Secretary of Labor v. Leeco, Inc.

Plain-English summary

A continuous-miner operator at Leeco's No. 68 Mine was fatally pinned after entering a red-zone pinch point while trying to free the machine. Leeco stipulated that the accident involved an S&S violation of its roof control plan, leaving negligence and the penalty as the disputed issues. The Judge found moderate negligence and assessed the Secretary's proposed $21,442 penalty because a superintendent had counseled the miner months earlier for approaching the red zone and asked the foreman to watch him. The Commission majority reversed, finding that Leeco had responded with counseling, monitoring, training, safety meetings, and posted warnings, while the Secretary did not show what more a reasonably prudent operator should have done. It remanded for a new penalty without an operator-negligence finding; Commissioner Cohen dissented and would have upheld the Judge.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220(a)(1)
• Outcome: The moderate-negligence finding and $21,442 penalty were reversed, and the citation was remanded for a new penalty assessment.
• Key point: When an operator has taken specific preventive steps, the Secretary must prove what additional action a reasonably prudent operator would have taken before negligence may be found.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA)

v.

LEECO,
INC.

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Docket
No. KENT
2012-166

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

DECISION

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

Pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a
citation to Leeco, Inc. after MSHA investigated a fatal accident at the
operator’s No. 68 Mine. The citation alleged a violation of Leeco’s roof
control plan. At the hearing, the only issues were the operator’s negligence
and the amount of the penalty. A Commission Administrative Law Judge found that
Leeco was moderately negligent and assessed the penalty amount that the
Secretary of Labor proposed. 36 FMSHRC 1866 (July 2014) (ALJ).

Leeco
filed a petition for discretionary review, which we granted. For the reasons
set forth below, we reverse the Judge’s decision and conclude that substantial
evidence does not support a finding that the operator was negligent. As a
result, we remand to the Judge for assessment of a new penalty.

I.

Factual and
Procedural Background

This case involves whether, and to what
extent, Leeco was negligent in supervising one of its continuous mining machine
operators. Continuous miner operator Bobby Smith had run a continuous mining
machine on Foreman Harry Bronson’s section for six to seven months. Smith was
killed while attempting to free the continuous miner after it was hung against
the rib during a cleanup run. There were no witnesses to the accident, and the
foreman was in another part of the section doing a pre-shift inspection when
the accident occurred. The Secretary’s inspector who investigated the accident
determined that Smith was killed after he stepped into the “red zone” while
trying to free the machine. The “red zone” is a pinch point area where serious
and fatal crushing accidents have occurred. According to the inspector, Smith
was pinned against the rib when the continuous miner broke free. 36 FMSHRC at
1867, 1870; Tr. 105.

Smith had 12 years of mining experience,
and he had worked as a continuous mining machine operator at Leeco for 89 weeks
before the accident. “[A] couple of months” before the accident, Superintendent
Rick Campbell observed Smith standing “in the outer area of the red zone” while
he was tramming the continuous miner. 36 FMSHRC at 1867. Campbell made Smith
shut down the machine, counseled him about what he did wrong and how important
it is to avoid the red zone, and showed him where he should and should not
position himself. Id. at 1867, 1871; Tr. 81-83. Campbell also spoke with
Foreman Bronson about the incident and asked Bronson to watch Smith for more of
this behavior. Bronson testified that he watched Smith for red zone violations,
but did not observe Smith approaching the red zone after Campbell spoke with
him. Bronson admitted that he did not observe Smith tramming the continuous
miner very often. 36 FMSHRC at 1868.

All of Leeco’s miners undergo annual training,
which includes discussions of red zone issues. Posters explaining the dangers
of the red zone are hung in the mine foreman’s office as well as Leeco’s
changing rooms, light house, and warehouse. Leeco also holds weekly safety
meetings, and red zone issues are discussed in these meetings about once a
month. Id. at 1870. Campbell did not recall holding a safety meeting in
response to Smith’s red zone incident. Id. at 1868. Bronson testified
that he had never seen Smith in the red zone while operating the continuous
miner. He also testified that he had no reason to believe Smith would enter the
red zone while operating the continuous miner, but the judge disregarded this
testimony. Id. at 1870, 71.  

MSHA issued the citation after completing
its investigation. It alleged a violation of 30 C.F.R. § 75.220(a)(1), which
requires the operator to develop and follow a roof control plan. Leeco’s roof
control plan required that “[w]hile using remote controls, the continuous
mining machine operator and all other persons will position themselves [w]hen
the continuous mining machine is in operation, in a safe location away from
such machine and away from pinch points created by either the continuous mining
machine and/or haulage equipment.” Sec’y Ex. 4 at 10. The parties stipulated to
the fact of a violation. The parties also stipulated that the violation was
significant and substantial (“S&S”),[1]
that one miner was fatally injured, and that Leeco abated the citation in good
faith and in a timely manner. At the hearing, the only issues were the
negligence level and the penalty amount.

The Judge upheld the citation’s “moderate”
negligence designation and assessed the penalty amount proposed by the
Secretary—$21,442. The Judge found that the operator was moderately negligent
because Campbell had instructed Bronson to keep an eye out for Smith near the
red zone. The Judge decided that Bronson had reason to believe that Smith would
enter the red zone again because of this instruction, which made Smith’s actions
on the day of the accident foreseeable.[2]
36 FMSHRC at 1871. The Judge determined that, because of the need for this admonishment,
the operator should have been more vigilant about watching Smith and preventing
the accident. The Judge further found that Leeco took no “concrete steps” to
prevent continuous miner operators from entering the red zone. Id. at
1872. He dismissed Campbell’s actions in counseling Smith and asking Bronson to
keep an eye on him because Campbell did not follow up with Smith or Bronson at
a later time or hold a safety meeting about Smith’s conduct, and because
Bronson did not observe Smith tramming the continuous mining machine very
often. Id.

II.

Disposition

Leeco argues that there is no evidence
that Smith had ever actually entered the red zone before the accident, and that
the Judge erred by treating Smith’s conduct as a prior violation that proved
that Smith would enter the red zone in the future. According to Leeco, evidence
that an hourly employee came close to committing a violation should not prove a
level of knowledge sufficient to establish that Leeco was negligent. Leeco also
claims that its actions were consistent with the standard of care as outlined
by the Secretary’s witness. Leeco argues that because the Secretary concedes
that its miners were adequately trained, and because the company made
reasonable efforts to make sure that employees were aware of the red zone’s
dangers, it should not be held liable for Smith’s negligence. Finally, Leeco
contends that because it was not negligent, the penalty should be reduced.

In response, the Secretary argues that
regardless of whether Smith entered the red zone on the day that Campbell spoke
with him, the Judge correctly determined that Smith’s hazardous actions and
Campbell’s request that Bronson watch him for similar conduct put Leeco on
notice that Smith might enter the red zone in the future. The Secretary
contends that there is no evidence that Leeco made any changes to its safety
program, training methods, or the way it supervised Smith in response to his
previous incident. As a result, the Secretary claims that Leeco did not take
any steps that a reasonably prudent operator would have taken to ensure that
Smith did not commit any future violations.

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)). In Jim Walter Resources, Inc., the
Commission applied the substantial evidence test to the Judge’s conclusion
about the operator’s negligence. 36 FMSHRC 1972, 1976 (Aug. 2014) (“JWR”).

The operator has a duty of care to avoid
violations of mandatory standards, and the failure to do so can lead to a
finding of negligence when a violation occurs. A.H. Smith Stone Co., 5
FMSHRC 13, 15 (Jan. 1983). To determine whether an operator has met its duty of
care, the Commission considers what actions a reasonably prudent person who is
familiar with the mining industry, the relevant facts, and the protective
purpose of the regulation would have taken under the same circumstances. Brody
Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); JWR, 36 FMSHRC at
1975, citing U.S.
Steel Corp.,
6 FMSHRC 1908, 1910 (Aug. 1984). The Commission may evaluate the degree of
negligence using “a traditional negligence analysis.” Mach Mining, LLC v.
Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016) (citation omitted). Because
the Commission is not bound by the Secretary’s regulations addressing the
proposal of civil penalties set forth in 30 C.F.R. Part 100, the Commission and
its Judges need not apply, and in fact are not even required to consider, the
negligence standards in 30 C.F.R. § 100.3(d). Id. at 1263-64.

In cases where a rank-and-file miner has
violated the Act or its mandatory standards, the Commission examines the
operator’s supervision, training, and disciplining of its employees to determine
whether the operator had taken reasonable steps necessary to prevent the
rank-and-file miner’s violative conduct. Southern Ohio Coal Co., 4
FMSHRC 1459, 1464 (Aug. 1982) (“SOCCO”), citing Nacco Mining Co.,
3 FMSHRC 848, 850-51 (Apr. 1981). The Commission also considers the
foreseeability of the miner’s conduct and the risks involved when determining
whether the operator was negligent. A. H. Smith, 5 FMSHRC at 15, citing
SOCCO, 4 FMSHRC at 1463-64; Nacco, 3 FMSHRC at 850-51.

The test for negligence under these
circumstances is what a reasonably prudent operator, with knowledge of the
goals of the Act, would have undertaken under similar circumstances. Commission
Rule 63(b) states that the proponent of an order has the burden of proof. 29
C.F.R. § 2700.63(b). The key question here is whether, after Smith’s previous
red zone-related incident, the actions that Leeco took were those that a
reasonably prudent operator would have employed to ensure that Smith would not enter
the red zone in the future. The operator contends that its response—Superintendent
Campbell’s counseling of the miner, and instructing the foreman to watch the
miner in the future—was adequate.

The Secretary was required to meet his
burden of proof by showing what additional steps should have been taken. Because
the record lacks any evidence about what more the operator should have done to
meet the standard of care, we conclude that the Secretary failed to meet his
burden and show that Leeco was negligent.

The Secretary’s evidence as to what a
reasonably prudent operator would have done in this situation was very limited.
The inspector testified that the foreman “should have done better” at making
sure Smith did not have a practice of approaching the red zone. Tr. 44. When
asked how the foreman should make sure that the continuous miner operator is in
a safe position, the inspector suggested watching the miner operator from time
to time as he mines coal or changes places and discussing the red zone in
safety meetings. Tr. 55-56. Campbell and Bronson took these actions. Tr. 102,
104, 111-13. Later, the inspector explained that if a foreman is aware of a
miner who is positioning himself in the red zone, the foreman needs to “stop
that from happening and just spend more time to see that he’s not doing that.” Tr.
58-59. The inspector’s testimony about Smith’s previous incident was also weak
in that it did not demonstrate that Smith had ever actually entered a red zone.
The inspector testified that he believed that Smith had been disciplined for
working in the red zone in the past, but testified that he was “not a hundred
percent positive” of that. Tr. 59-61.

As a result of the Secretary’s limited
evidence, the Judge’s decision that Smith’s actions on the day of the fatal
accident were foreseeable is not supported by substantial evidence. Although
the Judge placed a great deal of weight on Smith’s previous red zone incident,
he did not make a clear factual determination that Smith had entered the red
zone. In fact, the record suggests that Smith did not actually enter the red
zone during the incident in which Campbell pulled him aside and counseled him.[3]
Therefore, Smith’s behavior, while a cause for concern, may not have amounted
to a violation of the roof control plan. This fact is important because Leeco
had to decide, after the first incident occurred, what actions to take to
prevent Smith from placing himself in harm’s way, without the benefit of
hindsight.

Leeco did not fail to act in response to
Smith’s prior incident. Having the mine superintendent pull a miner off of his
machine for a counseling session is a significant event that could be expected
to get a miner’s attention. The counseling that Smith received from Campbell is
something that should be encouraged. While it could show that Smith had some
tendency to approach the red zone, it also shows diligent efforts by Leeco’s
management in attempting to actively prevent red zone violations.

Asking the foreman to keep an eye on a
miner was also a reasonable response to the situation. The Judge stressed that
Bronson admitted to not observing Smith tramming the machine very often. 36 FMSHRC
at 1872. However, Bronson did observe Smith, and he never observed Smith enter
or approach the red zone again after Campbell spoke with him. Tr. 111-13.

We
also note that, prior to Smith’s incident, the operator already had several
measures in place to prevent red zone-related injuries. Posters explaining the
dangers of the red zone were hung in Leeco’s mine foreman’s office, changing
rooms, light house, and warehouse. 36 FMSHRC at 1870; Tr. 103-04. Leeco held
weekly safety meetings, in which it discussed red zone issues about once a
month. 36 FMSHRC at 1870; Tr. 102. Leeco’s miners also received annual training,
which included discussions of red zone issues. Id.

Where the operator has taken
significant, specific steps to prevent violations, the Secretary must establish
that a reasonably prudent operator would have done more under the circumstances
to meet its duty of care. Simply arguing that the operator “should have done
more” is not a satisfactory standard. See JWR, 36 FMSHRC at 1977. 

The Judge’s reliance on certain “best
practices” was inappropriate. 36 FMSHRC at 1872. Although there was very little
testimony or evidence from the Secretary about how to meet the standard of
care, the Judge listed certain measures that the operator could have taken in
response to Smith’s actions.[4]
Because Leeco did not take any of these steps, the Judge found that the
operator did not meet the standard of what a reasonably prudent mine operator
would have done under similar circumstances. The Judge characterized several of
these measures as “best practices promulgated by MSHA.” Id. However, these
measures were not presented as “best practices” by the Secretary. The only
possible source of these measures in the record is the Action Plan that was put
in place to abate the violation. This plan is set out in the citation and
MSHA’s Accident Summary Report. Sec’y Ex. 1, Sec’y Ex. 3 at 6.

Using these measures as the yardstick by
which the operator’s actions should be measured is problematic. Abatement plans
are, by nature, subsequent remedial measures. Under Rule 407 of the Federal
Rules of Evidence, remedial measures taken after the fact cannot be used to
show negligence before the fact.[5]
Fed. R. Evid. 407. Rule 407 is based in part on “a social policy of encouraging
people to take, or at least not discouraging them from taking, steps in
furtherance of added safety.” Fed. R. Evid. 407 advisory committee’s note to
1972 proposed rules. Although the Federal Rules of Evidence do not directly
apply to Commission proceedings, we believe that the same policy makes the use
of measures set out in the post-accident Action Plan inappropriate as proof of
“best practices” that the operator should have had in place. This is especially
true in this case because they were presented without additional evidence that
they are in fact MSHA’s best practices.

In light of the foregoing discussion, we
conclude that the Judge’s decision is not supported by substantial evidence. Without
evidence that a reasonably prudent operator would have done more under the
circumstances, it was error for the Judge to conclude that Leeco’s response to Smith’s
previous incident was insufficient. Because the Secretary did not explain what
a reasonably prudent operator would have done under these circumstances, we
cannot find the operator to be negligent.

III.

Conclusion

For the foregoing reasons, we reverse
the Judge’s finding of moderate negligence and remand the case so that a new
penalty can be assessed for the citation.

/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:

On
June 24, 2010, a continuous mining machine fatally crushed operator Bobby
Smith, a miner at Leeco’s Mine No. 68 with 12 years of experience. Sec’y Ex. 3.
As recently as two months prior to the fatal accident, the mine’s
superintendent noticed Smith standing too close to the continuous miner. Tr.
80.[6]
In reversing the Judge’s decision and finding no negligence as a matter of law,
my colleagues have set a dangerous precedent. In the future, the Commission
will be at pains to distinguish this decision.  

Under
the Mine Act, operators have a duty to provide supervision, training, and
discipline to employees to prevent rank-and-file miners from violating safety
regulations. See Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug.
1982). The Commission has recognized that “[e]ach mandatory standard . . .
carries with it an accompanying duty of care to avoid violations of the
standard, and an operator’s failure to meet the appropriate duty can lead to a
finding of negligence if a violation of the standard occurs.” A.H. Smith
Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). An operator is negligent when it
fails to take such steps as a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purposes of the safety
standard would have taken under the same circumstances. See Brody Mining,
LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); Jim Walter Resources, Inc.,
36 FMSHRC 1972, 1975 (Aug. 2014) (“JWR”), citing U.S. Steel Corp.,
6 FMSHRC 1908, 1910 (Aug. 1984).

When reviewing an Administrative Law
Judge’s factual determinations, the Commission applies 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)). The Commission has similarly applied the substantial
evidence test in reviewing the Judge’s conclusion regarding an operator’s
negligence. See JWR, 36 FMSHRC at 1976. The judge’s credibility
determinations are entitled to great weight and may not be overturned lightly. See,
e.g., Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541
(Sept. 1992) (citation omitted). I believe that my colleagues have failed to
properly apply these principles in this case.

After
considering the evidence presented at hearing, the Judge concluded that Leeco
did not satisfy its duty of care to avoid a violation by ensuring that miners
remained a safe distance from the mining machines. 36 FMSHRC at 1872.[7]
The Judge found that Smith’s prior incident gave Leeco notice that the company
needed to take additional steps to prevent Smith from again infringing upon the
continuous miner’s safety zone. Id. In so finding, the Judge discounted
the testimony of the section foreman, Harry Bronson, who averred that he had no
reason to believe Smith would again get dangerously close to the continuous
miner. Id. at 1871. The Judge determined that the operator’s general
safety efforts did not satisfy the operator’s heightened burden. Id. at
1872. Rather, the operator needed to take specific steps to retrain miners on
avoiding red zones, increase monitoring and oversight of miners, or install
improved safety equipment on the mining machinery. Id.

My
colleagues overturn the Judge’s factual findings, asserting that the Secretary
has failed to explain what a reasonably prudent mine operator should have done.[8]
Slip op. at 5-6. However, the question is not whether the Secretary correctly
articulated what would comprise the operator’s duty of care under the
circumstances (including the fact that Smith had recently put himself into a
dangerous position near a continuous miner) but whether the Judge’s decision that
the operator failed to exercise the required standard of care is supported by
substantial evidence. See JWR, 36 FMSHRC at 1975 n.4 (Aug. 2014)
(rejecting the Secretary’s argument that the Commission must apply the standard
of care defined by the Secretary when considering whether the operator was
negligent).

Moreover,
it is a well-accepted legal principle that the duty owed is proportional to the
danger of the hazardous practice. See Palsgraf v. Long Island R. Co.,
248 N.Y. 339, 344, 162 N.E. 99, 100 (1928) (“[t]he risk reasonably to be
perceived defines the duty to be obeyed”). Accordingly, a reasonably prudent
mine operator is required to exercise an especially high degree of care when
miners are at high risk of a fatal accident. Here, working in close proximity
to the continuous miner is one of the most dangerous practices in underground
mining. See
www.arlweb.msha.gov/REGS/fedreg/final/2015/proximity-detection/ (“Since 1984,
there have been 35 deaths where miners have been pinned, crushed, or struck by
continuous mining machines in underground coal mines.”). In recognition of this
hazard, MSHA recently promulgated a rule requiring mine operators to install
proximity detection systems on continuous mining machines. See 30 C.F.R.
§ 75.1732; 80 Fed. Reg. 2188, 2199 (Jan. 15, 2015) (projecting that
requiring proximity detectors will prevent approximately nine deaths and
another 49 non-fatal crushing or pinning injuries over 10 years.)

To reach its conclusion, the majority
determines that the Judge improperly considered Leeco’s efforts to abate the
MSHA citation, in contrast to Rule 407 of the Federal Rules of Evidence. Slip
op. at 6. My colleagues’ reliance on Rule 407 of the Federal Rules of Evidence
is misplaced. Rule 407 reflects a public policy encouraging potential
defendants to fix hazardous conditions without fearing that those actions will
be used as evidence against them. Fed. R. Evid. 407 advisory committee’s note
to 1972 proposed rules (“ground for exclusion rests on a social policy of
encouraging people to take . . . steps in furtherance of added safety.”). That policy goal
is not present where MSHA has directed the abatement actions. The Mine Act
mandates abatement of safety violations. See 30 U.S.C. § 814(b). Moreover,
Congress chose not to apply the Federal Rules of Evidence to Commission
proceedings. Commission Judges are amply capable of weighing the probative
value of such evidence.

Smith,
an experienced miner, previously had disregarded substantial safety training
and improperly approached active mining machinery. Tr. 80. Leeco had numerous
avenues available to help prevent such a hazard from reoccurring, including
mandatory retraining, improved oversight, and additional safety measures. Sec’y
Ex. 3 at 6. The Judge weighed the evidence before him and the testimony at
hearing and concluded that Leeco did not satisfy the rigorous duty to ensure
miner safety imposed by the Mine Act. 36 FMSHRC 1872. Considering the record, I
find that substantial evidence supports the Judge’s findings and conclusion
that Leeco demonstrated ordinary negligence.

Accordingly,
I dissent.

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner  

[1] The S&S
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.”

[2] Although the
Judge ultimately placed a great deal of weight on Smith’s prior red
zone-related incident, the Secretary was apparently reluctant to offer evidence
concerning the prior incident, or even subpoena Smith’s disciplinary records,
out of concern that the response to Smith’s previous incident would be viewed
in the operator’s favor. Tr. 61-63.

[3] Throughout the
hearing, Campbell consistently testified that he did not see Smith in the red
zone when he pulled Smith off the continuous mining machine and counseled him. Campbell
stated that he saw Smith in the “area around the red zone,” and that Smith was
“approaching the red zone.” Tr. 79, 88, 90. Bronson also testified that
Campbell told him that Smith was “not in the red zone but he was borderline.” Tr.
111.

[4] For example,
the Judge noted that the operator did not put engineering controls in place to
prevent red zone fatalities. 36 FMSHRC at 1872.

[5] Rule 407 states
in part that “[w]hen measures are taken that would have made an earlier injury
or harm less likely to occur, evidence of the subsequent measures is not admissible
to prove . . . negligence . . . .” Fed. R. Evid. 407.

[6] My colleagues
place great emphasis on the fact that the Judge “did not make a clear factual
determination that Smith [previously] had entered the red zone” and that “the
record suggests that Smith did not actually enter the red zone during the
incident in which Campbell pulled him aside and counseled him”. Slip op. at 5. Given
that Campbell was not sure whether or not Smith was actually in the red zone,
it is hardly surprising that the Judge did not make a “clear factual
determination.” More importantly, however, it does not matter whether Smith was
actually in the red zone during the previous incident. The fact is, as Mine
Superintendent Campbell recognized, Smith was too close to a very dangerous
piece of equipment. He needed to be cautioned, and later, his work tramming the
continuous miner needed to be monitored.

[7] Earlier in his
decision, the Judge quoted the Secretary’s definitions relative to negligence
from 30 C.F.R. § 100.3(d). 36 FMSHRC at 1870-71. I agree with my colleagues
that an operator’s duty of care is not defined by the Secretary’s Part 100
regulations but rather by traditional negligence principles. Slip op. at 4. Brody
Mining, 37 FMSHRC at 1702; Mach Mining, LLC v. Sec’y of Labor, 809 F.3d
1259, 1263-64 (D.C. Cir. 2016). In this case, although the Judge quoted the
Secretary’s Part 100 definitions, he actually applied traditional negligence
principles to find ordinary (i.e., “moderate”) negligence. 36 FMSHRC at 1872.

[8] The majority
relies on JWR for support. Slip op. at 3-5. In that case, the Judge
determined that the mine operator (Jim Walter) had met its duty of care by
providing additional fall training and safety measures as directed by MSHA
following a similar accident just one month earlier. JWR, 36 FMSHRC at
1978, citing Jim Walter Res., Inc., 33 FMSHRC 362, 370 (Feb. 2011) (ALJ).
The Judge credited the operator’s witnesses and found that Jim Walter was not
on heightened notice that it needed to take further steps. 33 FMSHRC at 370. On
appeal, a majority of the Commissioners declined to disturb the Judge’s factual
findings and, applying the substantial evidence test, upheld his negligence
determination. 36 FMSHRC at 1976-77. In contrast, the Judge here discounted the
operator’s witnesses, found that the mine was on notice that it needed to
enhance safety precautions around Smith, and determined that the mine had not
taken any specific steps to meet that duty following Smith’s encroachment just
a few months prior. 36 FMSHRC at 1871-72. Another distinction is that in JWR,
the injury was to an employee of a contractor. The Judge’s finding of no
negligence in that case related to the supervision of the contractor by Jim
Walter, a far different situation than here, where Leeco’s own employee was
killed.