Whayne Supply Company

Plain-English summary

Whayne Supply Company employee James Paul Blanton was killed while working beneath the belly pan of a bulldozer at a surface coal mine. The Judge found that Whayne violated the requirement to securely block raised machinery before work was performed underneath it, but concluded that the violation was not caused by unwarrantable failure. The citation was affirmed as significant and substantial, and a $1,500 penalty was assessed after the Judge characterized the operator's negligence as moderate. The Judge vacated a second citation alleging that Whayne failed to inspect or arrange an inspection of the work area because certified personnel had made a sufficient examination. The decision covers two contest proceedings and the related civil penalty proceeding.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.405(b) and § 77.1713(a)
• Outcome: The raised-equipment citation was affirmed as significant and substantial with a $1,500 penalty. The work-area inspection citation was vacated.
• Key point: Machinery raised for work must be securely blocked before someone works underneath it, while a work-area examination need not include supervision of the worker's task or inspection of the worker's service truck when the cited standard does not require it.

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

                      September 7, 1995

                                  :

WHAYNE SUPPLY COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. KENT 94-518-R
: Order No. 4011758; 1/25/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. KENT 94-519-R
ADMINISTRATION (MSHA) : Citation No. 4011760; 1/25/94
Respondent :
: Mine: Job No. 17A
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. KENT 95-556
Petitioner : A.C. No. 15-17434-03501 A25
: Job No. 17A
v. :
WHAYNE SUPPLY COMPANY, :
Respondent :

                             DECISION

Appearances: Joseph A. Worthington, Esq., Smith & Smith,
Louisville, Kentucky, for Contestant; and
Brian W. Dougherty, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for Respondent.

Before: Judge Amchan

              Background and Issues Presented

 On January 20, 1994, James Paul Blanton, a field service

technician employed by Whayne Supply Company (Whayne Supply),
was killed when struck by the belly pan of a bulldozer. At
the time of the accident, Blanton was underneath the bulldozer

Page 2

at a surface coal mine operated by Addington Mining Company
(Addington) in Pike County, Kentucky. The Mine Safety and
Health Administration (MSHA) conducted an investigation of this
accident and issued the two contested citations at issue in this
matter.1

 Citation No. 4011760 alleges a violation of section

104(d)(1) of the Act and 30 C.F.R. ' 77.405(b). This regulation
provides that, "[n]o work shall be performed under machinery or
equipment that has been raised until such machinery or equipment
has been securely blocked in position." Subsequent to the
hearing in this matter a $50,000 civil penalty was proposed for
this alleged violation.

 Citation No. 4011758 alleges a violation of 30 C.F.R.

'77.1713(a). This citation alleges that Mr. Blanton's foreman,
Charles Crisp, did not inspect Blanton's work area or arrange for
Addington to make such an inspection. A $204 civil penalty has
been proposed for this alleged violation.

 For the reasons stated below, I conclude that Whayne Supply

violated '77.405(b) as alleged, but that such violation did not
result from Whayne Supply's "unwarrantable failure" to comply
with the standard. I therefore affirm the violation as a
significant and substantial section 104(a) citation and assess
a $1,500 civil penalty. Citation No. 4011758 is vacated.

          The events leading up to the accident

 Several days prior to January 20, 1994, a D10 Caterpillar

bulldozer owned and used by Addington at a surface coal mine in
Pike County, Kentucky, broke down (Tr. 19-20, 84). The dozer was
moved out of the way of mining operations into a flat open field
(Tr. 42-43, 84). Once Addington's mechanics determined that they
could not fix this bulldozer, Addington called Whayne Supply
to send a field service technician to their mine to repair the
bulldozer.

 1
  Identical citations were issued to Addington, which were

contested and then settled prior to a hearing.

                            2

Page 3

 Whayne Supply sells and services Caterpillar machinery

and equipment in Kentucky and Indiana. It regularly services
such equipment on Addington mine sites. On the afternoon of
January 19, Blanton, a field service technician working out of
the Ashland, Kentucky branch office, was called by his supervisor,
Charles Crisp, and assigned to the Addington mine site the next
morning (Tr. 245).

 On January 20, Blanton drove his service truck from his home

to Addington's No. 17A Mine in Pike County. Upon his arrival, he
met with Addington's foreman, Ronnie Keaton. Keaton sent Blanton
to repair the disabled D10 bulldozer. Later in the morning
Keaton drove to the bulldozer to oversee the digging of a shallow
trench (Tr. 134). The bulldozer was then pushed over the trench
so that Blanton could lower the belly pan and gain access to the
vehicle's defective torque converter.2

 Prior to beginning work on the bulldozer, Blanton

repositioned his service truck so that the right rear of the
vehicle was close to the bulldozer (Exhibit G-8, photo 2).\n+Blanton's truck was equipped with a small crane located on its
right rear. This crane is normally used to support a chain which
is run under the belly pan and attached to the opposite track to
prevent the pan from falling abruptly when the bolts are loosened
(Exh. C-3, Tr. 216, 408-09).

 2
  The D10 bulldozer has three belly pans, which are removable

sections on the bottom of the vehicle, designed to allow access
to components located directly above (Tr. 152-53). To gain
access to the torque converter, Blanton had to loosen the bolts
of the middle belly pan, allowing it to swing down on hinges on
one side of the pan (Tr. 117-122, Exh. G-8, photo Nos. 10-13).

                            3

Page 4

 Blanton spoke briefly to Keaton, Addington's superintendent

David Maynard, Addington's maintenance foreman James Cox and the
D10's operator, Tony Boggs.3 He was then left alone to repair
the D10's torque converter. Shortly before noon he was found
dead or dying, pinned by the belly pan underneath the bulldozer.
He was found in a sitting or kneeling position. The belly pan,
which weighed approximately 500 pounds, had swung down on its
hinges and was laying against his neck and back. The bolts
holding up the pan had been removed with an air wrench. The
belly pan had not been secured by a chain or other device before
the bolts had been loosened.

 Terry Crawford, a Whayne Supply technician who was at the

Addington mine to repair another vehicle, arrived at the accident
site shortly after Blanton was discovered. Crawford climbed on
the back of Blanton's service truck and hit the top button of the
control panel for the crane boom (Tr. 229). The crane boom did
not move. Crawford then told Addington's maintenance supervisor,
James Cox, that the boom did not work (Tr. 230). On the next day
Crawford told MSHA investigators that he tried to move the boom
and that it did not work (Tr. 231).
3
At the hearing on May 2, 1995, Boggs testified that Blanton
told him that the crane boom would not work when he tried to warm
up his truck at 1:00 a.m., on January 20, 1994, and that he had
trouble with the air compressor as well (Tr. 58). I am unable to
credit this testimony in view of the fact that when interviewed
by MSHA on January 21, 1994, Boggs did not mention that Blanton
had said the boom was not working (Tr. 90-93). At the earlier
interview Boggs told MSHA that Blanton said he had trouble
starting his truck early in the night but that he was able to
start it later (Tr. 90). This is consistent with foreman Crisp's
account of his conversations with Blanton prior to the accident
(Tr. 245-48).

                            4

Page 5

 I conclude that the Secretary has not established that the

boom did not work on the morning of January 20, 1994. I credit
Crawford's testimony that he was unfamiliar with the controls
on Blanton's truck and hit the wrong button to move the crane
(Tr. 332-36, Exh. C-6). I also credit the testimony of Service
Manager Jeffrey Suttle that since Blanton's air compressor
worked just prior to the accident, the boom would also have
worked (Tr. 379). Finally, the boom did work when Foreman Crisp
activated it on January 25, 1994, albeit at a much higher ambient
temperature (Tr. 128, 154, 239, 363-67).

 Moreover, even if the boom had not worked, Blanton had the

means to safely secure the belly pan before loosening its bolts.
His truck was equipped with a cable come-along which he could
have used to do this task safely without the boom (Tr. 368,
Exh. G-4).

        Contestant violated 30 C.F.R. ' 77.405(b)

 Whayne Supply does not contend that Blanton removed the

belly pan in a safe manner. It questions the applicability
of the cited standard and the degree to which MSHA holds it
responsible for Blanton's negligence. The Secretary takes the
position that when the bulldozer was pushed over the trench dug
by Addington, it became "raised" within the meaning of section
77.405(b) (Tr. 300). I concur with this interpretation of the
regulation and find that Whayne Supply violated this standard
as alleged, because Blanton's conduct is imputed to Whayne Supply
for liability purposes, A. H. Smith Stone Co., 5 FMSHRC 13, 15
(January 1983). The regulation prohibits work under machinery
or equipment that has been raised until it has been "securely
blocked."

 I interpret "securely blocked" to have the same meaning as

the phrase "blocked or mechanically secured to prevent accidental
lowering," in the corresponding metal/non-metal safety standard
at 30 C.F.R. ' 56.14211(b) (see Midwest Material Corporation,
16 FMSHRC 636, 638 n. 1 (ALJ April 1995-review granted June 5,
1995)). Thus, when the bolts were loosened on the belly pan,
working under the belly pan violated the standard unless the pan
was blocked or secured with a device such as a metal chain hooked
to a crane or come-along.

                            5

Page 6

       Is Blanton's Negligence Imputed to Respondent for
     Purposes of determining whether the violation was due
         to an "unwarrantable failure" and assessing a
                           penalty4?

 The negligence of a rank-and-file miner ordinarily cannot

be imputed to an operator for penalty purposes. However, the
operator's supervision, training and disciplining of its
employees must be examined to determine if the operator has
taken reasonable steps to prevent the rank-and-file miner's
violative conduct, Southern Ohio Coal Co., 4 FMSHRC 1459, 1464-5
(August 1982).

 4
  Civil penalties were proposed in this matter after the

May 2-3, 1995 hearing. The contest cases were stayed pending
issuance of the proposed penalties from May 18, 1994, to
February 24, 1995, when I set them for hearing. In my notice of
hearing, I invited the parties to seek consolidation of civil
penalty proceedings or to present evidence regarding the section
110(i) penalty criteria, depending on whether or not civil
penalties were proposed by MSHA prior to hearing. At the hearing
on May 2, 1995, the Secretary's counsel advised me that the
Assistant Secretary had decided to wait to propose civil
penalties (Tr. 8-9).

                               6

Page 7

 Although I am unaware that the Commission has so held

directly, it follows that the same rule applies to the imputation
of a rank-and-file miner's conduct for purposes of determining
whether an operator's violation was due to an "unwarrantable
failure5." Mr. Blanton was not a supervisory employee. However,
I impute his negligence to Respondent, because the record does
not establish that Whayne Supply took such reasonable steps in
training and supervising Blanton, that it should be completely
absolved of responsibility for his violative conduct for
negligence and penalty purposes.

 There is no indication that Blanton received any formal

training regarding safe procedures for removing a belly pan in
the field (Tr. 216-220, 255-56). Whayne Supply service
technicians are trained to avoid or minimize time spent under a
suspended load (Tr. 255-56, 405). It is not clear how a
technician would understand the application of this rule to
belly pan removal. There is no evidence that Mr. Blanton was
ever instructed by Whayne Supply that if he had to get under the
belly pan, he had to have it secured before he started loosening
the bolts. There is also no evidence that Blanton had been
instructed or trained to remove the bolts in a manner whereby
only one arm would be under the belly pan, as described by
Mr. Crawford (Tr. 346-7).

 Whayne Supply hires experienced mechanics and relies heavily

on on-the-job training for its field technicians (Tr. 208-09,
219, 372). Blanton received no supervision in the performance
of his tasks. His foreman, Charles Crisp, never reviewed his
performance and relied on reports from other Whayne Supply
employees and possibly customers (Tr. 254).

 Mr. Blanton's reputation was that of a very competent and

safe mechanic (Tr. 144-45, 165, 172-73, 244). Indeed, Addington
maintenance supervisor James Cox sometimes specifically asked
Whayne Supply to dispatch Blanton (Tr. 173). By all accounts,
Blanton's failure to use a cable to support the belly pan was
very unusual (Tr. 159, 229, 368).
5
In Rochester & Pittsburgh Coal Company, 13 FMSHRC 189,
196-7 (February 1991), the conduct of a rank-and-file miner was
imputed to the operator in finding unwarrantable failure because
the miner was acting as the agent of the operator in conducting
workplace examinations. I do not find that decision applicable
to the instant case. Although there may be situations in which
an employee working alone should be deemed the agent of the
operator for civil penalty/unwarrantable failure purposes, I do
not think that is so in all cases.

                            7

Page 8

 Nevertheless, I cannot conclude that in the absence of

specific training as to proper procedures for securing a belly
pan in the field, that Blanton's violative act was so unforeseeable
that Whayne Supply should be totally absolved from any
responsibility for it. The removal of the belly pan is
apparently a common task for Whayne Supply's field technicians.
In the absence of training in the proper procedure, the failure
of a technician to secure the belly pan was not completely beyond
Whayne Supply's control.

                            8

Page 9

Blanton's negligence and therefore Whayne's negligence was
not sufficiently "inexcusable or aggravated" to constitute
an "unwarrantable failure" to comply with the Act

 In retrospect, Mr. Blanton's conduct on January 20, 1995,

was very unwise. One nevertheless has to assume that he greatly
underestimated the likelihood that the belly pan could swing down
on him. Otherwise, he would not have placed himself under the
belly pan after he had loosened the bolts6.

 Conduct rising to the level of "unwarrantable failure"

has been characterized by the Commission as "inexcusable or
aggravated" as opposed to "thoughtless" or "inattentive."
Emery Mining Corp., 9 FMSHRC 1991, 2001 (December 1987).
Particularly in light of the fact that Mr. Blanton's actions
did not compromise the safety of others, I would characterize
his behavior as "thoughtless," rather than "inexcusable or
aggravated." I find his negligence to fall short of that needed
to establish an "unwarrantable failure," and therefore affirm the
citation issued to Whayne Supply as a "significant and
substantial" violation of section 104(a) of the Act.

 Finally, in assessing Contestant's responsibility for the

violation, it is necessary to consider the Secretary's contention
that Contestant's procedure for removing belly pans did not
comply with the standard (Secretary's brief at pp. 25-28, Tr.
274, 286-7, 297-8). MSHA argues that even if Blanton had followed
this procedure, there would have been a violation of '77.405(b).
It contends that to comply with the standard either cribbing
must be placed underneath the belly pan before the bolts are
loosened or two chains must be secured under it.

 6
  To some extent Blanton's conduct simply defies explanation.

He apparently was in good spirits on the morning of January 20
(Tr. 90) and was familiar with the proper procedure for removing
belly pans (Tr. 145).

                            9

Page 10

raised equipment. Furthermore, the MSHA program policy manual
states that cribbing is not the only method of compliance with
section 77.405. It provides as follows:

 77.405 Performing Work From a Raised Position;
 Safeguards. Mechanical means that are manufactured
 as an internal part of the machine for the purpose
 of securing a portion of the machine in a raised
 position are acceptable as meeting the requirements
 of this section.

 Although this manual does not have the force of law, it may

provide assistance in interpreting an MSHA regulation, King Knob
Coal, Co., 3 FMSHRC 1417, 1420 (June 1981). Given the Agency's
recognition that means other than cribbing fulfill the
requirements of the standard, it must do more than show that
cribbing was not used to establish a violation.

 To conclude that use of one chain violates the standard,

the record would have to show that a reasonably prudent employer
familiar with the mining industry and the protective purposes of
the standard would have recognized that relying on one chain was
a violation, Ideal Cement Company, 12 FMSHRC 2409 (November
1990). This has not been established. To the contrary, the
record indicates that Whayne Supply's procedure is the accepted
practice in its industry (Tr. 160, 182-83, 200-01, 283, 322).

 Furthermore, the record does not indicate that this practice

is not a prudent one (Tr. 431-34). Indeed, the use of cribbing
or a jack in the field when lowering the belly pan may be more
dangerous than securing the belly pan with a single chain
suspended from the boom of the Autocrane (Whayne Supply's brief
at pp. 23-26).7 I regard this as an additional reason to
interpret the standard in a manner that allows this procedure.

 7
  The most convincing argument that Whayne Supply makes in

this regard involves the exposure of the technician when lowering
the belly pan and then when bolting it back in place after
repairing the torque converter. It appears to be very difficult
to move the bulldozer once the belly pan is secured with a chain
(Tr. 397-98, 403). Unless the bulldozer is moved, the technician
must get under the raised pan to remove the blocking material in
order to lower the pan sufficiently to get at the torque
converter. The miner would also have to tighten the pan's bolts
prior to reinstalling the cribbing material, or work under the
unblocked belly pan while reinstalling these blocks (or jack) for
longer than it takes to simply tighten the bolts.

                           10

Page 11

Thus, in assessing Contestant's negligence in this matter, I
reject the contention that Whayne Supply's customary procedure
for lowering belly pans violated section 77.405(b).

              Assessment of a Civil Penalty

 The Secretary has proposed a $50,000 penalty for

Citation No. 4011760. I conclude a penalty of such magnitude
is not consistent with the criteria set forth in section 110(i)
of the Act. Of these factors, the most important is the degree
of Whayne Supply's negligence. The Secretary, in its narrative
findings for a special assessment, characterizes Whayne Supply's
negligence as "high." I would characterize it as "moderate."
This assessment considers both the "thoughtlessness" of
Mr. Blanton and the lack of formal training provided by Whayne
Supply regarding belly pan removal. While I conclude that
Whayne Supply may have relied too much on Mr. Blanton's prior
experience, it certainly was not a ridiculous assumption that he
knew not to place himself under a belly pan after the bolts had
been loosened.

 The gravity of the violation is obviously quite high as

established by Mr. Blanton's death8. These two factors lead me
to conclude that a $1,500 penalty is appropriate under section

110. Such a penalty is also consistent with Whayne Supply's
     size, previous violation history and good faith in abating the
     violation. Such a penalty clearly would not jeopardize Whayne
     Supply's ability to stay in business.

     I regard Whayne Supply's responsibility for the violation
     herein as comparable to that of the operator in Midwest Material
     Corporation, supra. The only distinctions I see between the two
     cases are that one of the employees involved in the fatal accident
     in Midwest was a supervisor, while Mr. Blanton was not. On the
     other hand, Blanton had worked for Whayne Supply for considerably
     longer than those miners had worked for Midwest Material. On this
     basis, I would find Whayne Supply somewhat more responsible than
     Midwest for not adequately training or supervising its employees.

     Whayne Supply did not violate 30 C.F.R. '77.1713(a) in

     8
     I conclude that the violation herein clearly meets the
     criteria for "significant and substantial" in Mathies Coal Co.,
     6 FMSHRC 1 (January 1984).

                            11
     

Page 12

failing to perform or arrange for an on-shift examination
               of Mr. Blanton's work area.9

 Section 77.1713(a) requires an examination of each active

working area and each active surface installation by a certified
person at least once each shift. An active working is defined
in section 77.2 as any place in a coal mine where miners are
normally required to work or travel.

 The theory of the citation is that Mr. Blanton's foreman,

Charles Crisp, failed to make such an examination or arrange to
have such an examination made by Addington. However, I conclude
that examinations of the active working that satisfy the standard
were made by Addington's foreman, Ronald Keaton, and
superintendent David Maynard (Tr. 42-43). Both were certified to
make such inspections (Tr. 42, 147).

 After sending Blanton to the open field where the D10

bulldozer was located, Keaton drove to that location. He had his
equipment operators dig a trench for Blanton to accommodate the
belly pan (Tr. 133-35). Keaton asked Blanton if he wanted the
bulldozer moved again and Blanton said no. I conclude that Keaton
made a sufficient examination of the work area to assure that the
work site presented no hazards to Mr. Blanton. A sufficient
examination of an open flat field removed from mining operations
may differ from what satisfies the requirements of '77.1713(a) in
an area in which, for example, blasting is going to take place.

 The fairly cursory look at Blanton's work area by Keaton and

Maynard fulfilled the obligations of Addington and Whayne Supply
under the cited standard (See e.g., testimony of MSHA Inspector
Stewart at Tr. 291). The hazard that killed Mr. Blanton had
nothing to do with the condition of his work area. The cited
standard placed no obligation on Addington to supervise the manner
in which Blanton performed his tasks or inspect his truck9.
Similarly, the standard and the Mine Act do not require Whayne
Supply to provide one-on-one supervision of a miner at all times.
Having found that a workplace examination satisfying the
requirements of '77.1713(a) was performed, I vacate Order No.
4011758.

 9
  The Secretary argues that Addington supervisory personnel

did not inspect Blanton's service truck or the bulldozer for
hazards (Secretary's brief at pp. 30-31). In the instant case,
Addington fulfilled its obligations by merely observing the area
in which Blanton was to perform his work.

                           12

Page 13

                          ORDER

 Citation No. 4011760 is affirmed as a significant and

substantial violation of section 104(a) of the Act. A civil
penalty in the amount of $1,500 is assessed.

 Citation No. 4011758 is VACATED.

 The assessed penalty shall be paid within 30 days of this

decision.

                            Arthur J. Amchan
                            Administrative Law Judge




                           13

Page 14

Distribution:

Joseph A. Worthington, Esq., Smith & Smith,
400 North First Trust Centre, 200 South Fifth St.,
Louisville, KY 40202-3238 (Certified Mail)

Brian W. Dougherty, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)

/lh

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