Secretary of Labor v. Trivette Trucking

Plain-English summary

A Trivette Trucking driver was fatally injured after his loaded coal truck lost steering control on a steep mine haul road, struck a berm, and overturned. MSHA issued orders alleging failure to maintain full control of moving equipment and failure to maintain adequate brakes. The Judge affirmed the loss-of-control violation but found no operator negligence or unwarrantable failure and assessed $1,000, while vacating the brake order. The Commission affirmed because the evidence did not reliably establish that overloading caused or contributed to the loss of control or show what Trivette could have done differently. It also upheld the brake-order vacation based on credited expert testimony that the limited defects would not prevent the truck from stopping in typical use. Commissioner Cohen dissented and would have remanded for consideration of excluded truck-manual and weight-ticket evidence.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1607(b) and 77.1605(b)
• Outcome: The loss-of-control violation remained affirmed without unwarrantable failure and with a $1,000 penalty; the inadequate-brakes order remained vacated.
• Key point: A failure-to-control violation did not itself prove aggravated operator conduct, and brake defects required proof that the brakes were inadequate for the truck's typical use.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA)

v.

TRIVETTE TRUCKING

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Docket No. KENT
2011-1223

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura,
and Althen, Commissioners

DECISION

BY: Jordan, Chairman; Young,
Nakamura, and Althen, Commissioners

This
case involves two orders issued to Trivette Trucking (“Trivette”) by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) in
connection with a fatal accident in which a coal truck hit a berm and turned
over. Pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act” or “Act”), MSHA issued orders alleging violations
of 30 C.F.R. § 77.1607(b)[1] (requiring full control of moving equipment) and 30 C.F.R.
§ 77.1605(b)[2] (requiring adequate brakes).

The Administrative
Law Judge found a violation of section 77.1607(b) but held that the Secretary
did not meet his burden of establishing that the violation was the result of an
unwarrantable failure. The Judge vacated the order alleging a violation of section
77.1605(b). 35 FMSHRC 1934, 1943–45, 1951 (June 2013) (ALJ).

For
the reasons that follow, we affirm the Judge’s decision.[3]

I.

Factual and Procedural Background

Premier Elkhorn Coal Company (“Premier”) operates a
surface coal mine in Kentucky and a nearby preparation plant. In December 2009,
Steve Johnson, chief mechanic of contract trucking company Trivette Trucking,
was hauling coal from the mine to Premier’s plant in a 2006 International Paystar
coal truck. During his first trip to the plant, Johnson began to experience problems
with his truck’s power steering after his truck was loaded with coal. Johnson
notified a fellow coal truck driver of the steering problem over the CB radio
and pulled his truck over so that he and the other driver could inspect the
steering system. They were not able to identify any defects, so Johnson resumed
driving to the plant.

The section of haulage road on which Johnson was
traveling was a relatively straight, but steep, gravel road flanked with berms
on both sides. After about 1300 feet at a downward grade of 15–18%, the road leveled out for approximately two miles.
While descending the steep section of the road, Johnson’s truck left the normal
travelway and started heading directly towards the left berm. Before the truck
began to make contact with the berm, Johnson jumped out of the truck’s cab but
was unable to clear the vehicle. Johnson became ensnared in the back left
tandem wheels and was dragged down the hillside until the truck ultimately
flipped over. Johnson’s injuries were fatal.

Following its fatality investigation, MSHA issued two
orders to Trivette, the independent contractor that owned and maintained Johnson’s
truck.[4]
Order No. 8230314 alleges a violation of 30 C.F.R. § 77.1607(b) for
failure to maintain full control over the haulage truck while it was in motion.
The order contends that Johnson’s truck was overloaded by 37,600 pounds based
on the maximum gross vehicle weight rating (“GVWR”) recommended by the truck’s
manufacturer and that the overloading contributed to Johnson losing control of
his vehicle. Order No. 8230315 alleges a violation of 30 C.F.R. § 77.1605(b) for
failure to maintain the truck’s brakes in adequate condition. The order notes
that axle grease was present on the left and right brake drums and that the
brake on the right rear tandem axle was not functional. MSHA designated both violations
as S&S and involving unwarrantable failures attributed to high negligence.[5]

The
orders issued to Trivette did not go to a hearing. Instead, the parties agreed
to adopt the record developed in the Premier case and filed
cross-motions for summary decision. 35 FMSHRC at 1935; see also Premier Elkhorn Coal Co., 35 FMSHRC 150 (Jan. 2013) (ALJ).

In
his decision, the Judge upheld the order alleging failure to maintain control
over the truck, but removed the unwarrantable failure designation. The Judge
found the Commission’s decision in Clintwood Elkhorn Mining Co., 35
FMSHRC 365 (Feb. 2013), to be controlling and thus held that Trivette violated §
77.1607(b) when Johnson failed to maintain control of his truck. 35 FMSHRC at
1942–43.[6]
However, the Judge attributed no negligence to Trivette and vacated the
unwarrantable failure designation. The Judge reasoned that the Secretary’s
theory of negligence had been premised on the unproven allegation that Johnson’s
truck was overloaded and found that there was insufficient proof to establish that
Trivette could have done anything to prevent the fatal accident. Id. at
1944–45.

With
regard to the order alleging inadequate
brakes, the Judge suggested that a violation
of section 77.1605(b) could be found if the Secretary could prove either: (1)
that the condition of the brakes of Johnson’s truck caused the accident, or (2)
that the defects in the brakes were significant enough to cause the brakes to
fail during typical usage of the vehicle. 35 FMSHRC at 1951. The Judge,
however, found that the accident was most likely attributable to a steering
problem or another problem that caused the brakes and steering to fail
simultaneously. Id. In addition, the Judge credited the testimony of
Premier’s expert witness that the brakes, while suffering from minor defects,
would have been adequate to stop Johnson’s truck at an estimated speed of 10
mph.[7]
 Accordingly, the Judge found that the Secretary had not met his burden of
proof to show that the brakes on Johnson’s truck were inadequate.

The
Commission granted the Secretary’s petition for discretionary review (“PDR”). In
his PDR, the Secretary argued that the Judge erred by removing the
unwarrantable failure designation from Order No. 8230314 and vacating Order No.
8230315.

II.

Disposition

A. Exclusion of Evidence

The Secretary
argues that the Judge erred in his analysis of whether Johnson’s failure to
maintain control of his truck constituted an unwarrantable failure by Trivette
Trucking to comply with a mandatory safety standard. In particular, the
Secretary contends that his case was prejudiced by a series of evidentiary
rulings that resulted in the exclusion of several key pieces of evidence.

At
the Premier Elkhorn hearing, the Judge did not admit Secretary’s Exhibit
29, a vehicle manual purported to apply to the truck Johnson was driving. The
Secretary had sought to introduce this evidence to establish that he truck’s
manufacturer warned that overloading in excess of the GVWR of 82,600 pounds
could cause “component failure, result in property damage, personal injury, or
death.” Tr. 222. The Judge also excluded Secretary’s Exhibits 13–17, which purported to demonstrate that Premier
regularly loaded trucks in excess of 120,000 pounds. These exhibits included
truck weight tickets for the trucks loaded immediately before Johnson’s truck
on the day of the accident and for loads that Johnson had taken a couple of
weeks prior to the accident. Tr. 53.

The
Commission’s procedural rules and other federal rules generally place a low bar
on the relevancy of evidence that can be
admitted. 29 C.F.R. § 2700.63(a); 5 U.S.C. § 556(d); Fed. R. Evid. 401; see
also In re: Paoli R.R. Yard PCB Litig., 35 F.3d 717, 782–83 (3d Cir. 1994) (finding Rule 401 to have “a low
threshold of relevancy”). However, an
error in admitting or excluding evidence is generally deemed harmless if a
party’s substantial rights have not been affected. Fed. R. Civ. P. 61.

For
the reasons set forth in our decision in Premier Elkhorn, we find that
the failure to admit the truck manual[8]
and the weight tickets constituted
harmless error. Premier Elkhorn Coal Co., 38 FMSHRC ___, No. KENT
2011-827 (July 8, 2016).

B. Order No. 8230314 –
Failure to Maintain Full Control of the Truck

Although he had
vacated a nearly identical citation issued to Premier, the Judge changed his
mind in his Trivette Trucking decision because of our decision in Clintwood
Elkhorn. 35 FMSHRC at 1942–43, citing
35 FMSHRC at 370. Thus the only issue before us is whether the Judge erred
in removing the unwarrantable failure designation.

We
conclude that the Judge’s factual findings and credibility determinations are
supported by the record and preclude a finding that the violation resulted from
an unwarrantable failure. The
unwarrantable failure terminology is taken from section 104(d) of the Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001.

The
Secretary’s allegations of a heightened degree of negligence were predicated on
the theory that Johnson’s loss of control of his vehicle was caused, or
contributed to, by the overloading of his truck. However, the Judge determined
that the record was insufficient to establish the Secretary’s theory.

The
Secretary’s evidence that Johnson’s truck was loaded in excess of 120,000
pounds is, at best, circumstantial. The fact that the Secretary only relied on
weight tickets of the truck involved in the accident from four dates prior to
the accident, and weight tickets of a different type of truck from the day of
the accident, calls into question the reliability of any inference as to the
weight of Johnson’s truck on the day of the accident. Moreover, the Secretary
was unable to convincingly establish that the GVWR set by the manufacturer was a
reliable measure for determining the maximum load that this particular truck
could safely transport. It is thus
difficult to discern what the operator could have done differently to prevent
or mitigate a hazardous condition or practice.

Even
considering the excluded evidence and assuming that Johnson’s truck was loaded
in excess of the manufacturer’s GVWR, the Judge’s findings do not support the
Secretary’s theory. Importantly, the Judge credited the testimony of Premier’s
expert witness, Steve Rasnick, who testified that Johnson’s truck was capable
of safely handling a 120,000 pound load. 35 FMSHRC at 1942. We see no basis for overturning the Judge’s determination
on this point. See, e.g., Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1541 (Sept. 1992) (stating that Judge’s credibility determinations
are entitled to great weight and may not be overturned lightly). Consequently,
we find that the Secretary has failed, as a threshold matter, to meet his
burden of proof as to the unwarrantable failure designation.

C. Order No. 8230315 – Failure to Equip Truck with
Adequate Brakes

To find a violation of section 77.1605(b), the Judge determined that the fact of the violation
could be established on either of two separate grounds. First, the Secretary
could show that the condition of the brakes on Johnson’s truck caused the fatal
accident. If the brakes played a role in the accident, the Judge reasoned that
the inadequacy of the brakes would be self-evident. Failing to establish the
brakes’ role in the accident, the Secretary could also prove a violation by
showing that the defects in the brakes were significant enough to cause the
brakes to fail during typical usage of the vehicle. 35 FMSHRC at 1951. The
Judge ultimately found that the Secretary had failed to establish either theory
and vacated the order.

On appeal, the Secretary argues that the Judge should
be reversed because his analysis concerning this second order was predicated on
his prior finding that the Secretary had failed to prove that the truck was
overloaded. The Secretary also contends that the Judge should not have credited
the testimony of Premier’s expert witness over his expert witness.

We conclude that the Judge’s finding that the brakes
did not cause the fatal accident is supported by substantial evidence.[9]
The events leading up to the accident were not indicative of an accident caused
by a brake failure. Prior to the accident, Johnson complained that he was
having difficulty steering his vehicle. Tr. 139–40. The problem was serious enough that Johnson felt the need to pull
the truck temporarily out of service to examine the vehicle.[10]
Additionally, at the scene of the accident there were no skid marks to indicate
that Johnson had unsuccessfully attempted to slow or stop his vehicle. Rather,
the tire tracks indicated that Johnson drove straight into the berm.

Furthermore, Premier’s expert witness advanced a
plausible theory of causation that better fit the evidence in the record. The
expert hypothesized that Johnson’s truck may have been stuck in idle mode, causing
both the brakes and steering to be simultaneously rendered ineffective. 35
FMSHRC at 1949–50. While the expert’s
testimony did not definitively conclude that the accident was caused by the
truck slipping into idle mode, the existence of the expert’s alternate theory
of causation substantially detracts from the Secretary’s theory of the case. [11]

Next, we examine the Judge’s finding that the defects
in the truck’s brakes were not significant enough to cause the brakes to fail
in typical usage. It was stipulated that the service brakes on Johnson’s truck
had some defects, but that alone is insufficient to constitute a violation of
section 77.1605(b). See 35 FMSHRC at 1937. Neither party’s expert
witness testified that the defects were great enough to render the brakes completely
inoperable. Rather, the disagreement lies in whether the brakes, in the
condition in which they were found during MSHA’s investigation, would have been
adequate to stop Johnson’s truck on the roads it typically travels.

The crux of the Judge’s analysis on this point is the
weight he gave to the testimony of each party’s expert witness. The Secretary’s
expert witness testified that the faults in the truck’s service brakes would
have prevented Johnson from safely stopping his vehicle and that it was likely
that the truck was traveling at a speed of more than 10 miles per hour. However,
the Judge gave little weight to this opinion due to the witness’ lack of
experience with steering systems, inconsistencies in his testimony concerning
the speed of the truck and the condition of the parking brake, and “generally
poor reasoning.” Id. at 1951. The Judge also considered the fact that the
Secretary’s expert appeared to have changed his mind on whether the speed at
which the truck was driven contributed to the accident. Id. at 1946.

At the same time, the Judge found that the testimony
of Premier’s expert witness was well explained. Id. at 1951.  Premier’s
expert witness testified that the defects in the service brakes were not
extensive, with only one of the six drum brakes too worn to have functioned. Notwithstanding
this defect, the expert testified that Johnson should have been able to stop
his vehicle traveling at a rate of 10 miles per hour. Id. Similarly,
Premier’s expert testified that the presence of grease on the brake drums and
evidence of past overheating would not have a meaningful effect on the brake’s
performance. Id. at 1947.

A Judge’s determinations of the weight given to expert
opinions may not be overturned lightly. Farmer, 14 FMSHRC at 1541; Penn
Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has
recognized that, because the Judge “has an opportunity to hear the testimony
and view the witnesses[,] he [or she] is ordinarily in the best position to
make a credibility determination.” In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona
Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)).

Although the Secretary offered some evidence that the
brakes on Johnson’s truck were incapable of stopping the truck, such evidence
was mainly derived from testimony from a witness that the Judge determined not to
be credible. We see no reason to take the extraordinary step of disturbing the
Judge’s credibility determination. Accordingly, we affirm the vacation of Order
No. 8230315.

III.

Conclusion

For
the foregoing reasons, we affirm the Judge’s decision removing the
unwarrantable failure designation for failure to maintain full control of the
truck and vacating the order alleging a failure to equip the truck with
adequate brakes.

/s/ Mary
Lu Jordan

Mary Lu
Jordan, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

Commissioner Cohen, dissenting:

This case involves a fatal accident to
Steve Johnson, the chief mechanic of Trivette Trucking (“Trivette”). Trivette
was an independent contractor, hauling coal for Premier Elkhorn Coal Company. On
the day of the accident, Johnson was driving a Trivette-owned truck and lost
control of his vehicle on a road with a 15–18%
grade.

Following an investigation, MSHA issued
citations to both Trivette and Premier Elkhorn, charging both companies with
violations of 30 C.F.R. § 77.1607(b), which requires operators to maintain full
control of moving equipment, and 30 C.F.R. § 77.1605(b), which requires adequate brakes on mobile
equipment. The Premier Elkhorn case came before a Commission Judge who
conducted a hearing, following which he dismissed all charges. Premier
Elkhorn Coal Co., 35 FMSHRC 150 (Jan. 2013) (ALJ). In critical part,
the Judge excluded significant evidence offered by the Secretary which tended
to show that the truck Johnson was driving was grossly overloaded, that the
trucks driven by Trivette employees in hauling coal for Premier Elkhorn were
routinely overloaded, and that the manufacturer of the truck had issued a
prominent warning that driving an overloaded truck can cause component failure
leading to injury and death.

Following the issuance of the Premier
Elkhorn decision, the Secretary and Trivette agreed, before the same Judge,
that the Trivette case could be decided on cross-motions for summary
decision, based on the evidentiary record made in the Premier Elkhorn
case and joint stipulations. The Judge then issued his decision in this case,
(1) upholding the section 77.1607(b) violation against Trivette but reducing
the negligence from high to none, eliminating the designation of unwarrantable
failure, and reducing the penalty to $1,000, and (2) dismissing the order which
charged a violation of section 77.1605(b). Trivette Trucking, 35 FMSHRC
1934 (June 2013) (ALJ). The Secretary appealed both decisions, and the
Commission directed review.

Earlier today, the Commission released its
decision in Premier Elkhorn Coal Co., 38 FMSHRC , KENT 2011-827 (July 8, 2016). Because
I could not conclude that the Judge’s erroneous exclusion of evidence
constituted harmless error, and because I disagreed with my colleagues’
consideration of the Judge’s handling of the two citations, I dissented from
the majority opinion in that case. 38 FMSHRC , slip op. at 13–18.

I incorporate my dissenting opinion in Premier
Elkhorn herein. For the same reasons expressed therein, I renew my dissent
here. I would vacate and remand this case so the Judge[12] could properly consider
all of the Secretary’s evidence in analyzing the

level of Trivette Trucking’s negligence in the section
77.1607(b) violation and in determining whether the company committed a
violation of section 77.1605(b).

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

[1]
30 C.F.R. § 77.1607(b) requires that “[m]obile equipment
operators shall have full control of the equipment while it is in motion.”

[2]
30 C.F.R. § 77.1605(b) provides that “[m]obile equipment shall be
equipped with adequate brakes, and all trucks and front-end loaders shall also
be equipped with parking brakes.”

[3] On this same date, the Commission is also issuing a decision
in a companion case which arose from the same incident. Premier Elkhorn Coal
Co., 38 FMSHRC ___, No. KENT 2011-827 (July 8, 2016); see also infra
note 4.

[4] Premier, the owner of the mine, was also issued two citations
for violating the same standards. See generally Sec’y of Labor v. Twentymile
Coal Co., 456 F.3d 151 (D.C. Cir. 2006) (the Secretary’s decision to cite
the owner-operator of a mine and/or its independent contractor, is an unreviewable
exercise of prosecutorial discretion).

[5]
The S&S and unwarrantable failure terminology
is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), which
distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard,” and establishes more severe sanctions for any violation that is
caused by “an unwarrantable failure of [an] operator to comply with . . .
mandatory health or safety standards.”

[6] Clintwood Elkhorn was issued shortly after the
Judge’s decision in Premier Elkhorn but before his decision in Trivette
Trucking. In Clintwood Elkhorn, the Commission found that
section 77.1607(b) did not require the Secretary to prove “a causal or
contributing factor for the loss of control” of a vehicle. 35 FMSHRC at 370.

[7] The Judge found the Secretary’s expert witness’s
testimony to the contrary to be unconvincing. 35 FMSHRC at 1951.

[8] While the threshold for admissibility is low, a party
seeking to introduce evidence must nonetheless provide a proper foundation to
establish its relevance. In the case of the truck manual, Commissioner Young questions
whether this was done. He notes that the Judge may have foreclosed the
Secretary’s efforts to provide a foundation for admissibility. Had the
exclusion of evidence been prejudicial, preventing a party from offering facts
demonstrating its relevance would be reversible error. See Gray v. North
Fork Coal Corp., 35 FMSHRC 2349, 2359–60 (Aug. 2013) (noting an abuse of discretion standard for evaluating
the Judge’s exclusion of evidence, but characterizing exclusion of critical
evidence as an “‘extreme’ sanction”). Conversely, if the Secretary had not
effectively made a record of the evidence’s relevance, his objection to the
exclusion of that evidence may be deemed waived. See Cavataio v. City of
Bella Villa, 570 F.3d 1015, 1021 (8th Cir. 2009) (the requirement of making
an offer of proof to preserve the issue for appeal is “[o]ne of the most
fundamental principles in the law of evidence.”); but see Waltzer v.
Transidyne Gen. Corp., 697 F.2d 130, 134 (6th Cir. 1983) (the
failure to make an offer of proof is not fatal where the “substance of the
excluded evidence is apparent from context within which the questions were
asked.”).

[9] When reviewing an Administrative Law Judge’s factual
determinations, the Commission is bound by the terms of the Mine Act to apply
the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial
evidence” means “‘such relevant evidence as a reasonable mind might accept as
adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)).

[10] We note that during the accident investigation, it
was discovered that the truck’s steering
system was not well maintained. Several seals on the truck’s steering mechanism
had been installed backwards, resulting in a leakage of power steering fluid. 35
FMSHRC at 1948.

[11] Of course, as a general matter, in order to prove a
violation of this standard requiring adequate brakes, the Secretary is not
required to prove that the violation caused an accident.

[12]
Judge Jeffrey Tureck, who decided this case, has retired. I would direct Chief
Judge Robert Lesnick to appoint another Judge to handle this case on remand.