).
Ford B. Ford, Chairman
Joyce A. Doyle, Commissioner
~2027
Distribution
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Jennifer A. Youpa, Esq.
Steven R. McCown, Esq.
Jenkens & Gilchrist
3200 Allied Bank Tower
Dallas, Texas 75202

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Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041